10 thoughts for your mobile device policy

According to a recent survey, there are 324.3M mobile devices in the United States. Let that number sink in. It equates to 1.025 mobile devices per American. And, according to another recent survey, 46% of all American those mobile devices are smartphones. This number does not even account for the number of iPads and other tablets.

In other words, your employees are connected all the time, both at, and away from work. It also means you need to have a policy to account for this penetration of mobile devices.

Here are 10 questions for you to think about in drafting (or revising) your mobile device policy:

1. Do you allow for your employees to connect personal devices to your network? Or do you limit network connectivity to employer-provided devices? And, where is the data stored, on the device itself, or remotely? The answer to these questions will not only impact the security of your network, but also dictate which mobile devices and OSs will your company support.
2. Do you permit employees to use mobile devices in the workplace? It’s difficult to require employees to check their devices at the door. But, if you have safety-sensitive positions, you should consider protecting these employees from the distractions mobile devices cause.
3. Who pays for the device, not just at its inception, but also if it is lost or broken and needs to be replaced? If you require your employees to reimburse for lost phones, state wage payment laws may limit your ability to recoup via a paycheck deduction.
4. And, do employees have an expectation of privacy as to data transmitted by or stored on the device? Do you tell employees that their expectation of privacy is limited or non-existent? Are you tracking employees via GPS, and, if so, are you telling them? In light of last week’s ruling in U.S. v. Jones, limiting employees’ expectation of privacy is more important than ever.
5. For non-exempt employees, do you permit mobile devices to be used for business purposes, and if so, do you prohibit their use during non-working hours? Otherwise, you might be opening your organization up to a costly wage and hour claim.
6. Do employees know what to do if a device is lost or stolen? Do you have the ability to remote-wipe a lost or stolen device? Even if you have the ability to remote-wipe a device (and if you don't, you should), your employees will prevent a remote wipe if their first call upon losing a device is to Verizon (which will deactivate the phone) instead of your IT department.
7. Do you prohibit employees from jailbreaking their iPhones or rooting their Androids? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Android Market. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.
8. Are devices required to be password-protected? It will provide an extra layer of protection if the device is lost or stolen. Also, your industry might dictate an added layer of protection. Do you employ lawyers or medical professionals, for example? If so, ethical rules or HIPAA might mandate password locks.
9. Do you forbid employees from using their mobile devices while driving? 35 states (but not yet Ohio) have a laws that bans some type of mobile device use while driving. It is safe to assume that the other 15 states will soon join in. Even if your state is not included, do the right thing by suggesting your employees be safe while operating their vehicles.
10. How does your policy interact with other policies already in existence? Your mobile device policy should cross-reference your harassment, confidentiality, and trade secrets policies, all of which are implicated by the use of mobile technology.

Social media background checks : off-duty conduct laws :: oil : water

One report suggests that as many as 91% of employers use social networking sites to screen potential employees, with as many as 69% of employers rejecting a candidate because of information discovered on a social site. I’ve written before about some of the risks employers face when conducting background checks on employees via Facebook or other social media sites. Here’s one more risk for you to consider: off-duty conduct laws.

29 states have laws that prohibit employers from taking an adverse action against an employee based on their lawful off-duty activities:

• 17 states have “smokers’ rights” statutes, which prohibit discrimination against tobacco users. (Connecticut, Indiana, Kentucky, Louisiana, Maine, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming)
• 8 states have statutes that protect the use of any lawful product (e.g., tobacco or alcohol) outside of the workplace. (Illinois, Minnesota, Missouri, Montana, Nevada, North Carolina, Tennessee, and Wisconsin)
• 4 states have statues that protect employees who engage in any lawful activity outside of work. (California, Colorado, New York, and North Dakota)

What do these laws mean for employers’ online background searches? Businesses need to understand that reviewing Google or Facebook before making a hiring or firing decision is a risky proposition, which could reveal myriad lawful off-duty activities that could implicate one of these statutes (in addition to all sorts of protected EEO data).

My suggestion for a best practice? Either to hire a third party to do your searches for you, or to train an employee, insulated from the hiring process, to do them. In either case, the screener should scrub all protected information before providing any report to the the person responsible for making the hiring (or firing) decision.

Notice that Ohio is missing from the list of states with off-duty conduct laws. However, if you have operations in one of the 29 states that have do have these laws, you will want to pay close attention to this issue.

Trying to make sense of the NLRB’s lastest social media missive? Good luck!

I’ve now had a few days to digest the NLRB’s latest foray into regulating social media in the workplace. I can sum up the NLRB’s report in three words: What a mess.

In a mere 35 pages, the NLRB appears to have ripped the guts out of the ability of employers to regulate any kind of online communications between employees. The NLRB found the following facially neutral, boilerplate policies to be unlawful restraints of employees’ rights to engage in protected concerted activities:

• A provision in a social media policy which provided that employees should generally avoid identifying themselves as the Employer’s employees unless discussing terms and conditions of employment in an appropriate manner.
• Work rules that simply prohibited “disrespectful conduct” and “inappropriate conversations.”
• A social media policy that prohibited employees from using social media to engage in unprofessional communication that could negatively impact the employer’s reputation or interfere with its mission or unprofessional/inappropriate communication regarding members of its community.
• A communications systems policy that prohibited employees from disclosing or communicating information of a confidential, sensitive, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.
• A communications systems policy that prohibited use of the company’s name or service marks outside the course of business without prior approval of the law department.
• A communications systems policy which required that social networking site communications be made in an honest, professional, and appropriate manner, without defamatory or inflammatory comments.
• A communications systems policy which required that employees state as part of posts on social media sites that their opinions are their own and not their employer’s.
• A social media policy that prohibited discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites. 

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

What policy did the NLRB conclude was lawful? A policy that limited its reach to social media posts that were “vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

What are the four takeaways for employers from this fiasco?

1. I’m not sure anyone at the NLRB actually uses social media. If they had any real-world knowledge about the topic on which they are opining, the report would read a whole lot differently.
2. If these boilerplate, facially neutral, communications policies cannot withstand scrutiny, I would venture to bet that 99% of all employers in this country have policies that the NLRB would strike down if challenged. 
3. If communications that would otherwise violate Title VII are the only types of workplace communications that employees can lawfully regulate, businesses might have to concede that they are very limited in their ability to regulate employees’ online conversations (at least until federal courts begin to weigh in on these issues and rein in the NLRB).
4. Businesses that try to implement a workplace social media policy, or discipline employees for their online activities, without first consulting with counsel are asking for trouble with the NLRB.

WIRTW #210 (the “organizing my life” edition)

I live in a constant search for the perfect task organizer/to-do list. For the past several months, I’ve been using Toodledo, which is robust, but overly complex for my needs. But, I’ve stuck with it because I can use it across all of my platforms (the PC in my office, my Mac at home, my Android phone, and my iPad—this is what life has become in 2012). Toodledo, however, is about to get kicked to the curb. Welcome to my life, Any.do. Where Toodledo is complex, Any.do is elegant in its simplicity, allowing you to add tasks to complete today, tomorrow, this week, or next week, drag and drop tasks between days, set priorities, reminders, folders, notes, and automatically sync to your contact list for emails and phone calls. Right now, it’s only available on Android, but the developer promises an iPhone app is on the horizon, as is a web app. Once the web app is released, I will say toodles to Toodledo.

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

Discrimination

• Fired for Wearing a Fake Penis? — from Phil Miles’s Lawffice Space
• “Religious employers must cover pill, Feds say” — from Walter Olson’s Overlawyered
• Company's “100% healed” policy does not create per se disability discrimination — from Employment Law Matters
• Employee Suffering from IBS Allowed to Proceed with Retaliation Claim — from SmartHR
• Discrimination Claims At EEOC Hit Record Level — from Laconic Law Blog
• Can you be fired if your dad had cancer? — from CareerDiva, Eve Tahmincioglu

Social Media & Workplace Technology

• #McDStories: When A Hashtag Becomes A Bashtag — from Kashmir Hill’s The Not-So Private Parts
• Is It Legal for an Employer to Secretly Track an Employee’s Personal Vehicle 24/7 for One Month? Perhaps! — from Workplace Privacy Counsel
• What Employers Should Know about the Supreme Court’s Decision Concerning GPS Privacy Rights — from Minnesota Employer
• The Small Business Social Media Cheat Sheet — from Flowtown
• Married to Your Business Twitter or Facebook Account? Think Before You Say, “I sue” — from Social Media Today
• Teachers warned over befriending pupils on Facebook — from The Guardian

HR & Employee Relations

• That Comment Bubble Could Get You In Trouble — from Stephanie Thomas at Compensation Cafe
• Super Bowl Office Pools in Connecticut – What Box Are You In? — from Dan Schwartz’s Connecticut Employment Law Blog
• Why HR Professionals Should Never Rely on “the Law” as the Source of Their Power — from Strategic HR Lawyer
• Can you be fired for skipping lunch? — from Evil HR Lady, Suzanne Lucas
• Real World, Real Life: Why Your Kids Need a Good Work Ethic — from TLNT
• “No-poach” emails between Apple, Adobe, and Pixar revealed in court documents — from The Verge
• Don’t Send Me Your Kid and Expect Me to Fix The Big Problems… — from The HR Capitalist, Kris Dunn

Wage & Hour

• OFF-CLOCK WORK: “Flintstone” laws in a “Buck Rogers” world — from Robin Shea’s Employment and Labor Insider
• Three Times Employees Must be Paid Not to Work — from Reuters
• Certification of Call Center Class Given the Boot — from The Wage and Hour Litigation Blog
• Never Ever Retaliate — from Manpower Employment Blawg
• Taking Note of How Family and Medical Leave Act Interference Claims to be Decided — from Jason Shinn’s Michigan Employment Law Advisor
• Fact or Fiction: If you don't say “FMLA”, you can’t take FMLA leave? — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• Can a Neutrality Agreement be an “Improper Payment” to a Union? — from Labor Relations Update
• IKEA Workers In Maryland Vote To Unionize — from The Huffington Post
• More Lockouts as Companies Battle Unions — from Steven Greenhouse at the New York Times

The word of the day is “systemic”

The EEOC has published its draft strategic plan for fiscal years 2012 – 2016. A quick Ctrl-F for the word “systemic” reveals 16 different hits in this relatively short document.

“Systemic” cases, according to the EEOC, are those that “address a pattern, practice or policy of alleged discrimination and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area.” The identification, investigation, and litigation of this category of cases remains a “top priority” of the agency. When the EEOC publishes the final version of its strategic plan, expect to see a target percentage of systemic cases in the agency’s litigation pipeline.

What does this mean for employers? It means that company-wide policies that have the potential affect certain groups more than others very much remain on the EEOC’s enforcement radar. What are some of these issues for employers to heed:

• Arrest and conviction records
• Work-life balance and the plight of working moms
• Religious accommodations and “look” policies
• Leave of absence policies
• Credit histories
• Employment status 
• Age 

Keep an eye on these issues, because you can bet the EEOC will be (at least for the foreseeable future).

BREAKING: NLRB issues 2nd report on social media as protected concerted activity

I just received the following news release, via email, from the NLRB:

To help provide further guidance to practitioners and human resource professionals, NLRB Acting General Counsel Lafe Solomon has released a second report describing social media cases reviewed by his office.

The Operations Management Memo covers 14 cases, half of which involve questions about employer social media policies. Five of those policies were found to be unlawfully broad, one was lawful, and one was found to be lawful after it was revised.

The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. But in one case, the discharge was upheld despite an unlawful policy because the employee’s posting was not work-related.

The report underscores two main points made in an earlier compilation of cases:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Given the new and evolving nature of social media cases, the Acting General Counsel has asked all regional offices to send cases which the Regions believe to be meritorious to the agency’s Division of Advice in Washington D.C., in the interest of tracking them and devising a consistent approach. About 75 cases have been forwarded to the office to date. The report, which does not name the parties to the cases or their locations, illustrates that these cases are extremely fact-specific.

This report underscores that employees’ use of social media to discuss the workplace and work-related issues, and the impact of business’s social media policies on those discussions, remains at or near the top of the NLRB’s priorities. Because the NLRB is taking such an interest in this area, employers act at their peril if they discipline or discharge an employee for social media activities, or roll out a social media policy, without the advice and input of counsel well-versed on these issues.

You can download a complete copy of the Operations Management Memo [pdf] here.

When office pranks attack

Read these facts, from Slasinski v. Confirma, Inc. (6th Cir. 1/24/12) [pdf], and I’ll be back to discuss:

In July 2007, members of Confirma’s sales team, including Mr. Slasinski, attended a week-long seminar in Bellevue, Washington.  On the evening of July 25, 2007, Mr. Slasinski and others … attended a dinner cruise….

Near the end of the cruise, but before the boat docked, Mr. Slasinski proceeded toward the ship’s lavatory on the aft end of the boat. Before he reached his destination, Mr. Slasinski observed a colleague named Kris Daw enter the lavatory. Several other Confirma employees were standing nearby, and Mr. Slasinski observed Bickford engage an external lock on the lavatory door, thereby locking Daw inside. A few moments later, Bickford unlocked the door and released Daw to the laughter of those standing nearby.

Mr. Slasinski then entered the lavatory and shortly thereafter discovered that he also had been locked inside … approximately 20 to 25 minutes. During that time, the boat docked and the other Confirma employees disembarked. After some time had passed, Mr. Slasinski began making phone calls to colleagues on his cell phone to request assistance…. Mr. Slasinski then resorted to kicking the door in an attempt to free himself, at which point the boat’s crew discovered and released him.

Like any embarrassed employee, what did Slasinski do? He sued, for false imprisonment. After a four-day trial, the jury returned a verdict in favor of Confirma, which the appellate court upheld:

If the jury accepted Confirma’s version of the facts, and drew all inferences in Confirma’s favor, it could easily have found that Mr. Slasinski entered the lavatory knowing he would be locked inside as part of the prank, and thus initially consented to the confinement. Moreover, for at least part of the duration of his confinement, Mr. Slasinski did not knock, call out to, or otherwise beseech any of the Confirma employees standing nearby to release him. A reasonable jury could conclude, therefore, that any confinement Mr. Slasinski experienced began with his consent, and only after the passage of time became against his will. A jury could further conclude, based on the evidence, that the period of unconsented-to confinement was of such brief duration as to be only momentary or fleeting.

What does this case mean? I could draw a great lesson about or the risks of lawsuits coming from anyone at any time, or the importance of workplace training to avoid similar problems, or the synergy between employee morale and having a good laugh, but instead, watch this:

See you tomorrow.

If employees had common sense, I’d be out of a job

Last Thursday, I participated in the Social Workplace Twitter Chat (#SWchat), which covered social media policies. In response to a question on whether employers need social media policies, or if they can leave employees to their own devices, I responded as follows:  

If SM was common sense for employees, we wouldn't be having this #SWchat

– and –

That's why book is called "Think Before You Click" (something few Ees regularly do) see.sc/Ja8cav #SWchat #sorryfortheselfpromo

In other words, if employees had common sense, I (and every other employment lawyer) would be out of a job.

Case in point: long-time Philadelphia TV weatherman (and notorious playa) John Bolaris, who lost his job last week because of an interview he gave to Playboy magazine discussing a debaucherous night in Miami that resulted in the Russian mob (of all things) drugging him and scamming him out of $43,712.25. Here’s my favorite quote from the Playboy interview (courtesy of Gawker):

He saw two women on a swing. Very elegant, beautiful, classy, with jet-black hair and blue eyes… They were smoking cigarettes in that exotic European manner… “I’m a guy,” Bolaris says. “There was the thought that I might get laid.” It never dawned on him to be suspicious about two gorgeous, elegant women all over him like a wet suit, he says, because “I was used to girls in Philly coming on to me aggressively once they found out I was John Bolaris, the TV weatherman.”

Needless to say, his employer was less than pleased by his very public discussions of his escapades.

As long as employees continue to engage in public discussions about what should be private matters, the role of employers in monitoring and regulating their employees’ online activities will continue to be a very active part of the discussion. And, as long as employees lack the common sense to keep these matters private, yes, you need a social media policy to direct their behaviors and expectations.

Maybe Warren Zevon said it best (and maybe John Bolaris should have heeded his advice):

I went home with the waitress
The way I always do
How was I to know
She was with the
Russians, too?

Do not forget to tell employees how you are calculating FMLA leave

Two of the most popular post on this blog relate to how employers calculate their employees’ “annual” FMLA leave allotment:

• Determining the “12-month period” for FMLA leave
• Calculating the rolling 12-month FMLA leave entitlement

(Go head, click through and read; I’ll wait).

On Friday—in Thom v. American Standard, Inc. [pdf]—the 6th Circuit illustrated for employers why it is crucial for employers to communicate to their employees which of the methods to calculating the 12-month period they are using. Thom involves an employee terminated either during his FMLA leave (if the employer was calculating his 12 weeks of leave using the “calendar year” method) or after his FMLA leave expired (if the employer was using the “rolling” method). The employer argued that it had always used the rolling method, which it formally published in its policies before Thom’s FMLA leave and termination. The Court disagreed:

Although American Standard did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give Thom actual notice of this changed policy….

This case illustrates both the importance of designating your FMLA year, and providing proper notice to your employees of that designation or any subsequent changes. In this case, the failure cost the employer $312,402.60, an expensive lesson.

WIRTW #209 (the “I am the greatest” edition)

This week, we celebrated the 70th birthday of the greatest (and most entertaining?) athlete ever, Muhammed Ali:

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

Discrimination

• Tell the EEOC What You Think — from Manpower Employment Blawg
• Not all harassment trainings are created equal — from Warren & Hays Employment Law Blog
• Alcoholism as a disability under the ADA — from Employment Law Bits
• It’s All Fun and Games Until a Fake Penis Gets You Fired — from Above the Law
• Don’t Make Me Gag: Confidentiality of Settlements When The Other Side Blabs — from Donna Ballman’s Screw You Guys, I’m Going Home
• 5 Reasons Why Criminal Background Checks Are a Perfect Storm for a Lawsuit — from Molly DiBianca’s Delaware Employment Law Blog

Social Media & Workplace Technology

• 4 Tips on How to Use Facebook at Work and Not Get Fired — from Jessica Miller-Merrell’s Blogging4Jobs
• When a prospective employer wants your social media passwords — from Ask a Manager
• Download Someone’s Entire Twitter Feed — from Social Media, Esq.™
• E-discovery Made Simple (Or At Least Simpler) — from i-Sight Investigation Software Blog

HR & Employee Relations

• Stop managing by the clock — from Evil HR Lady, Suzanne Lucas
• Communicating Termination Decisions Requires Humanity from Russell Cawyer’s Texas Employment Law Update
• Modern Family F-Bomb Controversy: “This Is Not Child Abuse!” Says Star Jesse Tyler Ferguson — from E! Online’s Watch w/Kristin
• BE CAREFUL WHAT YOU WISH FOR … 2 Simple Things You Need to Do to Make Sure You Get the Best Candidate or Protect Yourself if You Don’t — from Michigan Employment Law
• Employee Trouble on the High Seas — from Minnesota Labor & Employment Law Blog
• No Fiduciary Relationship Created Between Medical Resident and Program Director — from Dan Schwartz’s Connecticut Employment Law Blog
• An 8 Hour New Hire Orientation? When Does HR Go Too Far? — from Fistful of Talent

Wage & Hour

• “Black Swan” Unpaid Interns Raising Legal Issues — from Overtime Advisor
• Email and overtime: the Brazilian connection — from John Holmquist’s Michigan Employment Law Connection
• Revenge of Dukes - Another One Bites the Dust — from Fair Labor Standards Act Law
• Timekeeping Methods the USDOL Encourages Your Employees to Use — from Mike Haberman’s Omega HR Solutions
• Insurance Company Special Investigators are Exempt Under Federal and State Laws, Ohio District Court Rules — from Wage & Hour Counsel
• Oh, baby? An employee's pre-eligibility FMLA request is protected — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• Sprague on Facebook & the NLRB — from Workplace Prof Blog
• Social Media, the National Labor Relations Board, and Why Health Care Employers Should Be Concerned — from Health Employment and Labor
• NLRB Continues to Tackle Social Media Issues — from Employer Law Report
• Obama's “Recess” Appointments and the Constitution — from Phil Miles’s Lawffice Space

Competition & Trade Secrets

• Non-Compete Agreements Are Not Always Fair — from Tom Crane’s San Antonio Employment Law Blog
• Top 10 2011 Developments/Headlines in Trade Secret, Computer Fraud, and Non-Compete Law — from Trading Secrets
• Dispute Serves Up Lessons for Restaurateurs in Employee Defection and Trade Secrets — from Trade Secrets & Non-Compete Blog
• Why Don’t Non-Compete Agreements Seem to Apply to Football Coaches? — from TLNT
• New Weapon for Michigan Employers for Protecting Against Unfair Competition and Trade Secret Theft — from Jason Shinn’s Michigan Employment Law Advisor
• The Erosion of Customer Lists As Trade Secrets: Are They Still Worth Protecting? — from The Trade Secrets Litigator

“Friending” co-workers depends on your level of organizational risk tolerance

On Time Magazine’s Moneyland Blog, Dan Schawbel asks the following questions: “Is it a bad idea to friend co-workers on Facebook? How about your boss?” In his post, Mr. Schawbel discusses a recent study of 4 million Gen-Y Facebook profiles, conducted by Millennial Branding and Identified.com, which found the following:

• Nearly two-thirds (64%) of Gen-Y Facebook users omit their employers from their profiles.
• Only 16 out of an average Gen-Y Facebook user’s nearly 700 friends are co-workers.

From these findings, Mr. Schawbel concludes:

Gen-Y needs to be aware that what they publish online can come back to haunt them in the workplace. Gen-Y managers and co-workers have insight into their social lives, which could create an awkward workplace setting or even result in a termination.

There is no one-size-fits-all solution to the issues raised by co-workers connecting via social networks. Social sites such as Facebook and Twitter can be a powerful tool for added employee engagement and communication. Because of the the added connectivity, however, they also present an added risk for problems such as harassment, retaliation, and invasions of privacy. You have five options to choose from in the level of connectivity to permit for your employees. Which answer you choose will depend on how you balance the benefit of the added communication versus the risk of potential problems:

1. Anything goes. Any employee can friend any other employee regarding of rank or position.

2. Supervisors are prohibited from friending direct reports, but employees can friend their supervisors (who can choose whether to accept the request).

3. Supervisors and their reports cannot be Facebook friends, regardless of who initiates the request.

4. Employees are only permitted to be Facebook friends with their peers. No one can friend anyone higher or lower on the org chart.

5. Employees are expressly prohibited from being Facebook friends with any co-workers, regardless of position.

Regardless of which option you choose, you should choose one to incorporate into your social media policy, and train your employees about the dangers of unfiltered online communications and the proper use of social media inside and outside of the workplace. Without the appropriate training of your employees on these new and evolving issues, you might as well not have the policy at all.

Is it time to do away with McDonnell Douglas?

For the unfamiliar, the McDonnell Douglas test is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. (For the familiar, skip down the next paragraph.) It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination. This test is engrained in the hearts and minds of anyone who practices employment litigation.

Early this month, in Coleman v. Donahoe, the 7th Circuit (albeit in a concurring opinion), asked whether the McDonnell Douglas test still has any utility:

Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, … the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one.

Yesterday, the 6th Circuit, in Donald v. Sybra, Inc. [pdf], helped prove the 7th Circuit’s point. Sybra, which owns Arby’s franchises, terminated Gwendolyn Donald’s employment after it concluded she had been intentionally mis-ringing customer orders to steal from her cash register. Among other issues, she claimed that Sybra terminated her employment both in retaliation for, and to interfere with, her rights under the FMLA. After concluding that the McDonnell Douglas framework applied to both her retaliation and interference claims, the court ignored McDonnell Douglas, and affirmed the district court’s grant of summary judgment to the employer:

The district court effectively gave Donald the benefit of the doubt and assumed that she could establish both prima facie cases. This boon notwithstanding, the district court determined that Donald produced insufficient evidence to prove that Sybra’s stated reasons, cash register and order irregularities, were pretextual….

Donald’s claims fundamentally rest on the timing of Sybra’s decision to terminate her employment [the  day after she returned from her FMLA leave], which, we admit, gives us pause. But that alone is not enough, and her other arguments are no more persuasive. Whether Sybra followed its own protocol, or its decision not to prosecute Donald, or even Donald’s history of employment, provides neither us, nor a rational juror, with a basis to believe that Sybra’s decision was improper. The district court therefore correctly dismissed Donald’s FMLA claims.

If courts skip the first two steps of the McDonnell Douglas test and go right to the heart of the matter—whether a rational jury could conclude that the employer took that adverse action on account of her protected class—does it make sense to continue the charade of pretending that McDonnell Douglas remains useful? As a management-side litigator, I like the ability to have more than one evidentiary bite at the apple in trying to get a case dismissed on summary judgment. As a pragmatist, however, I’m afraid that the concurring opinion in Coleman v. Donahoe might be correct, that “the time has come to collapse all these tests into one.”

Clearing a path to complain is a key part of any harassment policy

EEOC v. Management Hospitality of Racine, Inc. (7th Cir. 1/9/12) concerns some of the worst allegations of sexual harassment you will encounter, especially when you consider that the complaining employees were both teenagers and that the harassing manager was a decade their senior.

The employer tried to avoid liability by relying on its zero tolerance sexual harassment policy and its prompt investigations of complaints. The court disagreed for several reasons, including that managers had never received any harassment training and that the employer waited two months to investigate the complaints in this case. Most importantly, however, the court concluded that the employer’s harassment policy failed on its face:

An employer’s complaint mechanism must provide a clear path for reporting harassment, particularly where, as here, a number of the servers were teenagers…. Flipmeastack’s sexual harassment policy did not provide a point person to air complaints to. In fact, it provided no names or contact information at all.

What does this mean for you? A harassment policy is worthless if it does not tell employees how to complain and to whom to make complaints. Let me make one additional suggestion — have more than one avenue for complaints. You do not want to be in a situation where an employee does not complain because the person to whom your policy directs him or her is the alleged harasser. Suggest that employees can complain to anyone in management, up to and including the head of your company. Depending on the size of your organization and the resources available, consider implementing a harassment complaint hotline or inbox.

What Dr. King fought for … and what he didn’t

What MLK fought for…

From abcnews.com, discussing the resolution of a story on which I reported last month:

The Ohio Civil Rights Commission dismissed a landlord’s claim today that a “white only” pool sign was simply an historical antique sign and ruled that it was discriminatory…. The five-member commission decided unanimously on the matter, upholding an earlier ruling…. [According to the landlord,] “If I have to stick up for my white rights, I have to stick up for my white rights. It goes both ways.”

What MLK did not fight for…

From Brown v. Village of Woodmere [pdf], a race discrimination case decided last week by the Cuyahoga County Court of Appeals:

Brown further admitted that he was aware of the village’s electronic use policy and his use of the sergeant’s computer was in violation of the policy…. The mayor testified that she terminated Brown after she viewed the pornographic images that were on the sergeant’s computer; the images included pictures of Brown’s genitalia…. Under the circumstances presented in this case, summary judgment on Brown’s racial discrimination claim was entirely appropriate

Any questions?

WIRTW #208 (the “manners” edition)

Next week, my daughter’s kindergarten class will hold its second “manners lunch.” It is a formal lunch, with formal place settings, at which the children learn proper table manners. I hope that she takes these manners with her for the rest of her life. Lately, however, I’ve been reminded that not everyone exhibits proper manners. As a courtesy to my opposing counsel in a case, I notified him that I would be bringing a college student, shadowing at my firm, to an upcoming pretrial conference. Believe it or not, he objected:

Jon:

We do not agree with your intention to bring an outsider to the status conference tomorrow. The last thing we need is a distraction, especially since we are only 30 days from trial and the parties need to conduct candid discussions concerning this matter. Only trial counsel and parties should be at the conference.

Regards,

Am I off my rocker for being upset about this discourtesy? Does anyone see any harm in a college student, wanting to learn a little about what a litigator does, sitting quietly in a federal courthouse conference room observing a pretrial?

Anyhow, here’s what I read this week:

Discrimination

• God Has No Place in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs
• Can ADA-disabled employees be required to work overtime? – from Eric Meyer’s The Employer Handbook Blog
• Disability Discrimination Law Is a Mess in More Than Ohio – from Michael Fox’s Jottings By An Employer’s Lawyer
• “But it’s unfair to other employees” not an excuse when it comes to reasonable accommodations – from Warren & Hays Employment Law Blog
• For Many, “It’s That Time of Year”: Affirmative Action Plan (AAP) Revision – from Employer Law Report
• Will I Be Taxed on My Employment Law Settlement? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Too Smart to Hire? – from Phil Miles’s Lawffice Space
• Papa John’s Employee Calls Woman “Lady Chinky Eyes” on Receipt – from ABC News

Social Media & Workplace Technology

• Create a Social Media Policy to Protect Your Business and Employer Brand – from Workplace Insights
• 7 signs we’re living in the post-privacy era – from MSNBC’s Techolog
• Learn How to Gather Social Media Evidence That Holds Up in Court – from i-Sight Investigation Software Blog
• When an Employer Posts to Employee’s Facebook and Twitter Accounts, Bad Things Happen – from Molly DiBianca’s Delaware Employment Law Blog
• Top Ten Social Media Pitfalls to Watch out For – from Meaghan Edelstein at Social Axcess
• Do Active Social Media Users Make Less Ethical Employees? – from Workplace Diva

HR & Employee Relations

• Hiring is NOT an Impulse, It Is an Investment – from Mike Haberman’s Omega HR Solutions
• Pepsi and the Art of Criminal Background Checks – from The HR Capitalist, Kris Dunn
• Pepsi “Popped” for Using Criminal Background Checks – from Texas Employer Handbook
• Pepsi Settles with the EEOC for Background Screening Practices – from Nick Fishman at the employeescreenIQ Blog
• 2012 Human Resources Updates: What Employers Need to Know – from CPEhr
• Why Mitt Romney likes to fire people – from Evil HR Lady, Suzanne Lucas
• 7 Things Your Employees Will Never Tell You – from Inc. Magazine
• Employers close door on smokers – from USA Today
• After Ohio Jury Finds Trade Secret Misappropriation But Awards Zero Damages, Trial Judge Enters Injunction Order But Sets Royalty Payment As Alternative – from Trading Secrets

Wage & Hour

• 9 Secrets For Coordinating Leave Under the FMLA and ADA – from SmartHR
• Expired FMLA Forms OK for Now – from Human Resources News
• Mandatory paid sick leave: a basic right? – from Employment Law Bits
• What to Expect When You’re Expecting the Department of Labor – from Dan Schwartz’s Connecticut Employment Law Blog
• What Are Hours Worked Under the Fair Labor Standards Act (FLSA)? – from Minnesota Employer

Labor Relations

• New NLRB Officially Here – from Workplace Prof Blog
• Potty Mouth Employee Loses Protection – from Labor & Employment Law Perspectives

Supreme Court finds religion, dismisses discrimination lawsuit

Any decision issued by the Supreme Court in an employment case is newsworthy. Thus, even though Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC [pdf] concerns the viability and applicability of the narrow ministerial exception under Title VII, it is still worthy of discussion.

Hosanna-Tabor employed Cheryl Perich as an elementary teacher. She started her employment as a “lay” teacher, and later received her “diploma of vocation” as a commissioned minister “called” by God. As a teacher, she spent approximately 45 minutes per day teaching religious studies, and the rest teaching secular subjects. Hosanna-Tabor terminated her employment after she began suffering from narcolepsy and threatening to sue for discrimination. The EEOC sued on her behalf under the ADA.

Last year, the 6th Circuit permitted Perich to continue with her lawsuit, finding dispositive the fact her primary job functions were secular, not religious. The Supreme Court unanimously disagreed, recognized that a constitutional ministerial exception exists under Title VII, and that because Perich was a religious employee she could not sue for discriminatory termination.

Other bloggers, who got to this case before me, have admirably recapped the Court’s opinion:

• Supreme Court recognizes “ministerial exception” to employment law protections – from Adam Bonin at Daily Kos
• Just In: SCOTUS Rules 1st Amendment Bars Minister's Discrimination Claim – from Phil Miles’s Lawffice Space
• Ministerial exception bars minister's termination suit against church – from LawMemo Employment Law Blog
• Opinion recap: A solid “ministerial exception” – from SCOTUSblog
• BREAKING: U.S. Supreme Court Supports Fairly Broad “Ministerial Exception” to Anti-Discrimination Laws – from Dan Schwartz’s Connecticut Employment Law Blog
• SCOTUS Upholds and Applies Ministerial Exception – from Workplace Prof Blog
• Ministerial Exception to Employment Discrimination Laws Upheld by Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. – from George’s Employment Blawg
• First Supreme Court Employment Decision of 2012 – from Manpower Employment Blawg

Instead of retreading their ground, I thought I’d focus on what this case means going forward. Chief Justice Roberts, writing for the majority, made it clear that this case only addressed an employment discrimination claim, and not other possible claims a “minister” might bring against a religious institution:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

***

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Wage and hour claims? A church employee fired after being wrongly accused of molesting a child? Given the Court’s reliance on the right of a church, conferred by the Constitution, to “control … the selection of those who will personify its beliefs,” it will be hard to imagine a different result in future cases.

Statistics show that lactation breaks are not a workplace problem

Before you read further, make sure you are sitting down, and that there is nothing blunt nearby for you to bump your head on if you pass out from the shock. Okay, here we go. According to the Huffington Post, since Obamacare mandated that employers provide space in the workplace for mothers to lactate, the Department of Labor has cited a whopping 23 companies for not providing adequate lactation breaks or spaces.

According to the U.S. Census Bureau’s latest statistics, there are 5,767,306 American employers, and yet only 23 have been cited for a violation of this mandate. In other words, the Department of Labor has cited .0004% of all American employers. If we only consider employers with 20 or more employees, the DOL has cited .0038%—still an infinitesimally small number. If we only consider the largest of employers—those with 100 or more employees—the percentage of citations drops to a still-miniscule .023%.

What does this mean? Either that the lactation mandate is not yet widely known, and as public knowledge catches up with the law’s requirements complaints (and citations) will rise. Or, the lack of lactation space in American workplaces is a myth that does not need need a legislative solution.

Are there employers that violate women’s rights (already protected by Title VII) to lactate in the workplace? Absolutely. Do enough trample these rights such that we need legislation to address this issues? Likely not.

[Hat tip: ABA Journal]

Is the NLRB backing off its position on social media as protected, concerted activity?

A quartet of advice memos released by the NLRB’s Office of the General Counsel over the past weeks suggests that the NLRB may be backing of its extreme protections of employee social media posts as protected, concerted activity.

• In Children’s National Medical Center [pdf], the General Counsel recommended the dismissal of a charge brought by a respiratory therapist terminated for updating her Facebook status during an ambulance ride to threaten a co-worker who was committing the cardinal sin of sucking on her teeth:

“[T]here is no evidence to establish concert. The Charging Party did not discuss her Facebook post with any of her fellow employees, and none of her coworkers responded to the posts…. The Charging Party was merely airing a personal complaint about something that had happened on her shift.”

• In TAW Inc. [pdf], the General Counsel recommended the dismissal of a charge brought by an accountant terminated for refusing to remove a Facebook post which suggested that her employer was engaged in fraudulent accounting practices:

“Even if the Charging Party initially posted the comment in furtherance of alleged concerted activity …, her refusal to remove the comment after the April 18 meeting with the outside auditor was not protected…. [H]er comment suggesting that the Employer was engaged in fraud was false and, after April 18, she knew it was false. Her insistence on retaining the post after knowing it was false is not entitled to protection under the Act.”

• In Copiah Bank [pdf], the General Counsel recommended the dismissal of a charge brought by a bank teller terminated for off-duty Facebook posts complaining that employees at another branch had “narced” on her:

“The Charging Party did not post her comment on her Facebook page in furtherance of concerted activity for mutual aid or protection. The Charging Party admits that that she was not speaking on behalf of any other employees, nor is there evidence that that she was looking to group action when she posted her comments on Facebook.”

• In Intermountain Specialized Abuse Treatment Center [pdf], the General Counsel recommended the dismissal of a charge brought by a therapist who took to her Facebook wall to complain about staff meetings, including at least one interaction with a co-worker during which they agreed to use Facebook to “complain about work.”:

“The Charging Party’s Facebook posting was merely an expression of an individual gripe about … a staff meeting that affected only the Charging Party – her removal as the facilitator of her victims group. The posting contained no language suggesting that she sought to initiate or induce co-workers to engage in group action. And the only co-worker who commented in response to the posting stated that he did not think that the Charging Party’s post was an attempt to change anything at work.”

These G.C. memos suggest, as I suggested almost a year ago, that the sky may not be falling in regards to social media and the NLRB. Children’s National, TAW, and Copiah Bank are reasoned opinions on lone-wolf employees who took to social media to air gripes about work, or, in the case of Children’s National, to threaten a co-worker.

Intermountain, though, may have wider implications. One of my key concerns about the NLRB’s foray in regulating workplace social media is that by its very nature, social media is concerted, i.e., does a co-worker’s unsolicited comment or response to a social media post convert lone-wolf conduct into concerted activity? Intermountain suggests that the concerted nature of the social media activity depends on both the intent of the original poster and the understanding of that intent by any subsequent commenters.

These issues are far from settled. Intermountain, though, is a good first step in the right direction to providing employers some much needed clarity in this area. It’s also a welcoming sign that the NLRB isn’t forging ahead with blinders on in this area.

NLRB trumps U.S. Supreme Court on class action arbitrations

Last year, the U.S. Supreme Court, in AT&T Mobility v. Concepcion, held that a business could compel a group of individuals to waive their right to file a class action lawsuit and instead arbitrate their collective dispute. Employers rejoiced, believing that they finally had the weapon they needed to battle the scourge of wage and hour class actions. Last Friday, however, the NLRB struck a blow against this apparent victory.

In D. R. Horton, Inc. [pdf], the NLRB held that an arbitration agreement violated the National Labor Relations Act’s protections for employee concerted activity. The facts are pretty straight-forward. The employer required all of its employees, as a condition of their employment, to sign a master arbitration agreement, under which they agreed:

• to submit all disputes and claims relating to their employment to final and binding arbitration;
• that the arbitrator “may hear only … individual claims,” “will not have the authority to consolidate the claims of other employees,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding”; and
• to waive “the right to file a lawsuit or other civil proceeding relating to … employment with the Company” and “the right to resolve employment-related disputes in a proceeding before a judge or jury.”

The NLRB concluded that the agreement “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection,” and held that the employer “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”

A few key points to make about this case:

1. This case continues the trend (as we’ve seen in the social media cases—more on this tomorrow) of the NLRB pursuing protected, concerted activity cases in non-union workplaces.
2. The NLRB did not concluded that all class action arbitration agreements are invalid, but merely those that leave employees without a collective remedy. An arbitration agreement, for example, that permits for a judicial filing would still be lawful. (But, then again, wouldn’t that fall-back nullify any benefit to be gained from the arbitration agreement in the first place?)
3. This decision likely is not the last we will hear on this issue. This case is almost certainly headed to the 11th Circuit Court of Appeals. Depending on that result, it will be curious to see if the Supreme Court picks up the ball to reconcile this case with AT&T Mobility. Until then, employers should tread carefully in trying to implement or enforce class action arbitration agreements.

WIRTW #207 (the “world tour” edition)

Okay, so it’s not really a world tour, but I do have a bunch of speaking engagements coming up in the next few weeks, all but one of which you can join.

• At 2 pm this afternoon, you can call in and speak to me live on the special 100th installment of Stephanie Thomas’s Proactive Employer Podcast. I’ll be appearing along with fellow employment law bloggers Dan Schwartz and Phil Miles. If you want to participate, the call-in number is (347) 945-5651, or you can tweet your question using the hashtag #TPE100. You will be able to listen live here.
• On January 11, I will be presenting the inaugural webinar in the Ohio Chamber of Commerce’s HR Academy, entitled Think Before You Click: Strategies for Managing Social Media in the Workplace. The live webinar runs from 10 – 11:30 am.
• On January 18, I will be leading a session on how-to blog for the Ohio Women’s Bar Association Leadership Institute.
• On February 9, I am presenting Lawyers, Booze and Money: Social Media Compliance for Regulated Industries, at the Social Media Strategies Summit in Las Vegas.
• On February 21, I will be part of a webinar panel entitled Understanding Unions, NLRB, and Social Media. The panel will be part of a webinar series run by Jessica Miller-Merrell on her blog, Blogging4Jobs. More info to follow.
• Also, last month I recorded an episode of the Fistful of Talent Podcast (the CYA Report, with co-host Dawn Burke and Kris Dunn) discussing current issues with the NLRB. You can download the podcast here.

The blogosphere never sleeps, even over the holidays. It’s been a busy couple of weeks. Let’s get to it.

Here’s what I read this week (and last week):

Discrimination

• The EEOC’s wish list for reasonable accommodations – from Sindy Warren’s Warren & Hays Employment Law Blog
• Going on offense—responding to a potential ADA suit – from John Holmquist’s Michigan Employment Law Connection
• Breast-Feeding Avengers – from Eve Tahmincioglu’s CareerDiva
• A Get Over It Guide to Transgender in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs

Social Media & Workplace Technology

• Poetic Justice - 2011 Wrap Up – from Social Media Employment Law Blog
• Top Ten 2012 Social Media Resolutions Every Organization Should Have – from Social Axcess
• Are employees’ LinkedIn contacts considered your trade secrets? and Who owns the LinkedIn account you maintain for an employee? – from Eric Meyer’s The Employer Handbook Blog
• Do Your Social Media Accounts Belong To Your Business? Why Worry, When There Are Safeguards You Can Take Now – from Social Media Law Update
• Why Owning Your Employee’s Twitter Account is Foolish – from Social Media Today
• My Interview with @noahkravitz (Noah Kravitz) - How Much is a Twitter Follower Worth? – from Social Media for Law Firms
• SEC issues investor alerts highlighting the perils of social media – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Avoiding the Dangers of Social Media Background Checks – from i-Sight Investigation Software Blog
• Twitter, Anonymous, Occupy Wall Street, the First Amendment, and the Suffolk County district attorney – from The Verge

HR & Employee Relations

• Setting Precedents: What You Have Done Before Does Count – from Mike Haberman’s Omega HR Solutions
• Employment law leftovers: Best of 2011, what's up for 2012, and resolutions – from Robin Shea’s Employment and Labor Insider
• Things I Believe In – from The ChamberPost
• Sex Sells—And It’s A Trade Secret – from Fair Competition Law
• Employee Bathroom Surveillance Camera, Although Faulty, Could Be Invasion of Privacy – from Workplace Fairness
• Why You Really Shouldn’t Curse at Work (Much) – from Harvard Business Review
• Losing Your Driver’s License Can Impact Your Career – from hr bartender
• Workplace Rudeness Has a Ripple Effect – from Scientific American
• Ohio Court: Client List Was Not a Trade Secret – from The Personnel Files
• What Employers and Employees Should Understand About Conducting Background Checks from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Does Lady Gaga Owe Assistant OT? – from Wage & Hour Insights
• Lady Gaga’s Personal Assistant Sues for Overtime: “At Her Side” 24/7 – from Wage and Hour Law Update
• Get a Fresh Start on Misclassification in 2012 – from Stephanie Thomas at Compensation Cafe
• Can my company force me to take health insurance? – from Evil HR Lady, Suzanne Lucas
• Employee Not Owed Reporting Time or Split Shift Pay for Scheduled Meetings – from Wage & Hour Counsel
• The DOL’s FMLA Forms Expired on December 31, 2011. Should Employers Still Use Them? – from FMLA Insights
• Invalid FMLA certification can form the basis of employment termination – from Employment Law Matters

Labor Relations

• Just In: Obama Taps Three for NLRB Vacancies – from Phil Miles’s Lawffice Space
• President Obama Announces Three Recess Appointments to NLRB Despite Senate in Pro Forma Session and More on President Obama’s “Recess” Appointments to the NLRB – from Seth Borden’s Labor Relations Today
• NLRB’s New “Vote Now, Litigate Later” Union Election Rules To Become Effective April 2012 – from World of Work
• When is a Supervisor Not a Supervisor? The NLRB Finds No Proof of Supervisory Authority – from Vorys on Labor

Disability discrimination law in Ohio is a mess

Let’s start with the obvious: it is illegal in Ohio for an employer to discriminate against an employee because of the employee’s disability. It is not always easy to figure out who this proscription covers, because Ohio’s statute (R.C. 4112) and the federal statute (the ADA) have their own respective definitions of what is a disability, which vary slightly:

     Ohio Law:

“Disability” means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.

     Federal Law:

The term “disability” means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

Before Congress amended the ADA in 2009, there existed another key difference between its and Ohio’s respective definitions of “disability.” To be “regarded as” disabled under Ohio law, one has to be “regarded as having a physical or mental impairment.” Under the pre-ADAAA ADA, to be “regarded as” disabled, one had to be perceived as having an impairment that substantially limits one or more major life activities. By adding the “substantially limits” language, the federal definition was more restrictive.

Until recently, and despite these differences, Ohio law has almost always looked to federal law in interpreting its state disability discrimination statute. Last month, however, the rules changed. In Scalia v. Aldi, Inc. (12/21/11) [pdf] (discussed yesterday), one Ohio appellate court said the following:

Because the plain language of the definition of disability contained in R.C. 4112.01 differs in substance from the ADA, it is not appropriate to look to federal materials interpreting the pre-2008 ADA with respect to perceived disability claims under Ohio law.

The key language in that quote is “pre-2008 ADA.” The ADAAA amended the definition of “regarded as” disability. Under the amended ADA, it is now irrelevant whether the actual or perceived physical or mental condition substantially limits a major life activity:

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Thus, as the court pointed out in Scalia v. Aldi, Ohio law and federal law now match on this issue. Because Aldi terminated Scalia before Congress amended the ADA, the court applied the pre-amendment version of the statute, and left open the question of whether Ohio courts should look to federal caselaw interpreting the amended federal statute.

What does all this mean for Ohio employers? Disability discrimination law is a mess. Until the General Assembly passes legislation clarifying whether interpretations of “disability” under R.C. 4112 are supposed to mirror the ADA, companies doing business in Ohio would be best served following the most expansive interpretation of the definition of disability possible under either statute.

Resolve this year to properly handle no-fault attendance policies

For the uninitiated, a no-fault attendance policy terminates an employee who accumulates a pre-designated number of absences, regardless of the reason. For employers with high-volume, high-turnover operations, these policies make a lot of sense as the best tool to manage employee attendance. They are not, however, without their risk. For example, no-fault attendance policies cannot penalize absences that fall under the protective umbrella of statutes such as the FMLA or the ADA. As some employers have discovered, disciplining or firing disabled employees under a no-fault policy can be a costly error.

What about employees on leave for a workers’ comp injury? Can an employer count those absence under a no-fault policy? According to one recent Ohio appellate decision—Scalia v. Aldi, Inc. (12/21/11) [pdf]—the answer is a decided maybe. The court concluded that it is not per se retaliatory for an employer to terminate an employee on workers compensation leave pursuant to a facially neutral attendance policy. The court remanded the case back to the trial court to consider the issue of whether the employer—through the application of its attendance policy— terminated the plaintiff retaliation for instituting, pursuing, or testifying in a workers’ compensation proceeding.

What does this mean? This means that the plaintiff cannot rely solely on the attendance policy to prove retaliation, but must prove that the employer’s reliance on the attendance policy was a pretext for retaliation. A uniformly applied attendance policy will go a long way to disproving this pretext. As mentioned above, however, employers cannot apply attendance policies to penalize employees on leave for FMLA or ADA reasons. Will this lack of uniformity hurt employers in defending against workers’ comp retaliation cases? Or, can an employer lawfully treat FMLA-related and ADA-related absences differently than workers’ comp-related absences. Another court will have to answer these questions in another case. As this case illustrates, employers must tread very carefully when disciplining or terminating an employee who is absent from work because of work-related injury.

Does India have sex discrimination laws?

I have no idea if India has workplace sex discrimination laws. The following classified ad would suggest not:



Does anyone know if this is legal in India? Do I need to tell you that it is the absolute opposite of a best practice to list a position as one for a “Lady Computer Operator … preferably married”?

[Hat tip: my wife]

Did anyone resolve to be less connected in 2012?

Available at http://www.gocomics.com/nonsequitur/2011/12/26

Happy New Year!

Best of 2011: Numbers 2 and 1

   2.  “If I could press a button and instantly vaporize one sector of employment law?”

My answer—the Fair Labor Standards Act. The FLSA needs to go because compliance is impossible…. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

   1. The Employer’s Bill of Rights

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…. 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’s Bill of Rights.

Best of 2011: Numbers 4 and 3

   4. Charlie Sheen and the National Labor Relations Board

CBS fired Charlie Sheen, in part because he made public disparaging comments about his boss. Charlie Sheen is a member of SAG. He also has his own “performance” problems. Should he file an unfair labor practice charge with the NLRB, based on his own protected, concerted activity—for example, calling his boss a “stupid, stupid little man and a pussy punk”; a “piece of  shit”; a “turd”; and a “clown”?

   3. NLRB says a “f**ktard” is different than a “d*ck” under Section 7

In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities?

Best of 2011: Numbers 6 and 5

   6. EEOC sues for disabled shoplifter

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first.

   5. The most important thing you need to know about the ADAAA’s regulations

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Best of 2011: Numbers 8 and 7

   8. What does St. Patrick have to do with human resources?

Legend tells us that in the 5th century, St. Patrick banished all snakes from Ireland. In honor of the day that celebrates Ireland’s patron saint, consider banishing the following metaphorical snakes from your HR practices.

   7. How do other cultures handle HR?

Monsters, Inc., holds a special place in my heart. It was the first movie my wife and I saw together. As an employment lawyer, then, the following sign at the Mike & Sully meet and greet at Disney’s Hollywood Studios struck exactly the right note…. Interestingly, the last bullet point shows that even Monstropolis sees the importance of covering social media in workplace policies.