Equal opportunity harassment is not unlawful sexual harassment

For harassment to qualify as sexual harassment it must be because of sex. That means that the complained-of misconduct is of a sexual nature, or it singles out women differently than men. Non-sex-based conduct that targets women and men the same, no matter how harsh, is not sexual harassment. Case in point? Miceli v. Lakeland Automotive Corp. (N.J. App. Div. 10/19/11) [pdf].

During her tenure at Lakeland Automotive, Diana Miceli was its only female salesperson. Generally, she alleged that her manager abused, belittled, and harassed her. She admitted, however, that the manager treated the other salespeople (all male) the same way. Because the manager was an equal-opportunity abuser, the court upheld summary judgment:

The sales manager’s abrasiveness was not limited to Miceli. In Miceli’s deposition testimony she stated that “[e]veryone complained about [the sales manager].” Miceli admitted that the sales manager treated another male co-worker “extremely abusive[ly]” and “very condescending[ly].” …

[T]here is no evidence to suggest that the … conduct, although rude and obnoxious, was motivated by gender. “Personality conflicts, albeit severe, do not equate to” hostile work environment claims simply because the conflict is between a male and female employee.

There is no law against being an ass, just against being an ass based on some protected characteristic.

Are you checking in on your “sick” employees? Maybe you should be (or not)

According to a recent survey by careerbuilder.com, 29% of employees admit to playing hooky from work, taking “sick” days when they were really running errands or having fun with friends or family.

Despite this number, only 28% of businesses report that they  check on “ill” employees. Of that 28%:

• 69% require a doctor’s note
• 52% call the employee
• 19% had another employee call the employee
• 16% drove by the employee’s home

Let me suggest a radical alternative to going Inspector Clouseau on your employees. Get rid of sick days (and vacation days, and any other days off) and replace them with paid time off.

PTO is a flexible arrangement that provides the employee a set number of days off per year to be used for any reason (sick time, personal days, vacations, or anything else). Employees like PTO because of its flexibility. Employers like PTO because there is no time spent verifying the legitimacy of sick days and other time off. PTO, however, is not without its downside. For example, it encourages sick employees to come to work because they do not want to burn a paid day off they can use for a vacation later. Employers also lose control over how, why, and even when employees are off.

Depending on your employees’ work ethics and absentee records, and your management’s level of comfort with a more flexible leave policy, you might want to consider whether shifting to PTO makes sense for your business.

Substances abusers continue to confound employers

The EEOC announced that it has filed a lawsuit on behalf of a job applicant who lost his position after a pre-employment drug screen revealed methadone in his system:

According to the EEOC’s complaint, Craig Burns is a recovering drug addict who has been enrolled in a methadone treatment program since 2004. In January 2010, United Insurance offered Burns a position as an insurance agent in its Raleigh office, conditioned upon Burns’ passing a drug test. After Burns’ drug test showed the presence of methadone in his system, Burns submitted a letter to United Insurance from his treatment provider explaining that he was participating in supervised methadone treatment program and taking legally prescribed medication as part of the treatment. Upon receiving this information, United Insurance notified Burns that he was not eligible for hire and withdrew its offer of employment.

When dealing with addicts, the ADA requires employer to balance a fine line between not wanting substance abusers in the workplace and the need to accommodate addiction as a disability. This balance comes from the ADA’s lack of protection for current drug and alcohol abuse, but its ongoing protection of addiction as a disability. From the EEOC:

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA does not protect an individual who currently engages in the illegal use of drugs, but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability,” and who is “qualified.”

Even without these legal complications, dealing with employees who have a substance problem is never easy. Because of the layer of complexity added by the ADA, you should not tread in these waters without guidance from employment counsel.

The NLRB does not troll for cases, but…

During my NPR appearance from a couple of weeks ago, NLRB General Counsel Lafe Solomon made an interesting comment about his agency: “We don’t solicit business. We only deal with charges that are filed in our regional offices around the country.”

Here’s the whole clip [1:13], which includes my response:

I take issue with Lafe’s statement that the agency doesn’t “solicit business.” Yes, the agency doesn’t do things like set up tables in public spaces looking for individuals to file charges (it leaves that tactic to the EEOC). There are, however, lots of types of solicitation. Under Lafe’s reign as its general counsel, the NLRB has aggressively issued press releases announcing myriad cases dealing with social media. He published an entire report on the issue. He’s been quoted in the New York Times and has been doing the media circuit (like our NPR appearance). All of that publicity sends a very strong message to employees that the NLRB is their recourse if they are fired for something they write on a social media website. If that isn’t “soliciting” business, I don’t know what is.

New movie asks this question about workplace social media: “Have I Shared Too Much?”

If you are asking questions in job interviews about candidates social media activities, I bet it’s not like what happened in a short movie that debuted recently online, Have I Shared Too Much?

In the 12-minute movie, an interviewee trying to land his dream job is forced to defend why no one has recommended him on LinkedIn, why he only has 6 Twitter followers, why follows Kim and Courtney but not Chloe, and why he’s a fan of Justin Bieber. He also suffers through the uncomfortable squabbling among the three interviewers debating their own social media issues with each other. For anyone interested in social media in the workplace, this movie is a must match.

All Twitter talked to the writer and director, Sameer Acharya, who said the following about his project:

I started writing the film last summer after reading several articles, and watching news reports about the paranoia of social media. Prospective job applicants were becoming increasingly weary that their online posts could potentially cost them career opportunities….

Yes, these are all amazing tools that have significant personal and community benefits. However, there is also a downside. In addition to maintaining a life balance, hopefully audiences will see that social networking has blurred the lines separating our personal and private lives, and with that comes significant consequences.

Pop some corn, turn down the lights, and enjoy.

WIRTW #198 (the “James Madison” edition)

My post about a proposed Employer’s Bill of Rights has gotten a lot of people talking. It is the most commented post in the history of the blog. It is also well on its way to becoming the most read post, an honor which (for now) belongs to the post from earlier this year on Charlie Sheen’s workplace rants as protected, concerted activity. I’ve also had offers to publish my thoughts as an 11x17 workplace poster (an idea I might run with) and to run for president of South Africa (Nelson Mandela’s legacy is safe).

Other bloggers have also picked up the torch on this issue:

• Employee vs Employer Bill of Rights – from Suzanne Lucas, the Evil HR Lady, writing at BNET
• An Employer Bill of Rights? Well, Not Exactly, But… – from Dan Schwartz’s Connecticut Employment Law Blog
• A Great Read for the End of the Week – from Mike Haberman’s HR Observations Blog
• The Employment Law Blog Carnival is here! – from The full 360 … People, Organizations & Technology

WIRTW is taking much needed Friday off next week, but I will have original posts the rest of the week.

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

Discrimination

• “Anita Hill Defends Her Legacy: Two decades after her seismic testimony, she doesn't shy away from talking about it” – from Howard Bashman’s How Appealing
• Sexual Harassment 20 Years Later: Anniversary of Clarence Thomas Hearings Marks Time for Reflection – from Employment Lawyer Blog
• Adverse Impact Tool From Thomas Econometrics – from Stephanie Thomas’s The Proactive Employer Blog
• Federal Court in CT Rules Pregnancy Discrimination Act Protects More Than the Pregnant – from Wisconsin Employment & Labor Law Blog
• Age Before Beauty … The Pervasive Problem of Age Discrimination – from Texas Employer Handbook
• “Actress sues Amazon over her age on its IMDb site” – from Walter Olson’s Overlawyered
• Knowing When to Hold ‘Em: Considerations for Getting the Preservation Obligation Right in Employment Discrimination Claims – from Michigan Employment Law Advisor
• More Discrimination is Needed – from Compensation Cafe

Social Media & Workplace Technology

• Why Employers Should Include Limiting Language in Social Media Policies – from Minnesota Employer
• Politics and Social Media: Is Your Company Prepared for 2012? – from Social Media Today
• Double Fisting and Crazy Bitch Bingo – from Phil Miles’s Lawffice Space

HR & Employee Relations

• 5 reasons for employers to “hold their fire” on dismissal of employment suits – from Robin Shea’s Employment and Labor Insider
• Negligent Supervision & Hiring – from Rob Radcliff’s Smooth Transitions
• Gallup Data on Obese Workers: Time to Dust Off “Lighter” Workplace Tips – from SmartHR
• My Employer Defamed Me! – from Donna Ballman’s Screw You Guys, I’m Going Home
• Workplace Bullying: Make It Stop – from i-Sight Blog

Wage & Hour

• An honest belief is all it takes to fire a suspected FMLA abuser – from Eric Meyer’s The Employer Handbook Blog
• 7th Circuit Reverses Summary Judgment in FMLA Retaliation Case – from ZR Workplace Law
• Retaliation Claims Under the Fair Labor Standards Act: Applicants Need not Apply – from Employment Essentials
• Violations Of Overtime Laws On The Rise – from Overtime Lawyer Blog

Using arrest and conviction records for hiring. What Does the EEOC Say?

The Peace Corps asked the EEOC for an opinion on the legality of its use of conviction and arrest records to screen potential volunteers. In response, the EEOC published an informal opinion letter, which offers guidance for employers who are considering using conviction or arrest as part of their screening processes.

Conviction Records

• According to the EEOC, conviction records have the potential to have a disparate impact on African Americans and Hispanics. Therefore, employers should only use them when “job related and consistent with business necessity.”
• To ensure that applicants’ criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that employers limit criminal history inquiries to convictions that are related to the specific positions in question, and that have taken place in the past seven years.

Arrest Records

• Arrest records are different than conviction records because of their inherent unreliability. For example, they are not persuasive evidence that the person engaged in the alleged conduct, and may also be poorly reported or updated.
• If employers decided that arrest records serve a useful purpose in screening applicants, their use should be limited to offenses related to the specific position.
• To account for the potential unreliability of arrest records, employers should also provide applicants a reasonable opportunity to dispute their validity.

Hustling for a lawsuit

Larry Flynt is no stranger to the courtroom. Now, it appears his brother, Jimmy Flynt, isn’t either. Jimmy has filed suit in federal court in Cincinnati, claiming that the family business wrongfully terminated his employment. Flynt v. Flynt Management Group, LLC [pdf] is the latest salvo fired by Jimmy against his brother and former business partner. Earlier this year he lost a different lawsuit that sought to take control of the business. According to the Cincinnati Enquirer, this fight started “several years ago when the brothers had a falling out after Larry fired Jimmy’s two sons.”

Lawsuits come from all angles. As this story illustrates, and as is often the case, the stronger the relationship, the nastier the fall-out.

[Hat tip: MattAustinLegal]

Winning the battle but losing the war in FMLA cases

The FMLA allows for two different theories of recovery—interference and retaliation. Interference is when an employer denies an FMLA benefit to which an employee is entitled and of which the employee provided notice. Retaliation is when an employee’s use of a protected FMLA right causes an employer’s adverse action. These claims are mutually exclusive, and a terminated employee can succeed on one and fail on the other.

Consider, for example, Platt v. Lamrite West, Inc. (N.D. Ohio 8/17/11). Platt involved an employee terminated for violating an employer’s call-off policy after making a request for FMLA leave. The court denied the employer’s motion for summary judgment on the employee’s interference claim, but granted summary judgment and dismissed the employee’s retaliation claim.

On the interference claim, the court concluded that there was a genuine issue of fact as to whether the employer’s FMLA paperwork modified the call-in procedure. At the same time, however, the court concluded that there was no issue of fact on the employee’s retaliation claim:

He … would have been terminated for violating this policy even if he had not requested FMLA leave…. Between 2007 and 2010, 56 warehouse employees were terminated by Defendant for failing to comply with Defendant’s attendance policies. Like Plaintiff, these former employees were terminated for failing to report to work or notify Defendant for three consecutive work days. Unlike Plaintiff, these former employees did not seek FMLA leave, further supporting Defendant’s proffered non-retaliatory grounds for termination.

As the court pointed out, holding the employee to the call-off policy “may create an interference claim, [but] it does not give rise to a retaliation claim.” Thus, you can terminate an employee for exercising an FMLA right without retaliating against him or her, so long as you do not treat the employee any differently than any other employee. However, that termination still might give rise to a claim under FMLA for interfering with the exercise of FMLA rights. In other words, you might win the retaliation battle against a terminated employee, but ultimately lose the FMLA war.

Some social media stats to get you thinking this week

This time next week, I’ll be in Denver to speak about workplace social media issues at the annual Meritas Litigation and Labor & Employment Conference. In preparing for my session, I came across the following statistics (taken from a recent survey conducted by DLA Piper):

Of employees who use social media sites for personal use:

• 39% have befriended a colleague or business contact on Facebook or LinkedIn
• 14% have posted a status update or tweeted about their work
• 22% have posted a status update or tweeted about a work colleague
• 28% have posted photos of colleagues or business activities
• 1% have posted confidential business information

Of employers:

• 21% have taken disciplinary action because of information an employee has posted about a co-worker
• 25% have taken disciplinary action because of information an employee has posted about their activities at work
• 31% have taken disciplinary action because of information an employee has posted about the organization
• 30% have taken disciplinary action because of the level of an employee’s social media use at work

Despite these results, only 14% of employers reported having a social media policy that regulated the use of social media outside the workplace. In other words, there is still a huge divide between employees’ use of social media and employers’ regulation of that use.

Employers, you may think it is common sense that your employees not Tweet or Facebook about the goings-on in your workplace. These numbers say otherwise. Doesn’t it make sense to have a formal, written policy to guide the discussion, set expectations, and bridge this gap?

WIRTW #197 (the “NSFW” edition)

The following video has been making the rounds this week. It’s called Popsicle, and cleverly asked this question at the end: “Is this sexual harassment?” The video is probably NSFW, so watch with caution.

This ad is not the first to use this kind of imagery. Remember this Burger King ad from a couple of years ago?

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

Discrimination

• EEOC’s Reduced Budget Likely To Impact Employees and Employers – from The Proactive Employer Blog
• Employers, don't try to dismiss that lawsuit before its time – from Robin Shea’s Employment and Labor Insider
• The EEOC: Now Marketing Lawsuits against a Company Near You – from Kris Dunn, The HR Capitalist
• Can An Employer Ask a Job Applicant …The Nuts & Bolts of Legal Preemployment Inquiries – from Michigan Employment Law Advisor
• Maternity leave, the Pregnancy Discrimination Act and summary judgment – from Work Matters
• Giving Aid to the Enemy: The Healthy Workplace Act Explained – from Michael Fox’s Jottings By An Employer’s Lawyer
• 4th Circuit Holds Religious Organizations Exempt from Title VII In “Modest Garb” Case – from Laconic Law Blog
• Court Case Gives Employers Clarity on Disciplining Disabled Workers for Misconduct – from Workplace Insights

Social Media & Workplace Technology

• Whoops. Google Engineer Accidentally Makes His “Plus Sucks” Rant Public – from Kashmir Hill’s The Not-So Private Parts
• Legal Issues Surrounding Social Media Background Checks – from Labor Employment Law Blog
• NLRB Social Media Memo Part IV - Overly Broad Policies – from Phil Miles’s Lawffice Space
• Labor negotiations now a social process – from The Human Race Horses
• Rhyme or Reason? Trying to Make Sense of the NLRB’s Social Media Cases – from Labor Relations Update

HR & Employee Relations

• We Recommend Against the Asparagus – from Lawyerist
• What Are My Favorite “Work” Songs On My iPod? Steve Jobs Knows – from Dan Schwartz’s Connecticut Employment Law Blog
• Millennials Turn Corporate Culture on its Head – from i-Sight Investigation Software Blog
• The Importance of a Release – from Rob Radcliff’s Smooth Transitions
• What To Do When An Employee Doesn't Celebrate Halloween – from Workplace Diva
• Is Employment a Civil Right? – from Compensation Cafe
• Abortion at Work – from The Cynical Girl
• Should Companies Use Credit Checks to Screen Job Applicants? – from Time

Wage & Hour

• Doggone-it. Must employers give leave to employees with hurt pets? – from Eric Meyer’s The Employer Handbook Blog
• The Dark, Ugly Side of Using Unpaid Interns (under the FLSA) – from SmartHR
• President And CEO Personally Liable For Wage And Hour Violations In Torres v. Gristede’s Operating Corp. – from Overtime Lawyer Blog
• Judge Rules Ohio-based Cascom Employees Misclassified as Independent Contractors – from Fair Labor Standards Act Law
• Court: Cable Installers Employees, Not Independent Contractors – from Wage & Hour Insights

Labor Relations

• A Public Menage A Trois - Joining The NLRB’s Public Posting Party – from Social Media Employment Law Blog
• Ladies’ Local 321 – from Main Street Gazette
• Union Free You Tube Video: Organizer Ties OWS to SEIU – from Labor Relations Institute

Social media and privacy cannot coexist

During my appearance on The Sound of Ideas to discuss social media in the workplace, NLRB General Counsel Lafe Solomon made an interesting point about the accessibility of employees’ social media by employers. The question arose as to whether employees can short-circuit workplace problems by locking employers out via available privacy settings on sites such as Facebook. Lafe observed that in every social media case brought to the NLRB, the employer learned of the offending social media posts not by its own online discovery, but by a co-worker who narced. Privacy settings on Facebook can keep non-friends from accessing information, but they cannot prevent someone to whom you have granted access from turning that information over.

Here’s the snippet of my back and forth with Lafe Solomon discussing this issue during yesterday’s show:

Employees need to disavow themselves of the notion that there is such a thing as “privacy” in social media. After all, the word “social” is half of the equation. These are not conversations we are having with ourselves. People keep diaries for those matters they really want to keep private; they should not be broadcasting those private thoughts for the world to see. Once you put information out there, you have to assume that your employer will discover it.

Using social media is as much an exercise in reputational management as it is in the sharing of information. Until employees fully understand and embrace the implications of the sociability of these tools, the NLRB will remain busy deciding the merits of terminations that result from social media’s irresponsible use by those seeking the NLRB’s protection.

They always said I had a face for radio

This morning’s appearance on WCPN—discussing social media and the workplace—could not have gone better. It was an engaging hour, capped off with a rare opportunity to challenge NLRB General Counsel Lafe Solomon on some of his agency’s positions on social media. All told, I thought Mr. Solomon came across (more or less) reasonably, even if I think the positions of his agency and him on the issue of social media as protected concerted activity are (more or less) unreasonable.

For those who missed my appearance, or cannot wait to relive the hour, here are the links:

• www.ideastream.org/soi/entry/42863: to stream from WCPN’s website
• itunes.apple.com/us/podcast/social-media-and-the-workplace/id210936081?i=100923395: to download as a podcast for your iDevice
• www.OhioChannel.org/MediaLibrary/Media.aspx?fileId=132970: for the video stream

Or, you can simply watch right here:

I’ll be on NPR tomorrow morning talking about social media

Tomorrow morning, from 9 – 10 a.m., I’ll be a guest on WCPN’s The Sound of Ideas (the “best radio show” in Ohio, according to The Cleveland Press Club). I’ll be discussing workplace social media and labor/employment law. One of the other guests will be Lafe Solomon, General Counsel of the National Labor Relations Board, so it should be an interesting and spirited conversation.

You can listen/watch live at www.ideastream.org/soi. Following the live show, a recording will be available at iTunes and from The Ohio Channel.

The phone numbers, should you want to call with a question or comment during the show, are 216-578-0903 or 866-578-0903.

The Employer Bill of Rights

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The Employer Bill of Rights is now available as a book. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations.

You can purchase your copy in a variety of formats:

• Amazon – paperback
• Amazon – Kindle
• Barnes & Noble – paperback
• eBook

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According to Liz Ryan, writing at Businessweek.com. “Actual employee rights in the U.S. are fairly limited.” She posits that because “it’s legal to make hiring and termination decisions for random (nondiscriminatory) reasons” (such as an employee’s favorite sports team), employees need a “Bill of Rights” to protect themselves.

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees:

• Title VII: race, color, religion, sex, and national origin
• PDA: pregnancy
• ADEA: age
• ADA and ADAAA: disability
• GINA: genetic information
• USERRA: returning veterans
• FMLA: family leave
• FLSA: minimum wage, overtime, and child labor
• ERISA: benefits
• COBRA: continuing health coverage
• OSHA: safety
• NLRA: labor
• FCRA: background checks
• WARN: plant closings

The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer Bill of Rights:

1. The Right to Hire on Qualifications: We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire.
2. The Right to Fire on Performance: We also want the right to fire without the fear of an expensive lawsuit when you fail to perform. Every performance review is not an attempt to push you out the door. Believe it or not, every employee we hire represents an investment by us. We want that investment to bear a substantial return. Criticism is meant be a constructive attempt to help you improve, not a destructive set-up for you to fail.
3. The Right to Control Operations: We know how many people we need to employ, how many shifts we need to run, and how many facilities we need to operate. Most importantly, we know what can afford to remain profitable. If we have to shutter or relocate a plant, lay people off, or furlough hours, it’s not because we are discriminating against you; it’s because it’s necessary for us to remain open and able to employ anyone at all.
4. The Right for You to Follow Our Work Rules: We do not distribute handbooks and other policies because we like destroying trees. We do so because we think every relationship needs to be guided by a set of expectations under which each side is supposed to operate. All we ask is that you live up to your end of the bargain and accept the consequences if you don’t.
5. The Right to Be Told When There Is a Problem: We cannot fix workplace problems if the first we hear about them is when a lawsuit is served. Help us help you by letting us know if you think you’re being discriminated against, retaliated against, paid incorrectly, or otherwise being treated unfairly. If you’re right, we’ll fix it. Right or wrong, we won’t hold it against you.
6. The Right to Receive an Honest Day’s Work: When you are at work, we ask that you reasonably dedicate yourself to the tasks at hand. It’s only fair; after all, we are paying you for your services.
7. The Right to Have Our Say Before You Form a Union: We recognize your right as employees to form a union if that’s the collective choice of your majority. Just hear us out and let us have our say on why it’s not all it’s cracked up to be and may not be in your best interest.
8. The Right to Reasonable Notice: We understand that certain laws (the ADA and the FMLA, for example) provide employees rights to certain accommodations, which we follow. In return, we merely ask that when possible, you not wait until the last minute to request an accommodation or a leave of absence. It wreaks havoc with our scheduling and operations.
9. The Right to Be Treated With Respect: Businesses need respect too. We expect that you will demonstrate that respect to us and your fellow employees by showing up on time, not passing off to others that which you can (and should) do yourself, not waiting until the last minute to schedule your vacation, and generally treating others as you would want to be treated.
10. The Right to Confidentiality: We expect you will not share internal workplace issues with the outside world, whether they are our trade secrets or other proprietary information, or the day-to-day goings-on inside our company.

Stereotypes

On last Sunday’s episode of HBO’s Boardwalk Empire, Chalky White, a jailed African-American bootlegger, comforted his wife with the following information about his attorney: “He a Hebrew gentleman.” Lest you think that such observations were left in the 1920s, I once had a client I was defending in a race harassment case refer to me as his “Jew lawyer.”

I relay these tales (both real and fictional) because of a story on Businessweek.com about a national origin discrimination case recently filed by the EEOC against a Colorado hotel. The lawsuit claims that hotel ownership directed management “to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder.” The lawsuit further claims that management told one of the fired employees that ownership did not want to employee American or Caucasian workers “because it was their impression that such workers are lazy.”

There is no hiding that stereotypes—both positive and negative— exist. To some degree we all harbor them (and anyone who tells you differently is full of it). The better job you do of insulating your personnel decisions from these stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

WIRTW #196 (the “atonement” edition)

As I’ve mentioned in this space before, my family is of mixed religion. I’m Jewish and my wife is Catholic. I offer this information because tonight at sundown begins Yom Kippur, the Jewish day of atonement. Unlike Catholics, who confess their sins every week, we Jews ask for God’s forgiveness in a lump sum, once per year on Yom Kippur.

While this comparison is an over-simplification, it nevertheless serves as a jumping-off point to offer my apologies for any posts I’ve written over the past year that might have offended. I do not offer this apology for my viewpoints and opinions—for which I would never apologize or shy away from. Instead, I apologize if language and word choice caught some of my readers off-guard. Employment law can be dirty and offensive. For me, it’s part of what makes it interesting. It is not, however, everyone’s cup of tea.

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

Discrimination

• Employers, don’t be overzealous with your wellness. Beware of the ADA and everything else – from Robin Shea’s Employment and Labor Insider
• Criminal Background Checks and Avoiding Discriminatory Hiring Practices – from i-Sight Investigation Software Blog
• What Does “Similarly Situated” Really Mean? – from Stephanie Thomas’s The Proactive Employer Blog
• Employee drug testing and bashful bladders; it’s a wicked pissah! – from Eric Meyer’s The Employer Handbook Blog
• Attorneys Dancing Around Impact of Gender Identity Discrimination Law – from Dan Schwartz’s Connecticut Employment Law Blog
• Disparate Impact and the Non-Traditional Plaintiff – from Michael Fox’s Jottings By An Employer’s Lawyer
• Supreme Court Weighs Rights Of Parochial-School Teachers – from NPR
• EEOC vs. the ministerial exception – from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• What Prospective Employers Hope To See In Your Facebook Account: Creativity, Well-Roundedness, & “Chastity” – from Kashmir Hill’s The Not-So Private Parts
• A Canadian Perspective on Social Media and Concerted Activity – from Fitzpatrick on Employment Law
• Attorneys’ Duties Regarding Employee Emails – from Phil Miles’s Lawffice Space
• Privacy and company email use—what can employees expect? – from Employment Law Bits
• Employee Privacy 3—Social Media – from Heather Bussing at HR Examiner
• You Are Your Company’s Biggest Security Risk – from Above the Law
• Employer did not violate employee’s privacy by accessing personal laptop – from Internet Cases

HR & Employee Relations

• On WWE and Organized Labor – from Grantland
• Reasons to Terminate: More Is Not Merrier – from Molly DiBianca’s Delaware Employment Law Blog
• The DNA of HR Decisions: Why Documentation is Important – from Michael Haberman’s Omega HR Solutions
• Scratching My Head – from KnowHR Blog
• The “exit parade” as a worker termination protocol – from David Yamada’s Minding the Workplace
• Keep Your Employees off the Playground: Preventing and Dealing with Workplace Bullying – from Workplace Insights
• Do You Regularly “Fit Test” Your Employees? – from Ann Bares’s Compensation Force

Wage & Hour

• Ohio Minimum Wage Increase for 1/1/12 – from THRD’s Blog
• DOL/IRS Collaboration Memo Makes For Interesting Reading – from Wage and Hour Laws Blog
• In “Salary Misclassification” Case, Unpaid OT Calculated at Time and a Half Rate, Not FWW – from Overtime Law Blog
• Do Employers Have to Pay for Travel Time? – from Wage & Hour Insights

Mourning Steve Jobs

I never knew Steve Jobs, but he's always been a part of my life—from the Apple IIe on which I learned to program BASIC three decades ago, to the iPad on which I'm typing this post, and all the life-altering products I've owned in between. And, while my kids don't know it, he's been an important part of their lives too, through the wonderful characters he made possible with Pixar.

I have little to add to what others have already eloquently said. The world has lost a great visionary—our generation's Edison—whose impact will be felt for years to come, yet whose import will not fully be known for centuries. Instead of imparting some great words of wisdom, I'll let Steve speak for himself, via his 2005 Stanford commencement address, given shortly after his cancer diagnosis.



Rest in peace. Heaven will be a cooler place with you there.

BREAKING: NLRB postpones posting of notice of employee rights

Don’t rush to post the NLRB’s latest missive advising union and non-union employees of their rights under federal labor laws.

From the NLRB:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

I wonder if the outcry from business groups, coupled with a pending lawsuit to block the workplace posting, has anything to do with the NLRB’s delay?

Betting on a lawsuit

There have been a lot of bad bets made over time. For example, two years ago I bet on the World Series and, after the Phillies lost, had to painfully write a blog post praising the Yankees. On The Office last week, newly-appointed regional manager Andy Bernard bet his staff a butt tattoo that they couldn’t reach an unheard of sales quota. Perhaps the most famous pop culture example of a bet is Seinfeld’s contest, where the four bet on who would be the “master of their domain.”

Then, there’s this gem, courtesy of the Des Moines Register:

A Bettendorf businessman, branded as the “boss from hell” by some of his employees, offered prizes to workers who could predict which of them would next be fired…. William Ernst, the owner of a Bettendorf-based chain of convenience stores called QC Mart, sent all of his employees a memo in March, outlining a contest in which the workers were encouraged to participate. The memo read: “New Contest – Guess The Next Cashier Who Will Be Fired!!! … To win our game, write on a piece of paper the name of the next cashier you believe will be fired. If the name in your envelope has the right answer, you will win $10 CASH.”

An administrative law judge sided with an ex-employee in her unemployment hearing, writing about the “egregious and deplorable” contest: “The employer’s actions have clearly created a hostile work environment by suggesting its employees turn on each other for a minimal monetary prize…. This was an intolerable and detrimental work environment.”

To be fair, in my career I’ve seen a lot worse work environments. For example, I vividly recall a cake in likeness of a vagina, iced with homophobic epithets, presented to an employee as a challenge to his perceived lack of manliness. Notwithstanding, I’m not sure I’d ever recommend a firing contest as a form of employee motivation.

Does the ADA protect the morbidly obese?

Two years ago, I asked whether “obese” qualified as a new protected class under the ADAAA. According to the EEOC in a newly filed lawsuit, the answer is an unequivocal “yes.”

The Houston Chronicle reports that the EEOC has filed suit against BAE Systems on behalf of Ronald Kratz II, claiming that the 680 pound man was fired because of his obesity. For his part, Kratz claims he was specifically told “he was being terminated because company officials thought he weighed too much”—the most direct of direct evidence, provided that the ADA protects obesity as a disability.

In its complaint, the EEOC alleges:

   12. At the time of his discharge, Kratz was morbidly obese. Kratz’s morbid obesity substantially limits him in one or more major life activities. Morbid obesity is a disability under the ADAAA.

   13. BAE regarded Kratz’s morbid obesity as substantially limiting him in one or more major life activities.

The leading case in the 6th Circuit on the treatment of morbid obesity under the ADA is EEOC v. Watkins Motor Lines (2006), which concluded that morbid obesity must be the result of a physiological condition to qualify as an ADA-protected disability.

Later cases, decided under the 2009 ADAAA, however, have called that holding into question. For example, Lowe v. American Eurocopter, LLC (N.D. Miss. 2010) concluded that because of how broadly the ADAAA defines both major life activities for purposes of an actual disability, and “regarded as having” a disability, the ADAAA covers morbid obesity irrespective of whether it is caused by a physiological condition.

As much as it pains me to say it, the Lowe court might be right under the current law. The ADA (as enlarged by the ADAAA) is now so expansive in its coverage that morbid obesity might be covered, even without an underlying physiological cause. Employers, chew on this morsel of information as employees get fat on ADA claims.

Hot dog! Another social media decision from the NLRB (and employers should pay attention)

A few weeks ago, an NLRB Administrative Law Judge issued the agency’s first-ever decision debating the legalities of terminating employees for social media activities under federal labor laws. Karl Knauz Motors, Inc. (9/28/11) [pdf] is the second. Following Knauz Motors, we are starting to receive some clarity as to what is (and, perhaps more importantly, what is not) protected online speech under the National Labor Relations Act, and how far employers’ policies can go in trying to restrict this speech. 

This case concerns two series of Facebook posts by Robert Becker, a salesperson at Knauz Motors’s BMW dealership, of two separate incidents.

In the first, Becker criticized a dealership promotional event at which hot dogs were passed out. Becker posted photos on his personal Facebook wall of the hot dog cart, along with sales people holding hot dogs, bags of Doritos, and bottles of water. He also posted the following a comment on the dealership’s event page criticizing the catering as beneath BMW’s standards. In the second, Becker posted a photograph on his Facebook wall of a car driven into a pond by the 13-year-old son of a customer of the adjacent Knauz-owned Land Rover dealership.

The ALJ concluded that the posts related to the BMW promotional event were protected, concerted activities for which Becker could not be disciplined or terminated—Becker, a commissioned salesperson, believed that the budget-conscious food choices could negatively impact sales and, therefore, his earnings. He had posted to enlist the support of his fellow employees as an outgrowth of a prior in-person conversation about the same issue. Conversely, the post related to the Land Rover incident was not protected—Becker posted it without discussion with other employees and without connection to any terms and conditions of employment.

Ultimately, the ALJ concluded that Knauz lawfully terminated Becker because of the Land Rover post, and not because of the hot dog posts.

Perhaps of greater interest is the portion of the opinion concerning the dealership’s employee handbook. The ALJ concluded that the following conduct policies in the handbook were overly broad:

• Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
• Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.”
• Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

According to the ALJ:

If employees complied with the dictates of these restrictions, they would not be able to discuss their working conditions with union representatives, lawyers, or Board agents.

While none of the at-issue policies was a “social media” policy, employers need to understand that the NLRB could take issue with any policy that might infringe on employees’ rights to engage in protected, concerted activities. This means that businesses must walk a fine legal line in drafting social media and other communication policies, which must be narrowly drafted to ensure that employees cannot reasonably perceive that they are limited in how they can discuss their terms and conditions of employment. In simpler terms, employers need to think twice before painting employee communication restrictions with a broad brush.

(If you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

[Hat tip: LaborRelated and Lawffice Space]