Seize the opportunity to offer accommodations for medical treatments

A Mississippi home healthcare provider has agreed to a $100,000 settlement with the EEOC for a disability-discrimination lawsuit. The EEOC’s press release offers the key facts of the case:

EEOC brought suit on behalf of Kristy Sones, a former Mississippi HomeCare employee, who suffered an epileptic seizure while working at the facility. Returning to work following her seizure, Sones requested an accommodation to help her perform certain job-related computer tasks--tasks she was having difficulty completing because of the temporary side effects of her seizure medication.  The lawsuit alleges that Mississippi HomeCare ignored Sones’ request, failed to engage in an interactive process to discuss reasonable accommodations, and provided no accommodation. Mississippi HomeCare then terminated Sones less than a month after her request for an accommodation.

According to EEOC Birmingham District Director, “We hope this resolution will be a lesson to companies of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.” This duty to consider reasonable accommodations does not just include an employee’s medical condition, but also any medications an employee is taking to treat that medical condition. Omitting this consideration can have expensive consequences, as this case illustrates.

Another viewpoint on overtime for undocumented work time

In Garcia v. SAR Food of Ohio, an Ohio federal court rejected an employer’s attempt to dismiss an off-the-clock wage-and-hour claim, because, even though the plaintiff had not reported un-clocked as “working time,” a fact issue existed over whether the employer should have known that the employee was nevertheless performing such work without compensation.

Now, an Illinois federal court has considered nearly the identical issue, a reached the opposite result. In Roberts v. Advocate Health Care, a nurse alleged that she had worked between 8 and 12 hours of unpaid overtime each week. Her employer, however, argued that she was responsible for submitting her own timesheets and that it paid her consistent with her own written representations as to how many hours she worked each week.

The federal court rejected the employee’s counter-argument that “she was performing uncompensated overtime work,” and that her supervisor, Magurany, “knew or should have known about that work,” and dismissed this off-the-clock claim.

Magurany supervised between 45 to 50 employees in multiple departments. Roberts contends that when Magurany reviewed employee time cards, she should have noticed that Roberts' time cards did not reflect time spent at the alleged post-shift meetings. This constructive knowledge argument is speculative. It rests on three assumptions: (1) Magurany knew that Roberts was off the clock during the purported post-shift meetings; (2) Magurany knew that Roberts routinely failed to correct her time cards to reflect time spent at those meetings; and (3) when Magurany reviewed Roberts' time cards at a later date, she was able to detect that Roberts' time cards shorted Roberts for time spent at the meetings…. The fact that something is theoretically possible is not enough to create a triable issue of fact….

This is especially true given that Advocate had multiple mechanisms by which employees could correct their time. Roberts used these mechanisms on multiple other occasions….

Moreover, Roberts never provided actual notice by complaining to Magurany or any other supervisor about any of the unpaid overtime she now claims that she worked….

How does an employer reconcile Garcia and Roberts within its own pay practices? The short answer is that you don’t. Different courts often reach different results on similar issues, and, until higher courts pass judgment, the issue remains unsettled. For now, if you are in Northern Ohio, Garcia is your controlling precedent and you need to pay if you know, or should know, of the undocumented work time. If you want to take a more aggressive stance and challenge the issue, you have Roberts on which to hang your hat. That challenge, however, will raise the issue of whether you are committing a willful violation of the FLSA (with its longer statute of limitations and liquidated damages) by intentionally withholding pay from an employee you know has performed work. The safer course of action is the Garcia holding, which is the path down which I would guide you.

NLRB, college athletes, and the case that doesn’t really matter

Yesterday, the NLRB closed its book on the attempt of Northwestern University’s scholarship football players to unionize, not with a thud but with a whimper. The NLRB unanimously passed on the issue of whether college athletes are “employees”, and instead held that the NLRB lacked jurisdiction to consider the petition because the inherent nature of college sports is antithetical to the purposes served by the NLRA:

[W]e have determined that, even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction. Our decision is primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case.

The Board has never asserted jurisdiction, or even been asked to assert jurisdiction, in a case involving scholarship football players or similarly situated individuals, and … we decline to do so in this case. Processing a petition for the scholarship players at this single institution under the circumstances presented here would not promote stability in labor relations. Moreover, recent changes, as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future. For these reasons…, even if the scholarship players were statutory employees (which the Board does not here decide), we have concluded that it will not effectuate the policies of the Act to assert jurisdiction in this case.

What does this case mean? Frankly, very little. It’s a huge story because the implications of an opposite ruling would have irreparably changed the nature of college sports. As it stands, the case maintains the status quo, without ruling on the key issue of private-college-athletes-as-employees. Thus, while this opinion has garnered tons of news coverage (Wall Street Journal, New York Times, ESPN), at the end of the day, its just not that big of a deal.

What’s next on the issue of “employee” at the NLRB? The McDonald’s case, which almost certainly will decide whether a franchisor is a (joint-)employer of its franchisee’s employee, and will likely be (one of the) biggest cases of 2015.

You can download a pdf of the Northwestern University opinion here.

12 things I learned on my summer vacation

I spent the last two weeks in Europe. Germany to be exact, and to be more precise, Eggenstein-Leopoldshafen, with jaunts to Paris and Munich. It was a dream holiday, spent visiting, and touring with, our German daughter (an exchange student who lived with us two years ago) and her family. With 16 days of vacation behind me, here is what I learned:

1. I have very resilient kids. We walked, a lot. According to my iPhone health app, we walked between 8 and 12 miles per day. And my kiddos (ages 7 and 9) went along for the ride, with very few complaints, all things considered.

A photo posted by Jon Hyman (@jonhyman) on Aug 12, 2015 at 10:56am PDT

2. I know the answer to the question, “How many steps does that church tower have?” We climbed Sacré Coeur in Paris, Notre Dame in Strasbourg, St. Peter in Munich, and the Perlach Tower in Augsburg, and each has 300 steps (give or take). A few pointers. Yes, the views are worth it, always. And, if the bell tower happens to be a working bell tower, the bells are loud (especially, as was the case in Augsburg, when you summit at high noon).

3. Europe is basically one big pastry shop. If it wasn’t for the fact that Europeans walk everywhere (see #1), they’d all weigh 400 pounds from the immense amount of carbs they consume in pastry form. Then again, when those pastries are les macarons at Ladurée on the Champs-Élysées, you don’t really care.

A photo posted by Jon Hyman (@jonhyman) on Aug 7, 2015 at 7:24am PDT

4. Every restaurant should be equipped with a playground. And I’m not talking about a McDonald’s playland, but a bona fide playground that will genuinely entertain the kids while the adults enjoy their meals. Such was the case at the biergarten we visited outside of Munich with our hosts’ family and friends. Also, the world would be a better place if we more often embraced the notion that the language of play is universal.

5. The Eiffel Tower is always beautiful. Yes, it’s touristy. And, yes, it’s magnificent, at day or at night, from the top, from the bottom, or from a distance.

A photo posted by Jon Hyman (@jonhyman) on Aug 5, 2015 at 11:22am PDT

6. The best part of vacations often are unplanned. Whether it’s an expected drive through an Austrian Alps lake, an impromptu classical music dance party in a Munich garden, or a photo-bomb that wasn’t meant to be videoed in slo-mo.

A video posted by Jon Hyman (@jonhyman) on Aug 10, 2015 at 2:02pm PDT

7. German beer is awesome. In this case, bigger really is better.

8. German BBQ is the real deal. One half of our hosts, Michael, loves to cook American barbecue. And he can slow-cook some damn fine fall-off-the-bone ribs. I had to travel all the way to Germany for some of the best barbecue I’ve ever had. Yes, we also ate schnitzel and sausages, and, yes, it was awesome too.

9. Europe is easy to navigate, even if you only speak English. Yet, by the end of our fortnight I had gained enough confidence to navigate shops and the grocery store on my own, more or less in German. Also, we found the Parisians to be extremely patient with our French and English, as long as you started with a “bonjour” and showed an effort. My daughter, on the other hand, was more than happy to show off her 4 years of French by ordering food in restaurants, asking for help, and even making confession at Notre Dame, all en français. Quick tip: If you’re driving in Germany, “Ausfahrt” means “exit”; it’s not the most popular city name in Germany.

10. Fast is fast, no matter where you are. I love the no-speed-limit German autobahn, and the 190 mph TGV we took to Paris. Very cool to travel that fast on land.

11. Gracious hosts and good friends make everything better. I was so worried that our European vacation could not live up to the hype I had built up in my brain. I’m happy to report it blew the roof off the expectations. I was sad to leave Germany after an awesome two weeks, and could have stayed much longer. Thanks Michael Jung, Karin Jung, Alexa Jung, and, of course, our German daughter, Zarah Jung, for being amazing hosts and tour guides. While all of the experiences, sights, touring, and eating were great, the best part of the trip was getting to know the rest of the Jungs better. Thanks again for everything. We will miss you, and we can’t wait for our next adventure.

12. Employees need vacations. I’ve always been a strong believer in vacations. The past two weeks convinced me of their need for all employees. I will return to work recharged and rejuvenated. You should encourage your employees to take vacations and do the same. How do you accomplish this goal?

• Make a meaningful vacation benefit available for all employees.
• Do not permit employees to roll-over unused vacation days. This benefit, should be use-it-or-lose-it. Otherwise, you risk employees not using it on an annual basis.
• Allow employees to disconnect while on vacation. A vacation will not achieve its therapeutic goal if employees are required to check in via email or participate in conference calls. If your workplace is not sufficiently cross trained, and your employees are not team players, to permit this level of disconnection, then you have bigger problems you need to address.
• Set an example from the top. How many of your executives and managers say, “I haven’t taken a real vacation in two years.”? If this is the case, you need to take a step back, relax, and book some bona fide time off, ASAP.

WIRTW #377 (the “…all I ever wanted” edition)

According to Nielsen Consumer Research, over the past year 52% of people did not take all their paid vacation days, leaving an average of 7.2 days unused. Why aren’t these “work martyrs” using vacation time? According to The Project: Time Off Coalition:

• 40% fear the mountain of work they’ll face when they return to work.
• 35% believe they are the only ones who can do their jobs.
• 25% do not want to risk losing their jobs or fear being seen as replaceable while on vacation.

Readers, I will not be one of those people. Today’s post in the last you’ll read until I return from my German holiday on August 17. I will be, more or less, off the grid enjoying my time off. I’ll try not to over-share vacation stories and pictures when I return.

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In the meantime, the ABA Journal has opened nominations for this year’s Blawg 100, which has honored me with inclusion for the past five years. If you’ve enjoyed what you’ve read at my blawg (or others), click here and nominate. I’ve already submitted my nominations, as the Labor & Employment Blawgosphere has a wealth of worthy blawgs from which to choose. The nomination deadline is August 16.

Also worth mentioning is The Expert Institute’s Best Legal Blog Contest, which is also soliciting nominations for legal blogs across seven different categories, including Labor and Employment. Nomination close August 21.

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Until August 17, Auf Wiedersehen.

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

Discrimination

• Discrimination v. Reality — via Heather Bussing at HR Examiner with John Sumser
• 7 Myths About the Americans With Disabilities Act — via Inc.
• The Americans with Disabilities Act at 25 — via Walter Olson’s Overlawyered
• ADA at 25 — via Understanding the Americans with Disability Act
• The Limits To Accommodating Mental Illness In The Workplace — via Eric Meyer’s The Employer Handbook Blog
• Employment law autopsy: “Old fart” gets fired — via Robin Shea’s Employment & Labor Insider
• Retaliation claims can sink an employer — via EmployerLINC
• Class-y Look: Abercrombie’s Look Policy Under Attack … Again — via All in a Day’s Work
• Is Your Paternity Leave Policy Discriminatory? — via Employment Discrimination Report

Social Media & Workplace Technology

• The Internet of Things That Eavesdrop and Invade Privacy — via Augmented Legality
• 6th Cir.: No Reasonable Expectation of Privacy in “Pocket-Dial” — via Phil Miles’s Lawffice Space
• Mötley Crüe frontman settles suit over Facebook password — via ABA Journal Daily News
• One Answer to Company Data Breaches: Better Employee Engagement — via TLNT
• Don’t Ignore YouTube When Marketing Your Law Firm Online — via Technologist

HR & Employee Relations

• When Your Model Employee Isn’t Anymore — via Dan Schwartz’s Connecticut Employment Law Blog
• On Tom Brady and Getting Caught Breaking a Rule at Work…— via The HR Capitalist, Kris Dunn
• “It’s not me, it’s you!” Seinfeld lessons on candid employee evaluations — via EntertainHR
• Finding a Perfect Work-Life Balance Is Impossible, and That’s Okay — via Lifehacker
• 7 Tips for Investigating Workplace Complaints — via In House
• Is Employee “Free Speech” A Constitutional Right? — via Minnesota Employer
• How Obama Could Make a Little Box on Job Applications a Very Big Deal — via Lindsay Blakely at Inc.

Wage & Hour

• Checking Your Email at Home Isn’t Exactly What I Would Call “Working” — via TLNT
• A Beginner’s Guide to Your Company’s Employee Stock Plans — via Lifehacker
• Can Au Pairs Legally Be Paid Less Than $5 An Hour? — via Workplace Fairness
• Can Employers Offer Compensatory Time to Exempt Employees? — via Wage & Hour Insights
• Can Au Pairs Legally Be Paid Less Than $5 An Hour? — via Workplace Fairness

Labor Relations

• Think Salaries Are Confidential? Google Found Out They Aren’t — via Evil HR Lady, Suzanne Lucas
• Lessons We Learned In Winning A Union Election Under the NLRB’s New Rules — via Hunton Employment & Labor Law Perspectives™
• Will Labor Issues Figure Prominently in the 2016 Campaign Season? — via Labor Relations Institute
• Effects of NLRB’s Adoption of “Quickie Election” Rules — via The National Law Review
• Washington Court Dismisses Challenge to NLRB’s Ambush Election Rules — via Management Memo
• NLRB Removes Blanket Exemption on Mandatory Disclosure for Witness Statements. What’s an Employer To Do? — via Employment Matters Blog

Even lone-wolf activity is concerted, according to NLRB

Bonus post today.

We know that the National Labor Relations Act protects employees who engage in protected concerted activity from retaliation. How broadly defined is concerted? According to 200 East 81st Restaurant Corp. [pdf], decided yesterday by the NLRB, concerted is defined pretty broadly.

The issue in 200 East 81st Restaurant Corp. was whether a single employee who files a lawsuit, ostensibly on behalf of himself and other employees, engages in protected concerted activity. The Board answered the question in the affirmative, holding that a lone plaintiff can engage in protected concerted activity via the filing of a lawsuit in which the employees seeks to vindicate the rights of his co-workers:

“By definition, such an action is predicated on a statute that grants rights to the employee’s coworkers, and it seeks to make the employee the representative of his colleagues for the purpose of asserting their claims, in addition to his own. Plainly, the filing of the action contemplates—and may well lead to—active or effective group participation by employees in the suit, whether by opting in, by not opting out, or by otherwise permitting the individual employee to serve as a representative of his coworkers….” (Quoting Murphy Oil USA, Inc. [pdf]).

Specifically, we hold that the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7.

Thus, as long as the intent of the lone-wolf employee is to “initiate, induce, or prepare for group action,” the lone-wolf action is concerted under Section 7.

This case has implications beyond a wage-and-hour collective action. Consider, for example, a lone employee who seeks injunctive relief in court for some work-related issue. Or, perhaps more practically, consider an employee who takes to his or her social network of choice to grip about work, yet receives no comments or replies from co-workers. Under the (il)logic of 200 East 81st Restaurant Corp., if the employee’s social-media posts are for the purpose of initiating, inducing, or preparing for group action, they are protected.

Since social media is, well, social, one could argue that any post written on social media has a group component. After all, Facebook, Twitter, etc., aren’t diaries or self-conversations. They are intended dialogues within one’s network, or with the public at-large. Thus, has 200 East 81st Restaurant Corp. killed any argument against a finding of concerted activity on social media? A fair reading of this case would lead one to that unfortunate conclusion.

You need to pay employees if you know, or should know, they are working overtime

Consider Garcia v. SAR Food of Ohio (N.D. Ohio 7/6/15) a cautionary tale.

SAR owns and operates food-court Japanese restaurants. The court previously certified a state-wide collective action for employees who were not paid for post-shift overtime. The named plaintiffs alleged that they were often required to stay past the scheduled end of their shifts, without compensation, to clean or serve expected waves of potential customers. SAR argued that the claims could not proceed because it maintains a policy that requires employees to check their weekly time records, manually enter any changes, and sign off on the records as correct. If the employees had followed that procedure, SAR argued, they would have been paid for all overtime. Indeed, as the court noted, many employees admitted that when they followed this procedure, SAR paid them for the time worked beyond their scheduled shift.

Nevertheless, the district court refused to dismiss the claims, concluding, “Although Plaintiffs did not follow established procedures that allowed Plaintiffs to claim added overtime pay, genuine issues of material fact remain as to whether Defendant SAR Food nonetheless knew or should have known that Plaintiffs were not being properly paid for all hours worked.” In explaining its rationale, the court quoted from the FLSA’s regulations:

[I]t is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.

Employers, you cannot turn a blind eye to your working employees. If you know, or should know, that employees are working “off-the-clock,” or otherwise working without compensation, you must pay them. Your remedy is disciplining the employees for performing unauthorized work, or otherwise not following your procedures for reporting working time or scheduling overtime. As this case illustrates, if you fail to pay under these circumstances, you are taking a huge wage-and-hour risk.

Retaliation alphabet-soup

Employers typically think of retaliation in terms of the big employment statutes: Title VII, the ADEA, the ADA, the FMLA, and the FLSA. Yet, there exist dozens of federal statutes that protect employees from retaliation in a variety of federally regulated industries.

Indeed, just yesterday, Cleveland.com reported that Abdul-Malik Ali, the former head of airfield maintenance at Cleveland Hopkins International Airport, filed a complaint with the Department of Labor against Hopkins and the City of Cleveland, alleging they unfairly demoted him for blowing the whistle on Hopkins for having fewer than the required number of workers on runways last winter.

Ali says that on Feb. 19, the day after he told FAA inspector Michael Stephens about  understaffing, he was removed from his 15-year post as manager of field maintenance by Airport Director Ricky Smith.

Ali said he was transferred to the job of “assistant to the deputy commissioner,” instructed to clear out his office, moved to what he called a “mop closet” behind the cab booking stand on the terminal baggage level at Hopkins and given “make-work” assignments such as counting trashcans.

If true, I’d say the airport has issues. It also makes me feel less that good about flights we took last winter.

Employers that operate in a federally regulated industry need to be aware of the alphabet-soup of statutes that could give rise to a potential retaliation or whistleblowing claim. Thankfully, the Department of Labor provides a list, handily collated at (where else?) http://www.whistleblowers.gov/:

• Affordable Care Act: Protects employees who report violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual's receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer's failure to rebate a portion of an excess premium

• Asbestos Hazard Emergency Response Act: Protects employees who report violations of the law relating to asbestos in public or private non-profit elementary and secondary school systems

• Clean Air Act: Prohibits retaliation against any employee who reports violations regarding air emissions from area, stationary, and mobile sources

• Comprehensive Environmental Response Compensation and Liability Act: Prohibits retaliation against any employee who reports alleged violations relating to cleanup of hazardous waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants

• Consumer Financial Protection Act: Employees are protected for blowing the whistle on reasonably perceived violations of any provision of the Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any other provision of law that is subject to the jurisdiction of the Bureau of Consumer Financial, Protection, or any rule, order, standard, or prohibition prescribed by the Bureau

• Consumer Product Safety Improvement Act: Protects employees of of consumer product manufacturers, importers, distributors, retailers, and private labelers who report to their employer, the federal government, or a state attorney general reasonably perceived violations of any statute or regulation within the jurisdiction of the Consumer Safety Product Safety Commission

• Energy Reorganization Act of 1974: Prohibits retaliation against any employee who reports violations or refuses to engage in violations of the ERA or the Atomic Energy Act. Protected employees include employees of operators, contractors and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission, and employees of contractors working with the Department of Energy under a contract pursuant to the Atomic Energy Act

• FDA Food Safety Modernization Act: Protects employees of food manufacturers, distributors, packers, and transporters from reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act, and employees who refuse to participate in a practice that violates the Act

• Federal Railroad Safety Act: Protects employees of railroad carriers and their contractors and subcontractors who report a hazardous safety or security condition, a violation of any federal law or regulation relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety, in addition to employees who refuse to work when confronted by a hazardous safety or security condition

• Federal Water Pollution Control Act: Prohibits retaliation against any employee who reports alleged violations relating to discharge of pollutants into water

• International Safe Container Act: Protects employees involved in international shipping who report to the Coast Guard the existence of an unsafe intermodal cargo container or another violation of the Act

• Moving Ahead for Progress in the 21st Century Act: Prohibits retaliation by motor vehicle manufacturers, part suppliers, and dealerships against employees for providing information to the employer or the U.S. Department of Transportation about motor vehicle defects, noncompliance, or violations of the notification or reporting requirements enforced by the National Highway Traffic Safety Administration or for engaging in related protected activities

• National Transit Systems Security Act: Protects transit employees who report a hazardous safety or security condition, a violation of any federal law relating to public transportation agency safety, or the abuse of federal grants or other public funds appropriated for public transportation, and also protects public transit employees who refuse to work when confronted by a hazardous safety or security condition or refuse to violate a federal law related to public transportation safety

• Occupational Safety and Health Act of 1970: Protects employees who exercise a variety of rights guaranteed under the Act, such as filing a safety and health complaint with OSHA, participating in an inspection, etc.

• Pipeline Safety Improvement Act: Protects employees who report violations of federal laws related to pipeline safety and security or who refuse to violate such laws

• Safe Drinking Water Act: Prohibits retaliation against any employee who reports alleged violations relating to any waters actually or potentially designated for drinking

• Sarbanes-Oxley Act of 2002: Protects employees of certain companies who report alleged mail, wire, bank or securities fraud; violations of the SEC rules and regulations; or violation of federal laws related to fraud against shareholders. The Act covers employees of publicly traded companies and their subsidiaries, as well as employees of nationally-recognized statistical rating organizations

• Seaman’s Protection Act: Protects employees who report to the Coast Guard or another federal agency a violation of a maritime safety law or regulation, and also seamen who refuse to work when they reasonably believe an assigned task would result in serious injury or impairment of health to themselves, other seamen, or the public

• Solid Waste Disposal Act: Prohibits retaliation against any employee who reports alleged violations relating to the disposal of solid and hazardous waste (including medical waste) at active and future facilities

• Surface Mining Control and Reclamation Act: Protects truck drivers and other employees who refuse to violate regulations related to the safety of commercial motor vehicles or who report violations of those regulations

• Toxic Substances Control Act: Prohibits retaliation against any employee who reports alleged violations relating to industrial chemicals produced or imported into the United States

• Wendell H. Ford Aviation Investment and Reform Act of the 21st Century: Protects employees of air carriers and contractors and subcontractors of air carriers who, among other things, report violations of laws related to aviation safety

The unintended and unfortunate consequence of wage-and-hour reforms

Wage-and-hour reforms are all the rage. Yet, with reform comes a potential unforeseen price—businesses that simply cannot afford to stay in business.

From Re/Code:

Cleaning services company Homejoy is shutting down on July 31 after struggling to raise a big enough round of funding. The company had already been facing growth and revenue challenges, but CEO Adora Cheung said the “deciding factor” was the four lawsuits it was fighting over whether its workers should be classified as employees or contractors. None of them were class actions yet, but they made fundraising that much harder.

Re-classifying workers as employees instead of independent contractors, raising the salary threshold so that fewer employees qualify as exempt from overtime, and increasing the minimum wage are all popular causes for employee groups to rally behind. Yet, if these reforms leave employees without jobs, was the cause worth fighting? I bet if you ask Homejoy’s soon-to-be-ex-cleaners, each would tell you they’d prefer to be paid as a independent contractor than not paid at all.

Happy birthday ADA

Yesterday, the Americans with Disabilities Act turned 25 years old. We've come a long way in the past 25 years, from a statute intended to open employment access to those with disabilities, to decades of judicial decisions that effectively closed that access, to a revised statute that has swung the pendulum so far the other way that it is now hard to envision a medical condition not covered.

The ADA's workplace focus now squarely rests on the issue of accommodation. For this reason, the law's next 25 years will be greatly impacted by technology. As technology makes our lives easier, it makes employers' jobs in accommodating disabilities more complex. And, as technologies change over time, these issues will only become more complex. Biotechnology, for example, iillustration of this tension.

So, happy birthday, ADA.

WIRTW #376 (the “…I’ll only disappoint you…” edition)

I thought I’d try something different today by bringing you a musician I’ve recently discovered—Courtney Barnett.

She’s a guitar playing, Australian, singer-songwriter, whose songs mix crunchy, grungy guitar riffs with catchy lyrical turns of phrases about otherwise mundane topics of everyday life such as house hunting (DePreston) and organic foods (Dead Fox). Oh, and she absolutely rocks. Need proof? Here she is performing “Dead Fox” in Minneapolis / St. Paul last month.

And, here’s her full set from this year’s Bonnaroo, which I am told by those who saw it live that it stole the entire festival.

The death of rock music is great exaggerated; you just need to look a little harder for it these days.

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

Discrimination

• EEOC: Let Us Imagineer ENDA For You — via Cato Daily Podcast
• Are ride-hailing businesses Uber and Lyft ADA-compliant? Massachusetts AG has questions — via ABA Journal Daily News
• Working for you supervisor may be stressful but it is not a disability — via Mike Haberman’s Omega HR Solutions
• Why the EEOC’s rebuke of sexual-orientation bias may barely affect your workplace. — via Eric Meyer’s The Employer Handbook Blog
• 4th Cir. uses “hybrid” test for Title VII joint employer liability — via Phil Miles’s Lawffice Space
• Donald Trump will win (a Title VII lawsuit) — via EntertainHR
• 25 Years Later: Has ADA Helped Employees with Disabilities? — via Families and Work Institute Blog
• Don’t ignore these e-mails! EEOC ramps up digital charge system — via HR Hero Line
• Oy Vey! No Religious Discrimination in Jewish Nurse’s Termination — via Michigan Employment Law Advisor

Social Media & Workplace Technology

• Employees’ “low-tech” sloppiness causes high-tech problems — via Robin Shea’s Employment & Labor Insider
• Ten Top Ways To Stop Employees From Surfing The Internet — via Evil Skippy at Work
• Using Social Media Without Jeopardizing Your Career — via Harvard Business Review
• Five Technology, Media, and Telecommunications Developments Important to Employers — via Technology Company Counselor

HR & Employee Relations

• Overworked Employees Are Tearing Your Company Apart — via Blogging4Jobs
• Americans are the most pointlessly overworked people in the world — via The Week
• Congratulations, your 9-to-5 Job Is Officially 24/7 — via Workplace Diva
• Surveys Show Millennials Seeking Out-of-Office Options — via Workforce
• Look out, Generation Z is about to enter your workplace — via The Telegraph
• If You’re Pregnant, Make Sure Your Doctor’s Note Includes These Things — via Lifehacker
• Real Men Take Paternity Leave — via Fathers, Work and Family
• Fewer Employers Asking Candidates to Divulge Criminal History — via employeescreenIQ Blog

Wage & Hour

• Apple hit with class-action lawsuit over bag searches ordered on its store employees — via TiPb
• “Joy” is Lost, Others Are “Uber” Upset — via All in a Day’s Work
• Homejoy shuts down after battling worker classification lawsuits — via The Verge
• Obergefell v. Hodges — How Much Does It Really Change for Employers?? — via The Emplawyerologist
• Determining What is Considered a Serious Medical Health Condition — via ERC Insights Blog

Labor Relations

• If You Can’t Beat ‘Em, Join ‘Em: SEIU Befriending Franchisees — via Matt Austin Labor Law
• Calm Down: SCOTUS’s “Friedrichs” Case Won't Mean the End of the American Labor Movement — via Workplace Fairness

Does smoke always equal fire in harassment cases?

Consider the following, taken from Briggs v. University of Detroit-Mercy (E.D. Mich. 5/27/14), and then let’s talk.

Plaintiff Carlos Briggs, former assistant coach of the University of Detroit Mercy (UDM) men’s basketball team, complains that his former boss’s boss, UDM’s athletic director (Defendant Keri Gaither), accompanied the team on road trips to engage in a sexual relationship with one of Plaintiff’s fellow assistant coaches, and that consequently, Gaither granted preferential treatment to her paramour to Plaintiff’s detriment. She later admitted the relationship with the other assistant coach, and both were fired. Plaintiff alleges that the relationship created an openly sexually-charged atmosphere … thus creating a distasteful work environment. 

Plaintiff[’s] complaint suggests that his repeated exposure to such salacious and offensive conduct just must give rise to some type of Title VII discrimination charge—Plaintiff argues what amounts to “where there’s smoke there’s fire.” That argument turns out to be a fallacious one, however: affirming the consequent. Fire can indeed cause smoke, but sometimes there is nothing more than smoke, or it is from a different source. Here, the relationship between Gaither and Plaintiff’s co-assistant coach, Derek Thomas, may well have given rise to an unprofessional and unpleasant environment, but it does not give rise to a recognized cause of action.

I’ve been trying to think of the right way to approach the Bill Cosby case from a workplace perspective. To date, 47 women have accused Cosby of drugging and raping them. Cosby has largely remained silent on the issue, even in the wake of the recent publication of a decade-old deposition in which he admitted that he obtained drugs with the intent of giving them to women with whom he wanted to have sex.

The allegations against Cosby are too old for Cosby to face any civil or criminal liability. But, in the court of public opinion, he is guilty. There is simply too much smoke surrounding this fire for any rational person to reach any other conclusion.

What should you do in your workplace upon the receipt of a harassment complaint? Should you:

1. Take solace in the Briggs decision and fall back on a smoke-and-fire defense? 
2. Presume that smoke alwasys equals fire and act according? Or, 
3. Adopt a middle ground investigate-then-act approach? 

If you chose number 3, you chose wisely. Here is what you should do.

1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.

It shouldn’t be newsworthy when a court applies “common sense” to resolve a dispute

I’d like to think that after 8-plus years of blogging, I’ve banked some capital as one who offers a common-sense approach to the often crazy world of labor and employment law. It’s refreshing to read a judicial opinion that toes the same line.

Southern New England Telephone Co. v. NLRB (D.C. Cir. 7/10/15) is an appeal of an NLRB decision that held that an employer unlawfully disciplined employees for wearing union-created t-shirts that read“Inmate #” and “Prisoner of AT$T”. The court concluded that the employer’s interest in protecting its public image and managing customer relations trumped any arguable section 7 rights enjoyed by the employees in the shirts.

Common sense sometimes matters in resolving legal disputes. This case is a good example. AT&T Connecticut banned employees who interact with customers or work in public — including employees who enter customers’ homes — from wearing union shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. Seems reasonable. No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.” But the NLRB ruled in a 2-1 decision that AT&T committed an unfair labor practice by barring its employees from wearing those shirts. Section 7 of the National Labor Relations Act protects the right of employees to wear union apparel at work. But under this Court’s precedent and Board decisions, there is a “special circumstances” exception to that general rule: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image. Put simply, it was reasonable for AT&T to believe that the “Inmate/Prisoner” shirts may harm AT&T’s relationship with its customers or its public image. Therefore, AT&T lawfully prohibited its employees here from wearing the shirt.

Bravo D.C. Circuit. Here’s to more “common sense” approaches to labor and employment disputes.

Insubordination or protected conduct? 6th Circuit has the answer.

Is there a line that separates an employee’s insubordinate outburst from an expression of protected conduct? Yazdian v. ConMed Endoscopic Technologies, Inc. (6th Cir. 7/14/15) suggest that the answer may be “no”.

Reza Yazdian, a former territory manager for ConMed, believed that he was being singled out because of his national origin or religion. He chose, however, to express that belief to management in a less-than-professional manner, which included becoming combative during a disciplinary meeting.

The 6th Circuit concluded that it should be up to a jury to decide whether, despite Yazdian’s “combative” style, the company nevertheless terminated him because of his expression of protected conduct.

Yazdian cites as direct evidence of retaliation that Sweatt [his manager] specifically referenced Yazdian’s protected statements as examples of insubordination. When Sweatt provided ConMed with examples of Yazdian’s communication problems and “unwillingness to accept and apply constructive coaching,” Sweatt cited Yazdian’s hostile-work-environment and discrimination comments as examples. Sweatt described Yazdian’s claim that Sweatt was “creating a hostile working environment for [him],” as “unprofessional” and “totally unacceptable.” Sweatt cited the incident when Yazdian said to Sweatt, “I guess you don’t like my race either” as an example of Yazdian’s alleged “unwillingness to accept and apply constructive coaching.” And, crucially, Sweatt testified that he made the decision to fire Yazdian immediately after this phone call in which Yazdian said the following: (1) that Yazdian was going to file a lawsuit, (2) that Sweatt was creating a hostile work environment, and (3) that Yazdian would respond to the warning letter with charges.… [T]hese documents are direct evidence from which a reasonable jury could conclude that Sweatt believed Yazdian’s protected activity constituted insubordination, and therefore that Sweatt terminated Yazdian because of the protected statements that Yazdian had made.

Employee have a right to express protected conduct without reprisal, just as employers have the right to discipline or terminate insubordinate employees. When the expression of protected conduct swallows the alleged insubordination, you should expect most courts to do as the 6th Circuit did here, and side with the employee. Act accordingly, and be careful not to confuse protected expressions of opposition to alleged discriminatory employment practices with insubordination.

EEOC announces that Title VII treats all LGBT discrimination as unlawful sex discrimination

Last week, the EEOC released a historic decision on same-sex employment discrimination rights [pdf]. The EEOC confirmed that, in its opinion, Title VII expressly bars discrimination based on sexual orientation. When you couple this decision with an earlier 2012 decision on transgender workplace rights, the EEOC has done what Congress has thus far refused—to re-write Title VII to include express prohibitions against LGBT discrimination.

How does the EEOC reason that allegations of sexual-orientation discrimination necessarily state a claim of Title-VII-protected sex discrimination?

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Tide VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not…. [W]e conclude that sexual orientation is inherently a “sex-based ccmsideration” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complaintant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account….

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex….

Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.

What does this mean? ENDA or no ENDA, the EEOC will accept charges alleging LGBT discrimination under Title VII’s sex-discrimination prohibition. Indeed, the agency accepted more than 1,000 of these charges last year alone.

While neither nor courts have approved this broad stroke, now is as good a time as any to consider updating to your employment policies to reflect this paradigm shift.

WIRTW #375 (the “post-it” edition)

Have you heard the one about the intern fired after hiding an offensive message for his employer buried within the stack of post-it notes he was sent out to purchase? 

Opposing Views has all the info.

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

Discrimination

• Workplace Impact of Same-Sex Marriage Supreme Court Decision — via Blogging4Jobs
• Obergefell Decision Impact on Employers — via In-house ACCess
• Federal Court Says Employer Can Be Liable for Acts of Anonymous Harasser — via Employment Matters Blog
• Hospital Settles ADA Suit Alleging It Withdrew Job Offer After Learning Applicant Had MS — via Joe’s HR and Benefits Blog
• Blatant Ageism — via Mike Haberman’s Omega HR Solutions
• Timing of Self-ID Usually Emerges As Ugly Issue as Companies Mature… — via The HR Capitalist, Kris Dunn

Social Media & Workplace Technology

• Facebook is Not Your Friend at Work — via Employment Discrimination Report
• Report: Bloggers Trusted More Than All But Family And Friends — via Above the Law

HR & Employee Relations

• Mistakes Employers Make When Conducting Background Checks — via TLNT
• The danger of a 24-hour workday — via Business Management Daily
• Post-Employment Covenants: Is an Inducement to Smile An Inducement to Cancel? — via Employment Matters Blog
• Conflating abuse and incivility in the academic workplace — via Minding the Workplace
• OSHA Extends Enforcement Date for Confined Spaces in Construction Standard — via OSHA Law Blog
• An Injured Employee Tests Positive for Drugs… Now What? — via GMS Blog
• Keeping up with Background Screening — via ERC Insights Blog

Wage & Hour

• No Vacation for Employment Law: New “Interpretation” for Independent Contractors Issued by USDOL — via Dan Schwartz’s Connecticut Employment Law Blog
• Welcome to the 1099 Economy — via Compensation Cafe
• Fedex Drivers In Kansas Are Employees Not Independent Contractors — via Wage & Hour Defense Institute
• Evaluating The Impact Of USDOL’s Salary Proposal — via Wage and Hour Laws Blog
• Will the new #overtime rules be good or bad? Here’s how to be heard. — via Eric Meyer’s The Employer Handbook Blog
• Just Say No To Overtime — via Next Blog
• How Obergefell v. Hodges Impacts Employee Leave Laws — via The Emplawyerologist
• Need To Investigate Employee Misconduct While the Employee is on FMLA Leave? Follow This Employer’s Lead — via Jeff Nowak’s FMLA Insights

Labor Relations

• Court of Appeals Reverses Board Decision Allowing Employees to Wear “Inmate,” “Prisoner” Shirts in Customer Homes — via Labor Relations Today
• Union Is the New Black: Labor Organizing in Orange Is the New Black, And What It Means For You — via Workplace Fairness
• AT&T’s “Prison” Break: “Inmate” Employees Lose NLRB Appeal — via All in a Day’s Work
• Photo ID Needed to Leave Union, Not to Vote for Union — via Matt Austin Labor Law
• Federal Judge Disregards NLRB’s Murphy Oil Holding and Dismisses Employees’ Wage/Hour Claims — via Management Memo
• Unions hit the gas: New ‘ambush’ rules cause spike in elections — via Business Management Daily

Who is an employee? DOL has answers in guidance on independent-contractor status

I’ve written a lot in the past year about the distinction between employees and independent contractors under federal wage-and-hour laws (here, here, here, and here).

To me, here is what it all boils down to (cribbed from my post, The “duck” test for independent contractors:

The best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee…. I think you know an employee when you see one.

I’ve also cautioned that it is very difficult for an employer to justify the classification of a worker as an independent contractor, and that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors.

Make no mistake, this issue is of vital importance, because the mis-classification of an employee as a contractor carries with it serious implication under the FLSA, the employment discrimination laws, ERISA, tax laws, and any other laws that regulate the relationship between employer and employee.

Yesterday, the Department of Labor’s Wage and Hour Division Administrator David Weil issued a crucial Administrator’s Interpretation on this issue. Entitled, “The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors,” the guidance clarifies the uphill battle employers face on this issue and asserts that “most workers are employees.”

In sum, most workers are employees under the FLSA’s broad definitions. The very broad definition of employment under the FLSA as “to suffer or permit to work” and the Act’s intended expansive coverage for workers must be considered when applying the economic realities factors to determine whether a worker is an employee or an independent contractor. The factors should not be analyzed mechanically or in a vacuum, and no single factor, including control, should be over-emphasized. Instead, each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is its employee).

What should employers do in response to this guidance? At the end of the day, nothing different than that which I’ve been suggesting for the past few years—in all but the clearest of cases, assume that everyone you pay in exchange for services is an employee, and act accordingly. This issue is squarely on the the DOL’s radar, and employers who take unnecessary risks do so at their peril.

Recordkeeping policies: how long is too long?

Yesterday we examined a recordkeeping issue specific to potential adverse impact claims under Title VII. Today, I want to cast the net a little wider and look at how long you need to keep a variety of documents related to your employees.

A few important points:

1. This list is in no way meant to be exhaustive. It merely provides a snapshot of how long you need to keep some of your key documents.

2. Mileage will vary from state to state. For example, I suggest keeping certain records for 6 years because Ohio’s statute of limitation for statutory discrimination claims is six years. If your state has  shorter filing period, then some of your recordkeeping obligations may be shorter.

3. If you don’t have a document-retention policy, you should. If you don’t have a guideline for how long to keep certain documents, then your employees have no idea when to destroy. They may keep documents too long, or may destroy them too soon, each of which has potentially disastrous implications in litigation. If you hold too long, then you may have to produce documents that you should no longer have, and if you destroy too soon you may open yourself up to liability for spoliation (destruction) of evidence or other sanctions.

4. Check with employment counsel on numbers 1, 2, and 3. It’s bad idea to try to manage these issues without some legal input.

Without further delay, here’s the list:

Resumés, applications, and related employment materials, including interview records and notes	6 years from date of hiring decision for non-hires and from date of termination for employees
Background checks, drug test results, driving records, company employment verifications, letters of reference and related documents	6 years from date of hiring decision for non-hires and from date of termination for employees
I-9 Forms	The later of 3 years from date of hire or 1 year after termination of employment
Written contracts	8 years after expiration
Handbooks, and other policies or procedures	6 years after expiration
Collective bargaining agreements	6 years after expiration
Compensation and time records	3 years after termination
FMLA and USERRA and related leave records	3 years after termination
Performance appraisal and disciplinary action records	6 years after termination
Benefit records	6 years after filing date
OSHA and other employee safety records	5 years after termination
Workers’ compensation records	10 years after the later of the injury or illness or the close of the claim
EEO-1s	2 years after filing date
Affirmative Action Plans	2 years after close of AAP year
OSHA 300/300A	5 years after posting
ERISA 5500	6 years after filing

Are you up on your federal recordkeeping requirements?

The EEOC announced that is has sued a nationwide provider of janitorial and facilities management services for an alleged failure to maintain records or other information that will disclose the impact of its employee selection procedures on equal employment opportunities.

What is the EEOC talking about? According to certain federal regulations, an employer must maintain, and have available for inspection, records or other information that disclose the impact which the employer's tests and other selection procedures have upon sex, African-Americans, Native Americans, Asians, Hispanics, and Caucasians.

According to EEOC Regional Attorney Debra Lawrence, "Federal record-keeping requirements ensure that certain employers make and keep records that disclose the impact of their selection procedures. EEOC's enforcement of the record-keeping requirements is important to the agency's commitment to eliminating discriminatory barriers in the workplace."

So, if you use selection criteria or tests for hiring (criminal records, credit records, etc.), you must maintain those records for all applicants.

Tomorrow, I'll share some thoughts on the other records you should be keeping relating to your employees, and for how long you should be keeping them.

Everything you want to know about the new overtime rules in 3:44

You have to hand it to the Department of Labor. It has gotten creative to spread its message to American workers about the pending changes to the overtime rules.

Last week, the DOL published to its blog a short YouTube video entitled, White Board Explainer: What is overtime? It’s wage-and-hour Schoolhouse Rock, minus the catchy tunes.

Employers are fighting an uphill battle on this issue. A populist messsge that promises more pay for more people + a slick informational campaign = an issue that employers cannot win.

But, do employers want to win this issue? As I pointed out two weeks ago, as a practical matter employers can control whether these new overtime rules actually result in increased pay. Yet, fighting this issue will play into the hands of labor unions that they are needed to increase worker pay and to generally fight for their workplace rights. Employers need to be very wary of the unintended consequence of empowering unions, and act accordingly.