Tuesday, June 23, 2015

Just because lone acts of harassment aren’t always actionable doesn’t mean you should ignore them


By now, you’ve likely heard of the furor over the Confederate flag following the horrific church massacre in Charleston, South Carolina. You haven’t? Well, watch this, from Last Week Tonight with John Oliver, and then let’s talk.


What are you to do if you have employees who like to display the Confederate flag at your workplace (think belt buckles, or do-rags, or maybe even small flags, or pictures thereof, in offices or cubicles)? Do you: a) permit it because solitary acts of harassment that are overtly severe or offensive likely are not actionable under Title VII; or b) prohibit it because it might make your African-American employees uncomfortable, or worse, offend them (heck, even South Carolina and Wal-Mart have relented on the issue)?

If we’re talking about a Confederate flag (or flags) as part of a deeper pattern of harassment, which includes other, more overt, acts, like nooses, monkeys, and racist language (like in this case), then it’s a no-brainer. You investigate, fire the offending employee(s), and institute some serious, heavy duty anti-harassment training. If you think you should do anything else, we need to have a serious talk.

But, if we’re talking just about a Confederate flag, without anything more, what are you to do? Ban, or not ban? 

I’m not suggesting you need a “no Confederate flag” policy, but, if you see, or learn of, an employee displaying this charged symbol, I suggest that you require its removal. You would not permit an employee to display a Nazi flag because of its very clear anti-Jewish meaning. For many African-Americans, the Confederate flag holds the same meaning. So, because you want a harmonious and inclusive workplace, you do the right thing, even if doing the wrong thing may not necessarily be illegal.

Monday, June 22, 2015

What’s next for Uber after independent-contractor loss?


In March, I reported on a lawsuit filed against Uber by a class of its drivers claiming that the taxi company mis-classified them as independent contractors. Apparently, that is not the only claim pending against Uber on this very issue. Earlier this month, a California Labor Commission hearing officer concluded that Uber had mis-classified one of its drivers. Uber has appealed the ruling. Frankly, I think Uber has a pretty good argument on appeal.

Here’s the full decision [pdf].

 

The hearing officer relied on the following factors to conclude that Uber’s drivers are employees, not independent contractors (with my critique in the parenthetical).
  • Drivers must provide Uber their personal address, banking information, and social security number. (Doesn’t a company want contact info for anyone providing services for it, and doesn’t it need other information so it can pay its contractors?)
  • Drivers cannot drive for Uber without a background check. (If a background check is the standard for an employee, then we might as well get rid of independent contractors all together.)
  • Drivers must register their cars with Uber, which cannot be more than 10 years old (Cannot a company set reasonable standards for its contractors?)
  • Uber monitors drivers’ ratings from passengers, and terminates the relationship if the rating falls below 4.6. (Contractors are not guaranteed contracts for life; if a contractor falls below certain standards, a company always has the right to terminate the relationship.)
  • Uber requires drivers to use its app to drive, and they cannot drive without using it. (How is this different than a taxi company tracking its drivers via GPS and directing routes; if anything, Uber drivers have more independence because they can turn down the fare at any time.)
  • Drivers are paid a set percentage of the total cost of each ride. (Isn’t this the hallmark of an independent contractor—pay by the job, not by the hour?)
Last week, I called for a “duck” test for independent contractors. Dear readers, Uber drivers absolutely look, swim, and quack like independent contractors. They control when and where they work; they are paid by the ride; they drive their own cars and are responsible for their own expenses; Uber does not supervise the drivers, but merely holds them to reasonable performance standards. If Uber’s drivers are employees, then what is left for independent contractors? Or, is this the beginning of the end of the ability of companies to use the services of contractors? 

Friday, June 19, 2015

WIRTW #371 (the “no more pencils…” edition)


I love school. I mean, I loved school when I was a student, but now that I work, and my wife works, I really love when my kids are in school. It means that I don’t have to expend any energy thinking about how they are going to spend their days. The bus picks them up and drops them off, period. Now that school’s out, however, we have to manage sitters and camps, and getting them to and from sitters and camps. So, we’ve spent the past two weeks dropping off and picking up at camp (which, for me, is 45 minutes from work, without traffic).

How do other employees, and their employers, cope with this seasonal time-management dance? Read “School’s Out!” Means More Free Time for Kids, But None for Working Parents. Here is Help for Employers Managing the Fallout. — via Employment Law Watch

Here’s the rest of what I read this week:

Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
Until next week…

Thursday, June 18, 2015

Get in the zone … the no-blacks zone


Does Title VII permit an employer to staff its stores based on the racial composition of its customers? That’s the question at the heart of EEOC v. AutoZone, currently pending in federal court in Chicago.

In the lawsuit, the EEOC alleges that the auto-parts retailer transferred African-American employees to certain stores in the Chicago area based on its conception that its Hispanic customers preferred to interact with Hispanic employees.

According to Employment Law 360 [sub. req.], AutoZone claims that the EEOC cannot prove its claim because the transferees would have suffered no loss in pay, benefits, position, or responsibilities, and therefore suffered no adverse employment action under Title VII.

Meanwhile, the EEOC claims that this brand of segregation is the exact type of discrimination Title VII is supposed to prohibit: “Structuring a workforce or work assignments by race is at the core of what Title VII was enacted to combat. Autozone’s argument boils down to the proposition that an employer is free to segregate its workforce so long as it is careful to do so through lateral transfers. Title VII is not that narrow.”

It seems to me that even if the pay, benefits, etc. were exactly the same in both stores, we abolished “separate-but-equal” 61 years ago, and Title VII should not permit an employers to Plessy v. Ferguson its workforce for any reason.

For more on customer preference as discrimination, check out the following two posts from the archives:

Wednesday, June 17, 2015

The “duck” test for independent contractors


Earlier this week, FedEx announced that it would pay an astounding $228 million to settle claims that it had misclassified drivers as independent contractors. This news comes on the heals on the Department of Labor’s announcement of pending guidance on independent contractor status.

Meanwhile, on the same day as the FedEx settlement, the Ohio Supreme Court issued its decision in State ex rel. WFAL Construction [pdf], which decided that under the facts presented, individuals working under a construction contract were “employees” for workers’ compensation purposes.

As a technical matter, in Ohio, R.C. 4123.01(A)(1)(c) lists 20 factors to determine whether a person is an “employee” for purposes of workers’ compensation; if 10 of those criteria are met, the worker is an employee. In WFAL Construction, the workers met the following 10 criteria:
  1. The individuals were required to comply with instruction from either the owner or an onsite lead carpenter.
  2. The services provided by these workers are integrated into the regular functioning of this employer as they do all of the work.
  3. The named persons on the various timesheets and logs performed the work personally.
  4. The individuals were paid by the employer.
  5. Records that were available to the auditor showed that the same workers performed work repeatedly for the employer.
  6. The individuals were paid for the specific number of hours worked on a weekly basis.
  7. As the employer had a supervisor or foreman on the worksite if he was not present himself, the Committee finds that the order of work was determined by the employer.
  8. Given the hourly payments, the workers would not realize a profit or loss as a result of the services provided.
  9. The employer has the right to discharge any of these individuals.
  10. There is no indication that any of the individuals would incur liability if the relationship ended.
Despite these specific criteria, I have reached the conclusion that the best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee. I know this isn’t clear guidance, but, much like how Justice Potter Stewart years ago famously defined obscenity, I think you know an employee when you see one. 

So, Department of Labor, bring on your guidance. I doubt it will be any clearer or more workable than my “duck” standard.

Tuesday, June 16, 2015

Legal marijuana remains off-limits in the workplace


It is likely that when Ohioans go the polls this November, we will have the opportunity to vote on whether to amend our state constitution to permit for the medicinal and recreational use of marijuana. Meanwhile, Cleveland.com reports that business groups are concerned over certain language in the proposed ballot measure, which, if passed, would require employers to accommodate their employees’ use of legally prescribed marijuana for medical purposes.

This language has employers questioning whether one could interpret the proposed amendment to mandate that employers permit certain employees to show up to work high, or, worse yet, use marijuana on-the-job.

To this end, business groups have been closely watching Coates v. Dish Network [pdf], a Colorado Supreme Court case asking whether an employer must accommodate an employee’s lawful use of marijuana under that state’s laws.

Thankfully, in a unanimous opinion, the Colorado Supreme Court held that the legality of marijuana under Colorado state law does not limit the right of an employer to otherwise regulate its use or effects in the workplace.

I have yet to read an opinion which suggests that legalized marijuana requires accommodation by employers for workplace use, even for medicinal purposes. Unless and until a court reaches that absurd conclusion, assume that employees have zero rights to show up to work high, even if personal off-duty marijuana use is legal under the law of your state, and even if the use is pursuant to a valid prescription to treat a medical condition.

Monday, June 15, 2015

Why don't discrimination laws protect everyone from abuse?


The Huffington Post asks the following question:
Laws Protect Certain Classes from Workplace Abuse: Why Not Everyone?
It’s a valid question. The law only protects an employee from being treated poorly at work if he or she happens to fall into a legally protected category, which, on the federal level, includes race, sex, religion, national origin, age, disability, genetic information, and military status. Depending in what state one happens to work, these classes might expand to include sexual orientation, gender identity, or marital status.

The article goes on to argue that “federal and state employment laws should be developed to protect all … from workplace bullying and companies from allegations of unfair treatment via clearly defined expectations for acceptable standards of behavior.”

Here’s the problem with this argument. You can’t legislate being an asshole. The world is full of them, and no set of laws, rules, or regulation will stop this mis-behavior. All it will do is either create an environment in which it is too expensive for employers to employ anyone because of the increased risk and attendant costs associates with firing anyone, or create an environment in which an employer fears managing anyone because of risk that the managed employee will cry “bully” and sue.

Yet, there is a tremendous amount of sex appeal behind the idea of anti-bullying laws. I believe, especially in the politically correct culture in which we currently live and work, that anti-bullying workplace laws are a likely inevitability. All it will take is one state to fall, and the rest will drop like dominoes. 

So, what is an employer to do? Shape up before a legislature requires it. Take a stand against bullies in your business. Treat all of your employees with the respect with which you would want to be treated if in their shoes. Hold your managers and supervisors accountable for any mis-treatment of employees, even if it falls outside one of the legally protected classes. Otherwise, the din of support for anti-bullying laws will grow into a roar that the government will not be able to ignore. While that would be good for my business, it most certainly would not be good for yours.

Friday, June 12, 2015

WIRTW #370 (the “I’m ready for my close-up”) edition


What are you doing at 8 pm tonight? I know what I’m doing. I’ll be watching Stossel on Fox Business Network. I was in New York on Tuesday taping a segment that airs on tonight’s show. Here’s the official description of my segment:
With politicians talking about job creation, you would hope government would make it easy to hire people. But the opposite is true. There are a thousand questions you may not ask when hiring someone… “how long have you been working?” or “how tall are you?” could get you into big trouble.
Pop some corn, or, if you’re out and about on a summer Friday eve, set your DVR, to get your seven-minute fix of Hyman on employment law.


Here’s the rest of what I read this week:

Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations

Thursday, June 11, 2015

Beware the email chain of fools


A software engineer rejected for a job by GoDaddy is suing the company for discrimination. Why does he believe that the company discriminated against him? According to USA Today, he read it in the email chain included in his otherwise vanilla rejection email.
The e-mail…, which appears to be sent from a group titled the “GoDaddy Recruiting Team,” begins with a tame form letter, explaining that Connolly had not been selected for a job as a mobile IOS developer. But the note he said he saw below it in the e-mail chain packed an unusual punch.
It read, “about keith he’s great for the job in skills but he looks worse for wear do we really want an obeese (sic) christian? is that what our new image requires of us.”
Like many before it, GoDaddy says that either it was hacked or the email was fabricated. Some computer forensics will sort out the truth of that defense. If it turns out that the email is legit, GoDaddy might want to rethink its “we are not offering any kind of settlement or an apology” position.

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun. 

And, before my employee-advocate readers get all over my case for defending one’s right to discriminate merely by keeping silent, yes, in an ideal world no one would think this way. But, my job is to defend the companies that have the misfortune of employing those that do. If GoDaddy is wrong, and one of its recruiters did send that email, then it should stand by its pronouncement that it is “proud to be an Equal Opportunity Employer” and settle, period.

Wednesday, June 10, 2015

Racist comments as protected concerted activity (really!)


Racism at work cannot be tolerated, right? So here’s a quick quiz. Assume you hear a white employee yelling the following at black co-workers:
  • “Hey, did you bring enough KFC for everyone?” and
  • “I smell fried chicken and watermelon!”
Do you: a) fire the offending employee; or b) brush it off? 

I’m going to lay pretty decent odds that most of you opted for choice “a.” Would you believe, though, that according to one NLRB judge, the answer depends on whether the racist employee is walking a picket line.

In Cooper Tire & Rubber Co. (6/5/15) [pdf], Administrative Law Judge Randazzo concluded that, while clearly racist, offensive, and inappropriate, the employer violated the NLRA when it fired the offending employee because he made the remarks in the context of a strike and there were no corresponding threats of violence:
Runion’s “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.… The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.
Thus, an employee is justified, under the NLRA, to be as racist as he wants to be as long as: 1) the comments are made in the context of otherwise protected, concerted activity, and b) the comments are not accompanied by violence or overt threats of violence.

Although the breadth of the NLRB’s current iteration’s interpretation of “protected concerted activity” should surprise no one, I am stunned that this ALJ has gone this far. 
  1. No employee should be subjected to this type of abuse, picket line or no picket line, and it is shameful that this type of misconduct is condoned.
  2. Employers should not be forced into a Hobson’s Choice between the NLRA and Title VII. Retaining the offender may save the employer from liability under the NLRA, but it won’t do the employer any favors if the victim pushes the issue under Title VII.
If nothing else, this case is a scary reminder of how far the NLRB and its judges will go to fine protected concerted activity. Employers, you are warned/


Tuesday, June 9, 2015

DOL set to publish guidance on independent-contractor status


Later this morning, I’ll board a flight for New York City to tape a segment for John Stossel’s Fox News show, to air Friday at 8 pm on Fox Business. We’ll be discussing the over-complexity of labor and employment laws, and their over-regulation of American businesses.

I’m certain one topic to be covered is our wage-and-hour laws. Serendipitously, according to Employment Law 360 [subscription required], Department of Labor Wage and Hour Division administrator David Weil recently announced that he will shortly publish an “administrator interpretation” to clarify who qualifies as an independent contractor.

The distinction between employee and contractor continues to beguile employers, and is ripe for problems under both wage-and-hour laws (among other legal entanglements). Individuals continue to file multi-million dollar class-action lawsuits claiming mis-classification as contractors cost them years of unpaid overtime. And, courts continue to take a hard line against companies that try to skirt their legal responsibilities via these mis-classifications.

Is it too much to hope for a reasonable interpretation from administrator Weil that permits bona fide contractors to remain classified as such? He speaks of a "holistic," as opposed to "mechanical" approach, which "requires a careful consideration of the economic realities and multiple aspects of the relationship." Expect a fuzzy standard with lots of gray area, which will continue to cause employers fits. Or, in other words, expect the status quo to continue, with employers who classify all but the clearest of workers as employees taking a huge wage-and-hour gamble.

Monday, June 8, 2015

Defining the three-headed associational disability claim


You likely know that the ADA protects employees from discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” But did you know that the ADA has three different theories to define this associational disability?
  1. Expense (the cost of insuring the associated disabled person under the employer’s health plan);
  2. Disability by association (a fear by the employer that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have); and 
  3. Distraction (the employee is inattentive at work because of the disability of the associated person).
In Williams v. Union Underwear Co., (6th Cir. 6/5/15) [pdf], the court rejected the plaintiff’s attempt to use each of these theories to challenge his termination after his wife was diagnosed with Wagner’s Vascular Disease, which weakened her immune system. Other than the coincidental timing between the the wife’s diagnosis and the alleged beginning of Williams’s adverse treatment at work, the court could not find any other evidence of disability discrimination. Absent something in addition to timing, the court could not conclude that Williams had presented sufficient evidence to get his discrimination claim to a jury.

We, as employers, often treat employee’s with family medical issues with kid gloves. We not only worry about potential liability under the ADA, but also the FMLA. Yet, these employees are not bulletproof. In Williams, the plaintiff had suffered years of marginal performance, and the employer had enough. Without something in addition to the mere fact that his wife suffered from a rare disease, this court was unsympathetic to his claim, which should provide hope to employers that want to hold all employees accountable to reasonable performance standards.

Friday, June 5, 2015

WIRTW #369 (the “see me, hear me”) edition


It’s been awhile since I’ve updated everyone on when and where you can hear me speak, and I’ve got a bunch coming up in the next few weeks. So, here you go:
Here’s the rest of what I read this week:

Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations

Thursday, June 4, 2015

Transgender rights take center stage


It’s been a big week for the rights of transgender Americans.
While we wait for the law the catch up to society’s opinion on LGBT rights (i.e., same-sex marriage rights and official statutory extension of Title VII’s protections to LGBT employees), our federal agencies are doing the best they can to modernize these laws for us. If you are still discriminating against LGBT employees, it’s time to stop. You are officially behind the times. It was not that long ago that LGBT rights were a joke. Now, we are on the verge of a breakthrough. Are you going to ride the wave, or hold onto the jam of the door that Caitlyn Jenner just kicked down kicking and screaming. The choice, for now, is yours, unless you run afoul of the EEOC, OSHA, or a court, each of which is doing is best to do what Congress has, thus far, refused.

Wednesday, June 3, 2015

Did the 6th Circuit just guarantee jury trials in off-the-clock wage/hour cases?


One of the most difficult things to do is prove a negative. Yet, this is exactly the problem that employers face when defending wage and hour cases in which the employee alleges work performed off-the-clock. The employer says that the time clock defines the paid limits of the workday, while the employee says that s/he should be compensated for work performed outside the parameters of those clock-ins and clock-outs.

In Moran v. Al Basit LLC (6/1/15) [pdf], the 6th Circuit was faced with a simple question—does an employee need something other than his or her own testimony to establish an entitlement to unpaid compensation under the FLSA?

Sadly, the 6th Circuit ruled in the employee’s favor.
Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty-eight hours.… However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy.… It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.”
This ruling is scary, and has the potential to work extortionate results on employers. If all an employee has to do to establish a jury claim in an off-the-clock case is say, “The employer’s records are wrong; I worked these approximate hours on a weekly basis,” then it will be impossible for an employer to win summary judgment in any off-the-clock case.

Employers, the cost of defending wage-and-hour cases just went up, as did the risk for businesses. Even meticulous wage-and-hour records might not save you from a foggy memory of a disgruntled ex-employee.

Tuesday, June 2, 2015

#SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case


Yesterday, the United States Supreme Court ruled that an employer violates Title VII’s religious accommodation requirements if the need for an accommodation was a “motivating factor” in its decision, regardless of whether the employer had actual knowledge of the religious practice or its need to be accommodated.

The case, EEOC v. Abercrombie & Fitch Stores [pdf], is an unambiguous win for religious freedoms, while, at the same time, places an added burden on employers to make educated guesses about applicants’ and employees’ potential needs for workplace religious accommodations.

Abercrombie involved a conflict between a hijab-wearing Muslim job applicant and the employer’s “look policy.” The unusually terse seven-page opinion (of which only a little more than three was dedicated to actual legal analysis) focused on the difference between motive and knowledge in explaining its holding:
Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.…
For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. 
So, if knowledge is irrelevant, what is an employer to when faced with one’s potential need for a religious accommodation? More the point, isn’t an employer faced with having to make educated guesses (based on stereotypes such as how one looks or what one wears) of the need for an accommodation? Title VII is supposed to eliminate stereotypes from the workplace, not premise the need for an accommodation on their use. And that’s my biggest critique of this opinion—it forces an employer into the unenviable position of applying stereotypes to make educated guesses.

Nevertheless, employers are stuck with the Abercrombie “motivating factor” rule as the rule for religious accommodations moving forward. Thus, let me offer a simple suggestion on how to address this issue in your workplace—talk it out. Consider using the following three-pronged approached to ACE religious-accommodation issues in your workplace.
  • Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation. 
  • Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.
  • Educate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.
This decision is a potential game-changer for employers. Make sure you understand the implications of Abercrombie, so that you are as accommodating as the law requires.

Image courtesy of Jeffrey Weston’s Ape, Not Monkey
http://www.apenotmonkey.com/2012/04/09/religious-accommodation/

Monday, June 1, 2015

6th Circuit: reasonable belief about unlawful conduct enough for SOX retaliation


It’s hard to imagine that in the eight-plus years I’ve written this blog, there is any area of employment law that on which I have not yet touched—except, I think, the Sarbanes-Oxley Act. Today, that changes.

For the uninitiated, Sarbanes-Oxley (or SOX) is a federal statute, enacted in reaction to a several corporate and accounting scandals (think Enron), which establishes conduct standards for public company boards, management and public accounting firms.

In Rhinehimer v. U.S. Bancorp Investments, Inc. (6th Cir. 5/28/15) [pdf], the 6th Circuit addressed the standard for protected conduct under SOX’s anti-retaliation provisions. Does the plaintiff have to prove an underlying fraud, or it is sufficient for the plaintiff to have a reasonable belief that a fraud was committed?

The facts in Rhinehimer are not complicated. Prior to taking a disability leave, Rhinehimer, a certified financial planner, transferred some of the assets of a long-term, elderly client into low risk, conservative investments. While on leave, Rhinehimer’s assistant alerted him to the fact that a co-worker moved some of those assets into riskier investments. Believing those moves to be contrary to the client’s estate plan, Rhinehimer sent an email to his supervisor complaining about the transactions. Upon his return from leave, Rhinehimer was disciplined for his “unprofessional” email. That email spawned an investigation by FINRA. When Rhinehimer informed his employer that he had retained an attorney in response to the FINRA investigation, he was fired.

At issue on appeal was whether a plaintiff claiming retaliation under SOX must allege the specific elements of fraud relating to the underlying transaction, or if a reasonable, but mistaken, belief about the illegality of the underlying (mis)conduct will support the retaliation claim.

The 6th Circuit held for the more liberal proof standard.
Although it is true that Plaintiff had no specific knowledge of whether Harrigan had omitted or misrepresented material information in his communications with Purcell, much less any knowledge of whether Harrigan did so intentionally or with reckless disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about the trades were above board, courts universally recognize that [SOX] protects employees who reasonably but mistakenly believe that the conduct at issue constitutes a violation of relevant law.… 
The information that was available to Plaintiff was more than adequate to allow him reasonably to believe that the trades were the result of conduct constituting unsuitability fraud. When USBII retaliated against him for reporting that information, it therefore violated Sarbanes–Oxley’s whistleblower protections.  
If you are a publicly-trade company, employees who lodge complaint about financial improprieties or other financial issues require special treatment. If faced with one of these complaints, do not get hung up on the rightness or wrongness of the complaining employee’s belief about the illegal conduct, because, if you later fire that employee, it appears the reviewing court will not care. 

Friday, May 29, 2015

WIRTW #368 (the “let's go Cavs” edition)


It’s t-minus six days until championship fever sweeps the most victory-starved city in America. Let’s go Cavs!

A photo posted by Cleveland Cavaliers (@cavs) on

Here’s the rest of what I read this week:


Social Media & Workplace Technology

Wage & Hour

Labor Relations

Thursday, May 28, 2015

A lesson on the importance of uniformity in performance standards


Under the ADA, and employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

What happens, however, when an employer holds a disabled employee to a higher performance standard than non-disabled counterparts? Consider Wolffram v. Sysco Cincinnati (S.D. Ohio 5/19/15).

The plaintiff in Wolffram was a diabetic, and, as a result, needed extra time for bathroom breaks during the work day. Those bathroom breaks caused Wolffram’s performance to suffer on Sysco’s electronic performance monitoring system. Because Wolffram consistently fell below the minimum performance requirements, Sysco ultimately terminated him. Nevertheless, he defeated Sysco’s summary judgment motion on his disability discrimination claim. How? Because he claimed that other non-disabled employees were given more slack on the performance standards, that other employees “cheated” the system but were not disciplined or terminated.

Employers, it’s okay to have performance standards. It’s even okay to require that each of your employees, disabled and non-disabled, meet those standards. When you start letting those standards slip, however, you become exposed to claims from disabled employees who cannot otherwise meet the requirements because of their disability. Yet another example of how the EEO laws require uniformity of application in your workplace.

Wednesday, May 27, 2015

“You’re late again!” “Talk to my lawyer.”


I’m timely to a fault. I hate being late, and go to great lengths to ensure that I am never tardy for anything. I think it’s annoying to those around me, or least those I live with. Just ask my kids.

Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.

Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.

Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.

Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.