WIRTW #384 (the “survey” edition)

Have you taken my survey on FMLA intermittent leave and salaried exempt employees? If not, click here, and answer two short questions. Let’s see if this is a problem in need of a solution, or a non-issue.

Should you deduct from an exempt employee’s salary for intermittent FMLA? [survey]

Suppose you have a salaried, exempt employee. You pay that employee a fixed weekly salary, regardless of the number of hours he or she works. Some weeks the employee works 40 hours, some weeks the employee works 30 hours, and some weeks the employee works 60 hours. In the calculus of a weekly paycheck, the number of hours worked is irrelevant. A salary covers all hours worked in a week, whether it’s one hour or 100 hours.

Let’s further suppose this salaried, exempt employee submits a request, and is approved for, intermittent leave under the FMLA. It could be for the employee’s own serious health condition, or that of a family member. As a result, this salaried exempt employee starts taking an hour or two off per week for doctor’s appointments related to the serious health condition. Is that FMLA time-off paid or unpaid, for the salaried, exempt employee?

Independent contractors: everyone has an opinion

Everyone’s getting in on the act of defining who is an employee versus an independent contractor. This week, it’s the NLRB’s turn. In Sisters’ Camelot (9/25/15) [pdf], the Board determined that terminated pro-union community canvassers were employees covered by the NLRA, not independent contractors.

The employer, a nonprofit organization that collects and distributes food to low-income individuals, funds its operation primarily through donations obtained by canvassers through door-to-door solicitations. The canvassers, classified by the employer as independent contractors, attempted to organize into a labor union. When the employer found out, it terminated the services of one the ringleader, and suggested to others that organizing would be futile. Unfair labor practice charges followed.

The NLRB concluded that the canvassers are employees, not independent contractors. In so ruling, it balanced the following 11 factors:

1. Extent of control by employer
2. Whether the individual is engaged in a distinct occupation or business
3. Whether the work is usually done under the direction of the employer or by a specialist without supervision
4. Skill required in the occupation
5. Whether the employer or individual supplies the instrumentalities, tools, and place of work
6. Length of time for which individual is employed
7. Method of payment
8. Whether the work is part of the regular business of the employer
9. Whether the parties believe they are creating an independent-contractor relationship
10. Whether the principal is or is not in the business
11. Whether the evidence shows the individual is rendering services as an independent business

The NLRB concluded that only two of the factors either favored independent-contractor status or were inconclusive on the issue—length of employment (which is sporadic and permits them to hold other jobs) and whether the parties believed they are creating an independent contractor relationship (with some testifying that they had signed independent-contractor agreements). The other nine, however, favored a finding of employee status:

Critically, when the canvassers work for the Respondent, they do so at times and locations determined by the Respondent. Their compensation is nonnegotiable and strictly limited by the Respondent’s time and location restrictions. Canvassers must generally use the Respondent’s tools and instrumentalities, including materials and transportation. They have no proprietary interest in any part of the canvassing operations, including their maps. They must keep accurate and detailed records as part of the Respondent’s close scrutiny of their activities. If they do not comply with the Respondent’s directives, they may be subject to discipline. Canvassers are also well integrated into the Respondent’s organization and identify themselves as part of it. The Respondent provides training, and canvassers need not have any specialized education or prior experience. While the Respondent conducts other fundraising activities beyond neighborhood canvassing, it could not fulfill its charitable mission without the canvassers, who procure most of its operating funds. Finally, there is no evidence showing that the canvassers render services as part of an independent business.

So, add labor organizing to the list of concerns employers need to have regarding independent-contractor classifications. It’s not enough to worry about whether they are employees for wage/hour purposes, workers’ comp purposes, or tax purposes, but also whether they are employees for union-organizing and other labor-relations (i.e., protected concerted activity) purposes. Even though this issue is now squarely in the NLRB’s line of sight, the suggestion on how to classify workers in close cases has not changed: unless one is clearly an independent contractor, over whom you exercise no control, the safest course of conduct is to classify that worker as an employee and not take any unnecessary legal risks.

Is digital “shunning” illegal retaliation?

Wired tells the story of an Australian tribunal, which ruled that an employee was illegally bullied at work, in part because a co-worker had unfriended her on Facebook.

Transfer this case to America, and assume that the employee is claiming retaliation based on the unfriending. Supposed Employee-A complains to HR that Employee-B is sexually harassing her, and, as soon as Employee-B finds out about the complaint, he unfriends Employee-A on Facebook. Does Employee-A have a claim for retaliation based on the unfriending?

The answer is likely no.

As a matter of law, an adverse action sufficient to support a claim for retaliation merely must be an action that would dissuade a reasonable worker from complaining about discrimination. Yet, the Supreme Court has stated that the adversity to support a claim for retaliation must be “material”, and that petty slights, minor annoyances, or a simple lack of good manners normally will not count:

We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….

A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

Thus, an ostracism or shunning from a social network—one that serves no work-related purpose other than fostering congeniality among co-workers—likely should not support a claim for retaliation.

Does an employee have to be “disabled” to claim retaliation under the ADA?

The ADA protects employees with disabilities? But what about its anti-retaliation provision? Does an employee have to be “disabled” under the ADA for the statute to protect that employee from retaliation? According to Hurtt v. International Services, Inc. (6th Cir. 9/14/15), the answer is no.

Hurtt worked at ISI as a senior business analyst, earning a yearly draw plus a percentage commission on sales. The day after he requested FMLA-leave for (job-related) anxiety and depression, ISI terminated his draw and switched him a commission-only comp plan. He sued, claiming, among other things retaliation for requesting various accommodations for his disability, including requests for a leave of absence and for a reduced work schedule.

The 6th Circuit reversed the trial court’s dismissal of Hurtt’s retaliation claim, holding that the mere act of requesting an accommodation is sufficient to raise the specter of retaliation, regardless of whether the employee is actually “disabled”:

We have held that requests for accommodation are protected acts…. Hurtt argues that he engaged in protected activity when he requested a reasonable accommodation and when he took FMLA leave…. But, the pertinent inquiry here is not whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable accommodations.

The takeaway here is more common sense than law. If Title VII can protect a white guy from retaliation when he complains that his black co-worker is being mistreated, the ADA certainly should protect an employee requesting a reasonable accommodation, whether or not a court determines after the fact that he is, or is not, legally “disabled”. Employees who request accommodations should always be treated with care; otherwise you risk stepping on a retaliation landmine.

WIRTW #383 (the “iOS” edition)

Thanks to iOS 9, you now have a new way to read the Ohio Employer’s Law Blog. If you own an iPhone or iPad, and have upgraded to iOS 9, you have a new app called “News.” Within that News app, search for “Ohio Employer’s Law Blog” and you’ll be able to read all of my daily updates in Apple-land. As for me, I’ll be reading on my new iPhone 6S, which, barring a FedEx mix-up, should be delivered this afternoon.

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

Discrimination

• Alcoholism, Associational Discrimination, Retaliation, and Magic Words — via Understanding the Americans with Disabilities Act
• “Drawing the Line Between Civil and Religious Rights” — via How Appealing
• The Death of the Class-Action Lawsuit? — via The Nation
• Can a company regulate employee weight and appearance? — via Eric Meyer’s The Employer Handbook Blog
• What employers need to know about transgender discrimination — via EmployerLINC
• Is Your Federal Contracting Business Covered by OFCCP Affirmative Action Rules? — via Tim McConville’s Labor and Employment Law Cocktail
• What’s your boss allowed to ask when you call in sick? — via Ask a Manager

Social Media & Workplace Technology

• Facebook is expanding its workplace social network to hundreds of companies — via The Verge
• Justice Alito Says SCOTUS Is Clueless On New Tech, Which Makes Privacy Cases Even Harder — via Above the Law
• All Boards Need a Technology Expert — via Harvard Business Review
• New Key Terms for DoD’s New Cyber Security Regulations — via Privacy and Data Security Insight
• Did Volkswagen Violate the Computer Fraud and Abuse Act? — via Shear on Social Media Law
• All work and no smartphone play will dull your employees — via Ragan.com

HR & Employee Relations

• When terminating an employee, is a clean break better than a long limbo? — via Robin Shea’s Employment & Labor Insider
• Trusting Human Resources: A Fantasy or a Necessity? — via Dan Schwartz’s Connecticut Employment Law Blog
• The Pope’s visit is a magnificent case for teleworking — via Wonkblog
• Sweden Experiments with Six Hour Working Day — via Inhouse Blog
• Juggling Work and Family During School Holidays — via Fathers, Work, and Family
• Say goodbye to the “Mad Men” office: How workplace flexibility & paid leave can transform the way we work — via Salon
• Your Employee’s Former Employer Just Sued You????? — via The Emplawyerologist
• “At Will” Employment vs. Right to Self-Defense — via Phil Miles’s Lawffice Space

Wage & Hour

• Protecting the Sharing Economy: Creating an FLSA Dependent Contractor Status — via Doug Hass’s The Day Shift (p.s.: check out Doug’s new blog)
• Questions Answered About the Proposed FLSA Overtime Rule Change — via ERC Insights Blog
• Attempted self-help via internet leads to employer liability under the FLSA — via Employment Law Matters
• DOL to Pay $1.5 Million to Employer for Bad Faith Investigation — via Wage & Hour Insights

Labor Relations

• An Impractical and Dangerous Ruling — via New York Times
• Three Reasons Labor Unions Will Prevail — via Huffington Post
• “Union leaders are livid” — via Walter Olson’s Overlawyered
• NLRB Now Requires Companies to Give Most Employee Witness Statements to Unions — via Matt Austin Labor Law
• NLRB Now Publishing Election Tallies Online — via Labor Relations Today
• OUR Walmart fights … OUR Walmart? — via LaborPains

The time for your safety audit is now.

According to data released last week by the Bureau of Labor Statistics, the number of workers killed on the job as a result of slips, trips, and falls rose in 2014 by nearly ten percent.

Here are some the key findings:

• The number of fatal work injuries in private goods-producing industries in 2014 was 9 percent higher than the revised 2013 count but slightly lower in private service-providing industries. Fatal injuries were higher in mining (up 17 percent), agriculture (up 14 percent), manufacturing (up 9 percent), and construction (up 6 percent). Fatal work injuries for government workers were lower (down 12 percent). 
• Falls, slips, and trips increased 10 percent to 793 in 2014 from 724 in 2013. This was driven largely by an increase in falls to a lower level to 647 in 2014 from 595 in 2013. 
• Fatal work injuries involving workers 55 years of age and over rose 9 percent to 1,621 in 2014 up from 1,490 in 2013. The preliminary 2014 count for workers 55 and over is the highest total ever reported. 
• After a sharp decline in 2013, fatal work injuries among self-employed workers increased 10 percent in 2014 from 950 in 2013 to 1,047 in 2014. 
• Women incurred 13 percent more fatal work injuries in 2014 than in 2013. Even with this increase, women accounted for only 8 percent of all fatal occupational injuries in 2014. 
• Fatal work injuries among Hispanic or Latino workers were lower in 2014, while fatal injuries among non-Hispanic white, black or African-American, and Asian workers were all higher. 
• In 2014, 797 decedents were identified as contracted workers, 6 percent higher than the 749 fatally-injured contracted workers reported in 2013. Workers who were contracted at the time of their fatal injury accounted for 17 percent of all fatal work injury cases in 2014. 

So, we know that workplace fatalities are on the rise? What does this mean for your business? It means that now is the time for you to get your workplace-safety house in order. You are (god forbid) one fatality, serious injury, employee complaint, or planned investigation away from an visit from your friendly neighborhood OSHA investigator. 

Do you want to know what your safety programs look like before OSHA shows up at your door? Do you want the comfort of knowing that your OSHA logs and safety training material are in order, and that your safety low-hanging fruit (guarding, lock-out/tag-out, fall protection, PPE, etc.) is handled? 

If so, consider the current time (when OSHA is not in your facility) as borrowed time. Use this borrow time wisely to audit all of your safety practices. It could mean a difference of tens, or even hundreds, of thousands of dollars in fines. Time and money well spent, if you ask me.

The difference between what is "legal" and what is "right"

In McGowan v. Medpace, an Ohio appellate court dismissed an ex-employee’s wrongful discharge lawsuit. The employee—a former executive director—claimed that she was fired in retaliation for reporting concerns about her predecessor’s prescription-writing practices, which she alleged constituted insurance fraud and compromised patient safety. The court, however, concluded that regardless whether the retaliation occurred, it did not permit her to pursue a lawsuit for wrongful discharge. According to the court, under Ohio law, to support a wrongful discharge claim one cannot rely on a public policy unless it imposed an affirmative duty on an employee to report a violation, prohibited an employer from retaliating against an employee who had reported a violation, or protected the public’s health and safety. The court concluded that none of Dr. McGowan’s alleged public policies met those criteria, and, therefore, she lost.

That’s the legal analysis. Some would say that the employer won on a technicality. I prefer to call it high-quality lawyering. Whatever your take, what is clear is that whether the retaliation occurred was irrelevant to the decision. 

Employers, do not read this case as a licence to retaliate. Instead, let it stand for a deeper, more meaningful lesson. Just because the law permits something does not make it right. Strive to be better than the law’s floor, if not because it is the right thing to do, then because this case could have just as easily gone another way with a different court or different panel of this court. Justice is fickle. Do right by your employees and, more often than not, everything else falls into place. Just because the law makes it legal doesn’t mean the law makes it right, right?

What are biggest legal questions facing employers?

Last week, Employment Law 360 ran a four-part series discussing the four biggest issues facing employment lawyers across four different categories: Discrimination, Wage and Hour, Labor, and Class Actions (sub. req.).

It’s hard to disagree with any of the articles’ assessments or conclusions. It got me thinking, though, if those are the biggest issues facing employment lawyers, what are the biggest issues facing employers?

I think these issues fall into two over-arching categories:

1. What is work?
2. Who is an employee?

“What is work” does not just fall under the wage-and-hour umbrella. Yes, it is important under the FLSA to understand the compensable nature of working time, and how technology, like off-the-clock emails and smartphone use, impacts this question. Equally, if not more important, however, is the issue of the location of work, and the flexible work schedules, telecommuting, and work-life-balance implications of this question. If technology has freed us from the shackles of a four-walled office and nine-to-five time clock, does it also mean that technology has stretched the workplace to anywhere and the workday to anytime? And, with this “freedom”, should not employers be more lenient with time off, paid or unpaid.

“Who is an employee” is equally important. I’m not just talking about the FLSA implications of employee vs. independent contractor, or employee vs. intern. I’m also talking about the potential for joint-employer liability under the NLRA, Title VII, OSHA, and other statues. And, don't forget the ongoing debate over whether Title VII protects LGBT workers.

So, readers, what say you? What are the most important workplace legal issues facing you and your businesses? Leave a comment below, or tweet me @jonhyman with the hashtag #BiggestEmployerIssue

Union organizing as a protected class? Worst … idea … EVER

Raise your hand if you think that it needs to be easier for workers to unionize? If I could look through my computer screen, I’d see very few of my readers’ hands raised.

Two hands that would be raised, though, are those of Washington Senator Patty Murray and Virginia Congressman Bobby Scott (both Dems), who, last week, introduced and sponsored the Workplace Action for a Growing Economy (WAGE) Act.

What would the WAGE Act do?

• Triple the back pay to employees fired or retaliated against for engaging in protected concerted activity.
• Provide employees with a private right of action to bring suit to recover monetary damages and attorneys’ fees in federal district court, in addition to injunctive relief.  
• Clarify that joint employers are jointly responsible for violations affecting workers supplied by another employer.
• Establish civil penalties up to $50,000 for employers that commit unfair labor practices, with double penalties for repeat violations.
• Impose individual liability for employer violators on officers and directors. 
• Allow the NLRB to issue a bargaining order upon finding that an employer prevented a free and fair election, provided that a majority of employees signed authorization cards within the previous 12 months.

What else do you need to know about the WAGE Act? It’s supported by the AFL-CIO, the Teamsters, the Communication Workers of America, The Leadership Conference on Civil and Human Rights, The Century Foundation, and other worker-rights groups.

AFL-CIO President Richard Trumka described the legislation: 

The WAGE Act puts corporations who abuse working people on notice that there will be real penalties for lawbreaking. Penalties like triple back pay, strong civil penalties and preliminary reinstatement.

Teamsters General President James P. Hoffa added:

For too long employers have manipulated and abused the system under the NLRA. The WAGE Act offers real reform to our current laws and provides worker protections through significant penalties that will discourage employers from acting illegally. It is long past time to bring our labor laws into the 21st century.

The Act’s co-author, Senator Murray, continued:

Too often, as workers are underpaid, overworked and treated unfairly on the job, some companies are doing everything they can to prevent them from having a voice in the workplace. The WAGE Act would strengthen protections for all workers and it would finally crack down on employers who break the law when workers exercise their basic right to collective action.

This bill has no chance to become law. But that’s not the point. The labor movement is setting up the 2016 election to be a referendum on the American working class. This bill is a symptom of this problem, not the solution. Nevertheless, it illustrates the class divide that could lead to a greater resurgence of organized labor.

WIRTW #382 (the “bloodletting” edition)

This past weekend, my kids had their triannual School of Rock performances. Norah performed in the “Left of the Dial” show, singing and strumming the 80s pre-Nirvana alt groove. Not to be outdone, Donovan made his stage debut playing keyboards in the Rock 101 band (with Big Sis backing him on the drums).

A few observations.

1. I’m not sure where they came from, but Norah’s got a set of pipes and is quickly learning how to use them.
2. Donovan might not have music in his future, but, as you’ll see, the kid’s got stage presence.
3. Having never taken a drum lesson, Norah did herself proud behind the kit for two songs.

With that preface, let’s go to the tape.

Norah bringing down the house, singing Concrete Blonde’s “Bloodletting”

Donovan causing tears of joy with his dance moves and backing vocals

If you’re inclined, you can watch the entire 12-song Left of the Dial set here.

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

Discrimination

• The Kim Davis Story: When Religion Clashes with Job Requirements — via ERC HR Insights Blog
• Court Rulings Reiterate that Employers Should Review and Revise Best Practices for Drug-Free Workplace Programs — via Laconic Law Blog
• Reassignment As A Reasonable Accommodation Under The ADA — via Employment Essentials
• And a happy #$%!&;!*! new year to you, too! — via Robin Shea’s Employment & Labor Insider
• “Drawing the Line Between Civil and Religious Rights” — via How Appealing

Social Media & Workplace Technology

• Facebook is expanding its workplace social network to hundreds of companies — via The Verge
• Hackers Are Coming After Your Private Data — via Technologist

HR & Employee Relations

• How to Reinvent the Employee Handbook — via Evil HR Lady, Suzanne Lucas
• New Push in Congress to Pass a Nationwide Ban the Box Law — via TLNT
• The Caregiving Challenge — via U.S. Department of Labor Blog
• Work-Life Policies Payoff Isn’t Overnight — via Families and Work Institute Blog
• How to Raise Awareness About Mental Health in Your Workplace — via Blogging4Jobs
• Questions That Employers Should Avoid During The Hiring Process — via Minnesota Employer
• Your Employee’s Former Employer Just Sued You????? — via The Emplawyerologist

Wage & Hour

• The pesky FLSA implications of the Papal visit — via Eric Meyer’s Employer Handbook Blog
• USDOL Delays Its “Companionship”, “Live-In Domestic” Enforcement — via Wage and Hour Laws Blog
• DOL: Pay Discussions Protected Under Rules — via Joe’s HR and Benefits Blog
• Eighth Circuit Splits The Baby In Permitting FMLA Claims To Proceed — via The Employment Brief

Labor Relations

• National Labor Relations Board Asserts Jurisdiction over Religious Educational Institutions — via Matt Austin Labor Law
• DOL Pimping Unions — via Labor Relations Institute

Leave policies should apply equally across genders … but must they?

The New York Times reports that CNN has settled an EEOC charge brought by a former correspondent, who claimed that the company’s paid parental leave policy discriminated against biological fathers.

At the time Mr. Levs’s daughter was born, in October 2013, CNN offered 10 weeks of paid leave to biological mothers and the same amount to parents of either gender who adopted children or relied on surrogates. By contrast, the company offered two weeks of paid leave to biological fathers.

Mr. Levs, whose daughter was born five weeks prematurely, already had two young children. He said he felt he needed to spend more time at home sharing in caregiving responsibilities with his wife. He filed his charge when the company refused to grant him more paid time off.

Optically, there is a lot of appeal in a male employee claiming discrimination when a female employee receives more paid leave after the birth of a child. On its face, it certainly looks discriminatory. But, is such a policy really sex discrimination?

There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy.

While employers should offer equal leave allotments to men and women, before we jump the legal gun we need to consider that there might be an explanation other than discrimination that justifies different treatment between the sexes.

Reminder: You cannot decide when a pregnant employee can and cannot work

The EEOC recently announced that it has filed suit against a Texas home healthcare company for terminating a pregnant employee. The EEOC describes the key allegations:

EEOC charges in its suit, that Zanna Clore was told to obtain a doctor’s note after the employer learned of her pregnancy. Shortly thereafter, Clore provided Your Health Team with a release from her physician stating Clore could perform all job duties with the only limitation being that she should not lift or pull more than 25 lbs. Despite the medical release to work, the employer terminated her employment just minutes after she furnished the required note.

EEOC regional attorney Robert A. Canino sums up everything that is (allegedly) wrong with this employer’s action:

As a society, we should have already evolved well beyond the old-school thinking that a pregnant worker must be excluded from the workplace. Fortunately, the highest court in the land, in Young v. UPS, recently emphasized the employer’s responsibility to accommodate pregnant employees and thereby avoid discrimination against working women.

When an employee informs you that she is pregnant, your decision is not whether to fire her, but instead whether she can perform the essential duties of her job during her pregnancy. If she has physical limitations because of her pregnancy, you must accommodate her on the same terms and conditions as others who are similar in their ability or inability to work. In other words, if a pregnant employee cannot perform an essential function of lifting more than 25 pounds, and you have previous accommodated other non-pregnant employees in that job with similar lifting restrictions, then you must offer the same accommodation to the pregnant employee. It is not up to you to decide whether your pregnant employee can, or cannot, continue working.

Is anyone still using unpaid interns?

I’ve cautioning about the use of unpaid interns almost as long as this blog as been a blog (here, here, and here, for example). Last week, the 11th Circuit, in Schumann v. Collier Anesthesia [pdf], became the third federal appellate court to cast aside the DOL’s six-factor internship analysis for a stricter “primary beneficiary” test (joining the 6th Circuit and 2nd Circuit).

In Schumann, the court questioned the employer’s use of unpaid student registered nurse anesthetists participating in a clinic program as part of their master’s degree curriculum. The court agreed with the 2nd Circuit that the DOL’s six-factor internship analysis is antiquated, instead balancing, via the following factors, who received the primary benefit of the relationship—the employer (in which case the intern is an employee who must be paid) or the employee (in which case the internship can be unpaid):

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Notably, the Schumann court noted that the internship analysis is not necessarily all-or-nothing, and that one can be a bona fide intern for part of the engagement, but an employee for others:

That is, we can envision a scenario where a portion of the student’s efforts constitute a bona fide internship that primarily benefits the student, but the employer also takes unfair advantage of the student’s need to complete the internship by making continuation of the internship implicitly or explicitly contingent on the student’s performance of tasks or his working of hours well beyond the bounds of what could fairly be expected to be a part of the internship. For example, in the context of an internship required for an academic degree and professional licensure and certification in a medical field, consider an employer who requires an intern to paint the employer’s house in order for the student to complete an internship of which the student was otherwise the primary beneficiary. Under those circumstances, the student would not constitute an “employee” for work performed within the legitimate confines of the internship but could qualify as an “employee” for all hours expended in painting the house, a task so far beyond the pale of the contemplated internship that it clearly did not serve to further the goals of the internship.

Ultimately, the court took no position on whether these student nurses were (or were not) employees, instead sending the case back to the district court to make the necessary factual determinations under the primary beneficiary test. Assuming this case is not settled, this case will be very interesting to watch on remand, as the relationship in Schumann is much closer to the traditional unpaid internship—training in exchange for school credit as part of an educational curriculum. A judgment for the interns in this case would be pretty darn close to the final coffin nail for unpaid internships.

While we watch this case, employers should continue to assume that non-student interns are paid employees, and should consult with counsel on whether student interns should be paid.

Time off for religious holidays

Today is Rosh Hashanah, the Jewish New Year, which means that many Jewish employees are taking the day off. Is an employer obligated, however, to grant a request for time off when requested for a religious observance?

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee’s duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical or other reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

WIRTW #381 (the “sensational inspirational celebrational” edition)

The Muppets present, 5 People You’ll Meet At Work.

 

Which one are you?

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

Discrimination

• Judge Titus Channels Inner Kenny Rogers in $1 Million EEOC Rebuke — via Employee Screen IQ
• Firing an employee for complaining on Facebook about discrimination = retaliation — via Eric Meyer's The Employer Handbook Blog
• Workplace religious accommodation, cont’d — via Walter Olson's Overlawyered
• Yes, employers may have to accommodate even “crazy” religious beliefs. — via Robin Shea's Employment & Labor Insider
• Be careful what you ask on pre-employment tests to avoid a multimillion dollar EEOC action — via Employer Law Report

Social Media & Workplace Technology

• Employee Shows Genitals to Co-Workers: Litigation Follows — via All in a Day’s Work
• Tool or distraction? Examining pros, cons of tech at work — via Technology for HR
• 7 ways to make internal comments work for you — via Ragan.com
• Future Friday: The world of work and the Internet of Things — via Next Blog

HR & Employee Relations

• Tom Brady Fallout—When Employees Win — via Employment Discrimination Report
• The Challenges Of Identifying Potential Workplace Violence — via NPR
• Eight Years Later: Three Big Changes in Employment Law — via Dan Schwartz's Connecticut Employment Law Blog
• 5 Ways To Make Yourself a Target Via Your Hiring Decisions — via The HR Capitalist, Kris Dunn
• Handbook Apocalypse! — via HR Professionals Magazine

Wage & Hour

• Is Amazon the Scapegoat in the Debate on Employee Leave Entitlements? What's the Lesson Here for Employers? — via Jeff Nowak's FMLA Insights
• Northeast Ohio Businesses Are Adjusting to the Changing Workplace, ERC Survey Finds — via ERC Insights Blog
• Is the Nine to Five Dying? — via Workplace Insights

Labor Relations

• NLRB Provides Newly-Certified Unions with Roadmap for Bringing Unfair Labor Practice Charges — via Matt Austin Labor Law
• DOL Pimping Unions — via Labor Relations Institute 
• Why women may be the new face of labor unions — via CBS News
• Get Ready for Even Quicker ‘Quickie’ Elections—NLRB Abandons Requirement for Signed Authorization Cards — via LE Blog

BMW settles EEOC background-check lawsuit for a cool $1.6 mil

Last month, a South Carolina federal judge denied BMW’s attempt to dismiss an EEOC lawsuit which alleged that the company’s criminal background checks for job applicants had a discriminatory disparate impact on African American (opinion here).

In the wake of that decision and looming trial date at the end of this month, BWM and the EEOC have agreed to settle their differences. In exchange for the EEOC’s dismissal of its lawsuit, BMW will pay $1.6 million, and offer employment to 56 of the claimants and up to an additional 90 other African-American applicants identified by the EEOC.

Interesting, Judy Greenwald, at Business Insurance, quotes both BMW and the EEOC, each of which holds a very different opinion on what this settlement has to say about an employer’s use of criminal background checks:

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.”

At the end of the day, the resolution of this case has very little to do with the legality of criminal background checks (and whether they are discriminatory) and everything about two litigants buying off off the risk of a trial on the issue. For now, the safest course of action for employers is to follow the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (at least until the federal courts tells us otherwise).

When religious liberty clashes with job requirements

By now, you’ve likely heard about the Muslim flight attendant who filed a charge of discrimination with the EEOC, claiming that her employer refused to accommodate her religion by requiring her serve alcohol on flights. There is much to say about this issue, but I do not think I can say it any better than Eugene Volokh did in the Washington Post. I highly recommend his thorough and thoughtful essay.

The practical question, however, is what to do when an employee requests such an accommodation. Consider:

• A Catholic pharmacist who refuses to sell birth control.
• A Muslim truck driver who refuses to deliver any pork.
• A Christian Scientist nurse who refuses a flu vaccine.
• An Orthodox Jew who refuses to sell any non-Kosher items.
• An IRS employee with religious objections to working on certain tax-exemption applications.

How you feel about each of these particular cases will depend, in large part, on your view of Religion, or certain religions. Yet, Title VII does not make any such distinctions. Instead, Title VII requires employers to exempt religious employees from generally applicable work rules as a reasonable accommodation, so long as the accommodation won’t impose on the employer an “undue hardship” (something more than a modest cost or burden). If the job can get done without much of a burden, then Title VII requires the employer to provide the accommodation.

Volokh makes six observation about this reasonable-accommodation rule, which are worth repeating:

1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task. Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

In other words, Title VII’s religious accommodation provision is the law of the land, and it does not permit value judgments based on the religion of the person making the request, no matter how different a religion may seem from ours. If the request is based on a sincerely held religious belief, is reasonable, and does not impose an undue hardship, an employer must provide it. Value judgments will result in litigation, in which the employer will likely be on the wrong side of the law. Treat each religion equally, consider each accommodation request on its merits, and err on the side of inclusion.

A White House forum for your whiny employees? Yup, this is a real thing, and you should pay attention.

Does your workplace have that employee who complains about everything? Is there that one person, who, no matter what you do, it’s never good enough? Lucky for you, the White House now has a forum for this pain-in-your-butt.

The White House has announced it’s “Summit on Worker Voice”. According to the White House:

On October 7, 2015, the White House and the Department of Labor will bring together workers, labor leaders, advocates, forward-leaning employers, Members of Congress, state and local officials and others to highlight the relationship between worker voice and a thriving middle class.

The White House Summit on Worker Voice will provide a historic opportunity to bring together a diverse group of leaders—including workers, employers, unions, organizers and other advocates and experts—to explore ways to ensure that middle class Americans are sharing in the benefits of the broad-based economic growth that they are helping to create. We want both seasoned and emerging leaders from across the country, who are taking action in their communities to lift up workers’ voices—to be active participants in this conversation.

The White House is looking for your employees to nominate workplace “voice leaders”, those who:

• Join with coworkers to discuss common workplace issues in a constructive and productive way.
• Support workers in seeking workplace policies that better respond to worker needs and concerns.
• Seek feedback—for example, through surveys—from employees to learn what really matters to them.
• Open a dialogue among workers, managers, and supervisors about what works best in your workplace.
• Create dialogue with coworkers and employer leadership about ways to expand voice in the workplace.
• Reach out to workers who have never had a voice in the workplace to let them know that they are not alone and broaden the conversation on the future of the workplace.

In other words, the White House is looking for employees to join together to discuss wages, hours, and other terms and condition of employment, a right that the National Labor Relations Act guarantees to your employees.

The Obama Administration, through the NLRB, has made it a whole lot easier for labor unions to form. The NLRB has implements it’s expedited, ambush election rules, and has held franchisors, staffing agencies, and contractors responsible as joint-employers for the bargaining responsibilities of their independent subsidiary entities. Now, the White House has gone a step further by opening a forum for employees to understand their rights to complain and grieve. This administration is bending over backwards to bring up the working and middle classes. And, if you are not implementing progressive wages and policies for your workers, the White House is sending a strong message that it’s more than okay for them to complain, or, worse, form a union to collectively bargain for those rights.

I’ve said before that there is a war brewing between the working classes and corporate America. One battle line is the minimum wage. Another is the labor movement, and the White House has clearly chosen it’s side.

WIRTW #380 (the “left of the dial” edition)

If you find yourself on the west side of Cleveland on the afternoon of September 12 or 13, stop by The Brothers Lounge to check out my kids’ latest rock ‘n’ roll adventure.

Norah will be performing in School of Rock’s “Left of the Dial” show, featuring the pre-Nirvana alt sounds of The Replacements, R.E.M., Dinosaur Jr., Echo and the Bunnymen, and others. To whet your musical appetite, here’s a 15-second clip of Norah crushing the lead vocals on Concrete Blonde’s “Bloodletting”.

A clip of Norah doing her thing, singing Concrete Blondes' "Bloodletting" at tonight's @schoolofrockcle Parking Lot Show. She gave herself a C+ tonight. I guess she's a tough critic. @schoolofrockusa

A video posted by Jon Hyman (@jonhyman) on Aug 17, 2015 at 4:24pm PDT

Also, stick around for my son Donovan’s musical debut, tickling the keys in the Rock 101 band with songs by The Who, Foo Fighters, and Linkin Park. If you stop, say hi, and mention the blog, I might even buy you a beer.

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

Discrimination

• Five Things An Employer Should Do After Receiving a Charge of Discrimination — via Minnesota Employer
• Under the ADA, can you fire an alcoholic who doesn’t request treatment? — via Eric Meyer’s The Employer Handbook Blog
• Ability to get along with others is an “essential function” under the ADA — via Mike Haberman’s Omega HR Solutions
• Commitment to diversity doesn’t prove bias — via Business Management Daily

Social Media & Workplace Technology

• Why Ballot Selfies Are A Terrible Idea For Workers — via Donna Ballman’s Screw You Guys, I’m Going Home
• Man Sends Naked Selfies to Prospective Employer — via Time
• Judge Expresses Frustration With Overbroad Discovery Requests for Social Media Evidence–Farley v. Callais — via Technology & Marketing Law Blog
• Labor Law Developments That Will Shake Technology, Media and Telecommunications Employers — via Technology Company Counselor
• The Ashley Madison Breach: Cybersecurity Nightmare, or Wake Up Call For Employers? — via TLNT
• Cyber boogeyman—internal or external threat? — via Technology for HR

HR & Employee Relations

• The Art of the Apology: Saying “Sorry” in the Workplace — via Dan Schwartz’s Connecticut Employment Law Blog
• The on-air shootings at WDBJ-TV: When bad things happen to good employees — via Robin Shea’s Employment & Labor Insider
• Should Employment Lawyers Advise Clients on Workplace Violence Issues? — via California Employment Law
• Four-Day Workweeks: A Fulcrum for Work/Life Balance — via Blogging4Jobs
• Four-day work weeks are growing in popularity and you’ll absolutely love them — via BGR
• How Do We Make Unlimited Time Off Work, Work? — via 1 Million for Work Flexibility
• One Size Fits All? The Case for Unified Employment Policies for Multi-State Employers — via Employment Matters Blog

Wage & Hour

• What the Browning-Ferris Decision May Forecast for Wage and Hour Law — via The Wage and Hour Litigation Blog
• Is the Contract Worker Golden Age Coming to an End? — via In House
• Employee or Independent Contractor? 3d Cir. FLSA Edition — via Phil Miles’s Lawffice Space
• Fight for $15: the strategist going to war to make McDonald’s pay — via The Guardian
• OSHA Means Business in Targeting the Health Care and Nursing Care Industries — via OSHA Law Update

Labor Relations

• If Employees, Uber Drivers Could Organize into a Union — via Matt Austin Labor Law
• NLRB: we’re coming after franchisors and subcontractors — via Overlawyered
• New NLRB Joint Employers Test – Why It Matters For OSHA — via OSHA Law Update
• What Did the NLRB Say in its Ruling on Joint Employment–and Why? — via The Emplawyerologist
• Five Practical Issues Browning-Ferris Creates for Employers — via Labor Relations Today
• NLRB’s “Joint Employer” Case Matters to Non-Union Employers, Too — via What's New in Employment Law?