When Coyote Posts Get Ugly (My latest column in Workforce magazine)

Each month I write a featured column in Workforce magazine. This month, my column focuses on the risks businesses take when then take to social media to comment on pending litigation and the employees who’ve filed. The article—”When Coyote Posts Get Ugly”—is available here.

A hypnotic tale about choice of law and non-compete agreements

Choice of law is one of the most important, and, often, most ignored decisions you can making in drafting a non-competition agreement. Lifestyle Improvement Centers, LLC v. East Bay Health, LLC (S.D. Ohio 10/7/13), illustrates how the choice of which state’s law will govern the contact can govern the enforceability of the restrictive covenant.

Patrick Porter owned Positive Changes Hypnosis Centers, a successful hypnosis-therapy center, which included a network of franchises. In 2003, Porter sold the business to an Ohio-based company, Lifestyle Improvement Centers. Years later, while running a competing California-based self-improvement company called East Bay Health, Lifestyle reached out to the Porters for help with a struggling Positive Changes franchise in California. Ultimately, the Porters acquired the struggling Positive Changes franchise from Lifestyle. The Porters’ company, East Bay, entered both a franchise agreement and a non-compete agreement with Lifestyle.

The Porters spent a year trying to turn around the Positive Changes franchise location, ultimately concluding it was a lost cause. The Porters shut down the franchise and converted it into The Smart Body Institute, operated through their East Bay Health company. When the Smart Body Institute entered the hypnotherapy business, Lifestyle sued under the non-compete agreement, which stated that Ohio law governed the parties’ relationship.

The Porters and East Bay argued that because California law forbids non-compete agreements, it violates the law and public policy of the state in which their business is located to enforce a non-compete agreement under a competing state’s law. The Ohio federal court hearing the dispute agreed, concluding that despite the Ohio choice of law provision, California law applied. Thus, an Ohio company, with an Ohio choice of law contract, in an Ohio court, could not enforce its non-compete agreement.

In this case, the court ignored the parties’ choice of law because of the strength of the public policy of the state in which the competing business was located. Yet, this case illustrates a larger point. Choice of law can be outcome determinative in non-compete cases. Because state law governs the enforceability of non-compete agreements, there are 50 different possible sets of rules for your contract. The set that you choose could determine your case. For example, Ohio enforces non-compete agreements based on their overall reasonableness. California, on the other hand, has decided that its public policy renders most non-compete agreements per se unenforceable. Do not ignore the selection of the controlling law in your non-competition agreements. Otherwise, you could be missing a golden opportunity to dictate the terms of the agreement’s interpretation, and, ultimately, its enforceability.

Riffing on the right way to do workforce reductions

Anthony Rachells was a top performer at Cingular Wireless. As a National Retail Account Executive in Cingular’s Cleveland region, he received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003 earned the top performance review among his peers. Yet, when AT&T acquired Cingular in 2004, and eliminated five of the nine employees in Rachells’s position. Rachells received the lowest 2004 performance review score of any candidate, ranked seventh in the overall selection process, and was terminated.

Rachells—who was the only African-American National Retail Account Executive—sued, claiming that his manager (who other testified had a history of discriminating against minorities) included him in the workforce reduction because of his race.

Last week, in Rachells v. Cingular Wireless Employee Services [pdf], the 6th Circuit concluded that it should be up to a jury to determine whether the decision-making manager singled out Rachells because of his race.

Here, among the Cingular candidates, Rachells was the only person of color and the only individual discharged in the RIF. Given this small sample size of the Cingular candidates, however, this is not sufficient to conclude that Cingular’s actions were racially motivated…. The district court erred in dismissing two other crucial categories of evidence tending to show race-based discrimination: evidence of Rachells’ superior qualifications and evidence of a discriminatory atmosphere at Cingular….

Here are three factors to think about when using subjective criteria (such as rankings) when deciding on who to include in a RIF:

1. Comparability. What do your workforce demographics look like before and after the RIF, company wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria. In this case, Cingular’s RIF failed the smell test by including the only African-American account executive.

2. Consistency. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm. In this case, it was not a stretch for the court to conclude that the manager rigged the ranking to single out Rachells.

3. Honesty. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Do the objective criteria (sales numbers, for example) contradict the subjective evaluation? In this case, Cingular’s RIF failed because the objective criteria (sales figures, awards, and prior performance reviews) did not match the subjective ranking prepared solely for purposes of the RIF.

RIFs, done correctly, provide employers wide protections from allegations of discrimination. Done poorly, however, RIFs open employer to widespread claims of discrimination that can prove more difficult to defend than the savings the employer hoped to realize from the layoffs.

WIRTW #293 (the “interview from hell” edition)

Is this the worst (fake) job interview ever?

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

Discrimination

• Fortune on the EEOC’s legal war against employers — from Walter Olson’s Overlawyered
• Is Being Dead a Disability? — from California Employment Law
• An employer is not required to change supervisors as an ADA accommodation — from Eric Meyer’s The Employer Handbook Blog
• SCOTUS Dismisses Constitutional Age Discrimination Case — from Phil Miles’s Lawffice Space
• Where’s the Beef? Employer Defeats EEOC’s Religious Discrimination Pattern Or Practice Case By Establishing Undue Hardship Defense — from Workplace Class Action Litigation
• United States Supreme Court Asks Government to Weigh in on Accommodations for Pregnant Employees — from Trade Secret / Noncompete Blog
• Unpaid interns and sexual harassment -- how much do you know? — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Court Finds Duty to Preserve Personal Emails of Employees — from Molly DiBianca’s Delaware Employment Law Blog
• Blurred Lines: Social Media and Confidentiality in Workplace Investigations — from Employment Law Lookout
• Tweet Ye, Tweet Ye: It’s OK to Promote Your Workers on Social Media — from Whatever Works

HR & Employee Relations

• Are You An Employee Friendly Company? — from The Tim Sackett Project
• Fat Jokes Can Turn Out to Be a Costly Workplace Problem — from TLNT
• Employment Law Differences for Non-Profit Employers — from Minnesota Employer
• Counting to Seven: The 7 Year Rule for Reporting Adverse Information on a Background Check — from employeescreenIQ Blog

Wage & Hour

• Pro-employee 5th Circuit? Four keys to recent FMLA retaliation decision — from Work Matters
• Holy Smokes! Employee's Minister Uncovers Her FMLA Abuse, Leads to Her Termination — from FMLA Insights
• Federal Court Denies Class Certification, Preemptively Denies FLSA Collective Action – Class Members’ Experiences Too Varied — from Currents: Hot Topics in Employment Law
• Did Amazon Violate Overtime Pay Requirements By Not Paying Warehouse Employees For Required Screenings? — from Overtime Lawyer Blog

Smoking out the law on e-cigarettes in the workplace

29 states, plus the District of Columbia, have laws prohibiting anyone from smoking in the workplace. Like similar bans in other states, Ohio’s statewide workplace ban applies to “smoking,” which means “inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant.”

Electronic cigarettes do not burn tobacco. Instead, they use a heating element to vaporize a liquid solution that includes a concentration of nicotine. Because these vaporizing devices do not contain tobacco, they are not prohibited by workplace smoking laws.

According to the Zanesville Times Recorder, e-cigarettes will be coming to your workplace, and will test the limit of your anti-smoking policy:

As vaporing becomes more prevalent, it’s quickly evolving into a controversial workplace issue. Employers will be faced with the challenge of contemplating the pros and cons of e-cigarettes for their workplaces and will need to consider adapting a policy that reflects their position

Proponents of e-cigarettes in the workplace argue that there exists no proof of any associated health risks, and that they improve employee productivity by eliminating the need of smoke breaks during the workday.

Opponents argue that these devices contain nicotine and detectable levels of known carcinogens and toxic chemicals, and that prohibiting their use in the workplace eliminates the risk of any complaints from nonsmoking co-workers, customers or others annoyed by the vapors.

There are no laws requiring that you allow e-cigarettes in your workplace. Laws that prohibit smoking in the workplace are a floor, not a ceiling. You are free to ban these devices in your workplace, and should consider doing so.

Companies should review their smoke-free workplace policies specifically to prohibit e-cigarettes, and consider including employees that use e-cigarettes as “smokers” for purposes of any wellness or smoking-cessation initiatives.

This post originally appeared on The Legal Workplace Blog.

The devil went down to the EEOC… A story on religious accommodation

Halloween is almost upon us, which mean that it’s only appropriate to discuss one of the EEOC’s last actions before the government shutdown—the filing of a lawsuit against two Pennsylvania energy companies for failing to accommodate an employee’s religiously based fear of using the newly installed time and attendance biometric hand scanners. From the EEOC’s press release:

Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

The mining companies refused to consider alternate means of tracking Butcher’s time and attendance, such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers. The EEOC charges that Butcher was forced to retire because the companies refused to provide an accommodation to his religious beliefs.  

According to the EEOC lawyer litigating this case, “In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs. Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.”

Before you dismiss an employee’s request for a religious accommodation as silly or outrageous, stop, think, and decide whether the expense or difficultly in making the accommodating exceeds the cost and aggravation of defending a possible discrimination lawsuit. The answer to that equation, should, more often than not, guide your decision.

For more on this issue, I recommend pages 229 – 230 of my latest book, The Employer Bill of Rights, where I discuss a former co-worker of mine who believed that Lee Iacocca saved Chrysler by making a pact with the devil, and how the company for which we worked accommodated his beliefs (true story).

Can George Costanza sue for sexual harassment or retaliation?

In an episode of Seinfeld, George Costanza lost his job after the cleaning woman, with whom he had sex on his desk in his office after hours, ratted him out to management.

Could he have sued for sexual harassment? According to Stevens v. Saint Elizabeth Med. Ctr. (6th Cir. 8/29/13), the answer is no.

Caroline Stevens, worked as the personal assistant to defendant Dr. Donald Saelinger, the Chief Executive Officer of Patient First, which was later acquired by Saint Elizabeth Medical Center. After the hospital discovered a recently ended a consensual relationship between the two (which included after-hours sex in the office ), it offered both the option of resignation or termination. Stevens refused to resign, yada yada yada, and was fired.

The 6th Circuit affirmed the dismissal of both her sexual harassment claim (premised on some post-break-up love notes and other protestations of continued affection at the office) and her retaliation claim (premised on her termination after she had written a letter to Saelinger stating a desire to do her job in a non-threatening environment).

There is nothing wrong with employees dating. Nothing good, however, comes from a boss having relations with a subordinate employee, especially one who is a direct report. No matter your corporate position on employee romance, it’s probably best to prohibit managers and supervisors from dating (etc.) their direct reports. Untangling relationships is complicated enough. You do not need to complicate it more by engaging the possibility (and the resulting legal risk) of an employee reporting to an ex.

As for George’s possible legal claims, it’s no soup for you.

The case regarding intern harassment

By now, you’ve probably read about Wang v. Phoenix Satellite Television (S.D.N.Y. 10/3/13) [pdf], the New York federal court case dismissing, under New York City’s employment discrimination law, a sexual harassment claim brought by an unpaid intern. The decision, which held that an unpaid intern cannot bring a harassment claim because she is not an “employee”, has been panned as a crime against workers.

Let me assure you, this decision is 100 percent legally correct. Under Title VII, interns are not employees. Therefore, they have no legal right under the civil rights laws to assert harassment claims.

Critics of this decision argue that it leaves interns unprotected from harassment. Yet, there are three reasons why this decision doesn’t have nearly as big an impact as some would like you to believe.

1. Unpaid interns are a dying breed. The DOL has made a full-court press against the unpaid intern. Gone are days when a company can take on an unpaid intern as a de facto trainee. Entry-level employees, whether called interns, trainees, or something else, are employees that must be paid. The only interns that remain for a company to use as unpaid labor without risking an FLSA violation are those that are placed with a company for school credit. 

2. Bona fide unpaid interns—those working through an educational institution—are not without redress. They can complain to their sponsoring educational institution, which risks Title IX liability if it ignores the complaint. The school should take the complaint seriously, investigate, go to bat for the intern, or pull the intern out of that placement and find a substitute replacement internship, all without penalty to the student.

3. Harassed interns also have other remedies against the business—they can sue for intentional infliction of emotional distress, assault, or other common law torts. 

Harassment is a serious issue, which all employers should take seriously. The reality, however, is that bona fide interns are not employees. They never have been, and, absent a radical change in the law, they will not be in the future. To call for changes to five decades of law under Title VII for a small subset of individuals who have remedies elsewhere, however, misses the legal and practical realities of this issue.

WIRTW #292 (the “hot pockets” edition)

Are you looking for some fresh idea on how to spruce up your management style? Look no further than these four tips from corporate-guru Jim Gaffigan:

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

Discrimination  

• Why Age Discrimination Should Matter to You — from HR Examiner with John Sumser
• Hijab accommodation: Will Abercrombie's victory stand? — from Robin Shea’s Employment & Labor Insider
• ‘T*ts Or GTFO’ Now A Legitimate Requirement For Unpaid Interns — from Abovethelaw.com
• It’s Not Just A Speed Bump: The EEOC Loses Another Battle In Its War On The Mandatory Conciliation Process — from Workplace Class Action Litigation
• Employee—a grown man for God’s sake—claims he was fired for being a brony — from Eric Meyer’s The Employer Handbook Blog
• The Situation of Ageism — from The Situationist
• Woman is Fired for Being Old and Ugly – A Win for the EEOC — from Workplace Insights
• Future Friday: The Disability of the Future Workplace? — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Snap(chat), Kik & Whisper: What Social Networking Apps Your Employees Are Using Today — from Dan Schwartz’s Connecticut Employment Law Blog
• Boss Hacks Personal Email Account of Employee. Emotional Distress Follows. — from Molly DiBianca’s Delaware Employment Law Blog
• How Social Media Could Soon Change Performance Reviews — from Workplace Diva  
• Keeping it simple : 5 word law firm social media policy — from Real Lawyers Have Blogs
• BYODOMG! Your Kids Are Taking Over Your Work Phone — from Workplace Diva
• Employment Law IQ: Hiring Decisions Based on Social Media Postings — from Southwest Florida HR Law & Solutions

HR & Employee Relations

• Employer knew of Navy Yard shooter’s mental instability — from Walter Olson’s Overlawyered
• Indemnification Clauses: Think about it now or regret it later — from Ohio Real Estate Blog
• Making Terminations a Little Less Difficult — from Blogging4Jobs
• Firing of USC football coach not a model for employer handbook — from Employment Intelligence
• Generation X — Has Our Day Finally Come? — from TLNT
• Long Live the Reference Check — from Inc.
• My Employer Filed Bankruptcy. Does That Mean They Can’t Enforce My Noncompete? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• The Best Startup Perk? A 40-Hour Week — from Bloomberg Businessweek
• Supreme Court Declines to Review Nurse's Claim of Off-the-Clock Work In Contravention of Policy — from Wage and Hour Law Update
• The Other Area 51? Court Holds 51 Job Titles, Even In Same Area, Are Too Alien From Another For Class Treatment — from The Wage and Hour Litigation Blog
• When An Employee Is On FMLA Leave, How Much Contact Is Too Much? — from Laconic Law Blog

Labor Relations

• SCOTUS 2013-14 Labor Law Preview — from Phil Miles’s Lawffice Space
• BREAKING NEWS: Obama Says All Striking Union Members Should Be Fired — from LaborPains.org

Until next week… Hot pockets…

How to handle the malingering FMLA abuser

Let’s say you have an employee who claims to be suffering from a chronic back injury. He even has doctor’s notes certifying that his back pain impairs his “ability to lift, to carry heavy objects, to bend repeatedly, or actually bend at the waist.” So, you grant the employee intermittent leave under the FMLA, which the employee uses several times each month. But, you start to notice a pattern. The employee’s FMLA-protected days off always seem to bookend weekends and holidays. As a result, HR initiates an investigation, which includes surveillance of the employee. That surveillance uncovers that while the employee is home supposedly resting his painful back, he is actually going out for coffee, shopping, and working in his garage repeatedly bending down, lifting pieces of wood, and carrying them into his house. When confronted, the employee suggests that “‘maybe’ his doctor had given him a shot of Cortisone earlier in the day.” Unimpressed, the employer ultimately terminates the employee for “fraudulent or illegal conduct.”

In Tillman v. Ohio Bell Tel. Co. [pdf], the 6th Circuit affirmed the trial court’s dismissal of the employee’s FMLA retaliation and interference claims. The court concluded that Tillman could not pursue his retaliation claim because the company “held an honest belief that Tillman had abused his FMLA leave and violated the company Code of Business Conduct,” and could not pursue his interference claim because, whether or not the “honest belief rule” applies to interference claims, Tillman was not entitled to FMLA leave on days on which he was not actually suffering from a serious health condition.

This case is a great lesson for employers on how to build a case to support a termination decision. If you believe that an employee is abusing FMLA leave, build your case. Uncover enough facts to support your belief that that employee is committing fraud and otherwise not entitled to leave. Armed with that evidence, a court is unlikely to overturn your decision. While it may cost you a little extra up front in investigatory costs, you will save money on the backend both in litigation costs and future abuses by employees deterred from malingering.

It’s time to end sexual orientation & gender identity discrimination

There is currently legislation pending in both the Ohio House [H.B. 163] and Ohio Senate [S.B. 125] that would include “sexual orientation” and “gender identity” to the list of classes from which employees are protected from discrimination by their employers. Notably, the bills protect both actual and perceived sexuality and gender-related appearance:

• “Sexual orientation” = “actual or perceived heterosexuality, homosexuality, or bisexuality.”
• “Gender identity” = “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated gender at birth.”

If Ohio Revised Code chapter 4112 is amended to include these protections, then harassment of employees based on their actual or perceived sexual orientation and gender identity become illegal. In that case, the line-splitting in which courts have engaged under the rubric of “same-sex harassment” will largely become a relic.

Case in point? EEOC v. Boh Brothers Construction Co. (5th Cir. 9/30/13). The facts of this case are horrific. It’s worth a read to understand just how cruel employees can be to each other. Yet, the case split 10-6 on whether the facts supported claim of sexual harassment. One of the two dissents envisioned a world in which employers would have to distribute “etiquette memos” to purge the workplace of speech and gestures that might be viewed in any way as tokens of sex discrimination. I’ve reprinted the court’s very tongue-in-cheek example below.

The dissent is exaggerating to make its point that Title VII was never meant to be a general civility code, and only the worst type of sex-based behavior is meant to trigger the statute.

Exaggerations aside, the time has come for Congress (when the federal government is back in business), along with all 50 state legislatures, to step up to the plate and end this debate. Enact legislation including sexual orientation and gender identity as protected classes, and bring to and end the shameful protection of discrimination against this marginalized class of individuals.

---

ETIQUETTE FOR IRONWORKERS

MEMO TO: Management FROM: Legal Department of Apex Co. DATE: September 2013

In keeping up with the newest developments in employment law, we have carefully reviewed and hired specialist outside counsel to give us a legal opinion concerning the implications of a recent Fifth Circuit en banc decision. EEOC v. Boh Bros. . . . Like us, the employer in that case engaged in heavy construction and often operated in all-male crews. Like us, it had an unblemished record, years without a Title VII case. But the court ruled that common sexual epithets and vulgar gestures, when used too frequently by a male, heterosexual supervisor, can support a verdict against the company on behalf of another male, heterosexual plaintiff. Instead of looking on these actions as horseplay or, at worst, bullying, the court approved a jury verdict for “gender-stereotyping harassment.” The EEOC intends to make this case an example for similar workplaces.

We need not advise you of the costs a company can incur in these cases. In addition to hundreds of thousands in outside legal fees, a judgment for damages may run into six figures. The EEOC requested, and got, a sweeping and intrusive injunction that will require significant expenditures in paperwork compliance costs and regular workplace sensitivity training for over one thousand employees.

To avert these consequences, we recommend that the company immediately issue the following rules for proper, non-gender-stereotyping workplace behavior. Employees should be informed that the rules apply across the board, to all-male, all-female, and mixed-sex offices and positions. The workplace must be cleansed of speech and actions that may be misperceived or twisted as reflecting gender stereotyping harassment.

NOTICE CONCERNING TITLE VII

To our Associates:

You are all aware of this company’s unwavering policy to prevent discrimination of any kind based on sex, race, religion or national origin. Because of a new court decision, we must now focus on eliminating same-sex “gender stereotyping” of any kind as well. This means that men may expose this company to liability for their speech and behavior in the presence of other men, and women in the presence of other women. Although these rules will apply throughout the company, you IRONWORKERS have to take special notice. The rules apply throughout the workday, during breaks and lunch hours, and whenever two or more workers are gathered together.

1. At the most general level, all employees must refrain from any communication—spoken, written, or gesticulated—that may create any suggestion of “sexual stereotyping” or “gender-based bullying.” Please consider the broad implications of this prohibition, some of which follow. All employee interactions must be fully gender inclusive (or at least gender ambiguous). Careless phrases and jokes will not be tolerated if they may be interpreted to carry a stereotyping overtone.

2. No more banter about bodily functions, sexual or otherwise, or human physical appearance. Those who do not enjoy references to sweat, toilet humor, tattoos, tight jeans, muscles, or large beards may feel singled out as not “man enough” for such speech.

3. Do not discuss the appearance of women or any intimate sexual encounters, and do not refer to or use words that refer to sex in any way. This includes CUSS WORDS.

4. Do not swivel your hips, make obscene gestures or mimic “twerking.”

5. Avoid discussing topics that may be viewed as “non-inclusive”: bodybuilding, Boy Scouts, hunting, fishing, and riflery. Football and other “macho” sports may be an unwelcome subject to those who consider them boorishly aggressive.

6. Do not engage in any competitive activity, like lifting heavy objects, on the worksite. This can create a sense of unmanly inferiority for non-participants.

7. Do not use gender-stereotyped nicknames or name-calling. Supervisors may not encourage you to work harder by saying “put your backs into it,” or “man up,” and terms like “ladies” or “sissies” will be grounds for immediate discipline.

8. Schoolyard humor, which is common at our jobsites to fill down-times and relieve boredom, raises sensitive issues. Some workers may be put off by jokes about personal grooming, scented deodorant, chest hair, or clothing as a form of gender hostility. Poking fun at a worker for drinking a diet soda, not being able to eat a raw jalapeno, using “Wet Ones” or “Purell” to clean himself, or calling someone a “wimp” or “wuss” or “geek” may get us sued and you in serious trouble.

9. Asinine locker room behavior is forbidden. Examples of this would be comments about anatomy, crude gestures, actions like towel-swatting, simulated sexual acts, and any behavior that would make someone ill at ease with his personal expression of his gender. Relieving yourself in the presence of others is forbidden; the company is reconfiguring all restrooms to prevent any worker from observing another worker’s bodily functions.

10. Avoid touching any coworker in any manner, except if asked to rescue the person from physical danger, and even then, avoid touching private areas.

PENALTIES: A first violation of these rules will result in a warning, a second violation in suspension without pay, and successive violations will result in termination. We will not call this a “three-strikes” policy, as that term might be interpreted to refer to the principally male sport of baseball. We need hardly explain that any worker terminated for same-sex gender stereotyping will have a hard time finding future employment.

The Company will conduct quarterly sensitivity sessions, where you can learn more about offensive gender stereotyping against fellow males and what you can do to prevent or correct it. As questions arise at any time, call our newly hired Sex Stereotype Counselor in the HR Department.

---

751,942 (and a half) marks against the EEOC in background check litigation

It’s no secret that criminal background checks rank highly on the EEOC’s hit list. The EEOC has taken the position that a policy that per se eliminates someone with a criminal history from consideration for employment violates Title VII as having a disparate impact based on race. And, the EEOC is aggressively litigating so that courts will bless its non-binding enforcement guidance on this topic and make it law.

What happens, however, when the EEOC litigates this point despite proof that an employer does not have a policy of rejecting felony applicants? A court of appeals affirms a three-quarters of a million dollar attorneys’ fees judgment against the agency and in favor of the employer against whom it unreasonably litigated. That is exactly what the 6th Circuit did yesterday in EEOC v. Peoplemark, Inc. [pdf].

The district court did not abuse its discretion when it found that the Commission could not prove its case as pleaded…. As is required, the Commission pleaded a specific employment practice—a companywide policy of denying employment opportunities to felons. That policy did not exist, and the claim the Commission pleaded could not be proved….

We are not focused on the Commission’s theory of the case, but rather, whether the claim was frivolous, unreasonable, or groundless, or whether the Commission continued to litigate after it clearly became so. As the Commission admits in its brief, it “pled a blanket policy.” The only employment practice it pleaded—and as a direct result, the only claim it pleaded—could not be proved.

We are currently ensnarled in a ugly budget fight that has shuttered our federal government. Perhaps one solution to this crisis is for Congress to engage in some simple oversight over the agencies that enforce our various laws, including the EEOC. $751,942.48 in taxpayer money is a costly investment to chase a fools’ errand.

Fired for posing for Playboy? Or, how does an employer prove a negative?

Jessica Zelinske, a 33-year-old Minnesota mom, is suing her former employer after it fired her for appearing in Playboy’s 2011 “Hot Housewives” issue. 

According to her lawsuit, she claims that before posing nude, she spoke with her boss at Charter Communications, Timothy McBain, who Zelinske says told her she would not risk her job if she posed nude. Weeks after the magazine’s publication, however, McBeain handed her a “Corrective Action Report,” notifying her of her termination for violating the company’s “standards of common decency.” The notice went on to say: “You have violated Charter’s professional conduct policy by making the personal choice to pose nude in a well-known publication.” The company claims that Zelinske never told anyone that she wanted to pose nude in Playboy, let alone ask for permission.

Zelinske’s main claim in her lawsuit is for promissory estoppel—that the company made her promise about job security, upon which she relied to her detriment by posing for Playboy. To defend this claim, the employer is in a very difficult position—having to prove a negative. The employee claims she had meeting where her boss blessed her photo shoot, and may even have notes (legitimate or not) to support her claim; the employer claims that no meeting ever took place, and certainly will not have any notes or other evidence to support an event that it claims never happened. How does an employer prove that it never made such a promise to an employee? Sadly for this employer, the answer may be a costly and time consuming jury trial. 

Proving a negative—that conversation never took place, or, you did not work those extra hours that your timesheet says you did—is the most difficult position for an employer, and, often, the most expensive for an employer to defend.

WIRTW #291 (the “if you can’t beat ‘em…” edition)

At The Employer Handbook Blog, Eric Meyer is polling his readers with the question, “Would you hire this employee?”

The employee in question, Marina Shifrin, posted this video on her YouTube page (11+ million hits to date) announcing that she quit her job.

Embracing the maxim that there are two sides to every story, the employer, Next Media Animation, posted a video of its own (with a respectible 2.2 million hits) announcing that it’s hiring (h/t Mashable).

Touché.

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

Discrimination

• The EEOC Continues Fight To “Shut Down” Judicial Review Of Conciliation Process — from EEOC Year-End Countdown
• Time’s Up, Pencils Down: EEOC Final Fiscal Year End Filing Totals Provide Surprises and Insight — from Employment Law Lookout
• EEOC’s Conciliation Efforts Shortchanges 5,000+ Employees Annually — from WinWinHR
• EEOC Responds to Criticism of its Position on Background Checks — from Minnesota Employment Law Report
• The Death of the Jury Trial in Federal Court — from Texas Employment Law Blog
• The UNEMPLOYED – A Protected Category Coming To a Jurisdiction Near You — from The Labor Dish
• Watch Out! Anti-Retaliation Laws May Protect Act Against Ex-Employees Too — from The Emplawyerologist
• U.S. Supreme Court to Kick Off New Term With Age Discrimination Issue — from Currents: Hot Topics in Employment Law
• “Voluntary” wellness programs—seeking answers from the EEOC — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• The Guide to Social Media and the Securities Laws — from Socially Aware Blog
• Discovery of Social-Media Passwords — from Delaware Employment Law Blog
• Social Media training for employees — from Gautam Ghosh on Human Resources
• Just because you own the device doesn’t mean… — from Omega HR Solutions

HR & Employee Relations

• Top 5 Reasons Employees Quit and What You Can Do About It — from In House
• Fired For Telling The Truth — from Work Place Coach Blog News
• 10 New (And Legal) Ways Your Employer Is Spying On You — from Screw You Guys, I’m Going Home
• Careful, that Slice of Pizza You’re Eating Might Be Full of Trade Secrets — from Trading Secrets
• Don’t Forget the ‘Human’ in Human Resources! — from Blogging4Jobs
• Cleansing a Toxic Workplace — from Time
• Millennials in the Workplace: More Engagement, Less Powerpoint — from The Marketing Strategist

Wage & Hour

• Supreme Court to Consider Tax Treatment of Severance Payments — from Washington D.C. Employment Law Update
• Roto Rooter OT Case Shows Interplay Between Arbitration and Lawsuits — from Wage & Hour - Development & Highlights
• Sick employee wants less overtime? Consider that a request for intermittent FMLA leave — from Business Management Daily
• They’re Heeeerrrreeee … Obamacare Exchanges Go Live — from Phil Miles’s Lawffice Space

Facebook “likes” as free speech

In Bland v. Roberts, a Virginia federal court dismissed a First Amendment retaliation lawsuit brought by a group of terminated city employees who had supported the incumbent sheriff’s opposition by, among other things, liking the candidate’s campaign Facebook page. The court concluded that merely clicking the “like” button on a Facebook page is not Constitutionally protected speech.

At the time, I took issue with the court’s opinion (quoting Eugene Volokh):

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed…. Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected.

I called for the 4th Circuit to reverse this misinformed precedent, and the 4th Circuit listened. Last month, the Court reversed the trial court’s dismissal, holding that the First Amendment protects Facebook “likes.”

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. … That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Unlike their private-sector counterparts, public employees enjoy free-speech rights in the workplace (the NLRB notwithstanding). This case reaches the common-sense conclusion that these free-speech rights extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. Thus, public employers need to take heed before taking action based on these online activities.

This post originally appeared on The Legal Workplace Blog.

Must you pay your employees for civic and charitable work?

October is Breast Cancer Awareness month, which means that businesses all over the country will be sponsoring events to combat this disease that has touched so many.

If your non-exempt employees are attending one of your charitable event, however, do you have to pay them for their time? It’s no surprise that the answer is, “It depends.”

The Fair Labor Standards Act’s regulations [pdf] differentiate between required time and volunteered time for time spent serving a public or charitable purpose.

• If the employee’s time spent at the civil or charitable event is at the employer’s request, it is compensable hours worked and must be paid.
• If the time spent is under the employer’s direction or control, it is compensable hours worked.
• If the time spent is while the employee is required to be on the premises, it is compensable hours worked.
• If, however, the employee voluntarily chooses to spend his or her time outside normal working hours at the event, then it is not compensable hours worked and can be unpaid.

And, keep in mind that if the compensable time is in excess of 40 hours in a workweek, it must  be paid at time and a half.

Before you send that next email or memo requiring employees’ presence at a chartable event, don’t, unless you want to pay employees for their time. If you are otherwise soliciting attendees, make sure you make it clear that their attendance is 100 percent voluntary to avoid having to pay employees for their time.

It’s the final countdown: How the government shutdown affects labor and employment law

In case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.

For example, the Equal Employment Opportunity Commission:

1. Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
2. Will not conduct any investigations.
3. Will not mediate any charges.
4. Will not have staff available to answer questions or respond to correspondence.
5. Will not litigate, unless a court denies a request for extension of time.
6. Will not process any FOIA requests.

The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.

Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.

Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.

While it difficult to predict how long this shutdown will last. The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.

For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.

photo credit: G0SUB via photopin cc

What Kanye West can teach you about employee relations

Ragan.com recently asked this question: “When should you fire an employee for his tweets?”

As a management-side employment lawyer you’d think I’d tell you that private-sector employees have no privacy rights in what they post online, and that an employer has the right to fire any employee, at any time, for anything posted on a social network (with a big caveat under the National Labor Relations Act). More or less, that statement is legally correct.

But just because something is legally correct doesn’t make it practically prudent. Firing an employee for what they say online ignores the risk of harm to a business if the firing goes viral.

Case in point? Consider last week’s dust-up between Kanye West and Jimmy Kimmel. In case you’re not up on the latest gossip, Kanye gave the BBC a very (even for Kanye’s standards) self-aggrandizing interview, which Jimmy Kimmel mocked by having a little kid reenact the interview on his late-night talk show. Had it stopped there, the story would have likely died. But, Kanye took the story to his nearly 10 million Twitter followers, trashing Jimmy Kimmel in a series of progressively offensive tweets, which led to Kimmel devoting an entire monologue to eviscerating Kanye. (By the way, Kanye, 1) you’re not going to win a battle of wits with a stand-up comic, and 2) deleting all of your tweets does not erase them from every news outlet that’s already posted screen caps.)

The lesson here? Social media has the ability to turn a forgotten event into a viral nightmare. Certainly there are instances when you will have no choice but to fire someone for something posted online—for example, racist, sexist, or other inappropriate conduct, or breaches of confidentiality.

Take a look at Twitter, however, and realize how fast a tweet can disappear from a stream. Now, consider your employee, who likely has 5 or 10 followers, or even a few hundred Facebook friends. Given this limited reach, how likely is it that something an employee posts will hurt your business? If the answer is not-very-likely, then give serious consideration to ignoring it. Instead of firing an employee over some marginally inappropriate or improper post, consider providing all of your employees some training on responsible posting and other online activities. Turn a potentially viral and destructive situation into a positive learning experience.

WIRTW #290 (the “magnificent seven” edition)

I’m not going to lie; it’s nice when an organization recognizes my blog. The ABA Journal has honored me for the last three years by including me in its preeminent list of lawyer blogs, the Blawg 100. LexisNexis has also honored this blog, as have several others.

With that, I want to say thank you to Paralegal 411, which has compiled its own list of the Top 25 Employment Law Blogs, based on “website popularity metrics including the number of websites linking to them, Google Page Rank, website authority, and Twitter followers.” I came in at number 7. The other 24, many of whom are friends, are worth your time checking out.

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

Discrimination

• Association Is Not A Protected Category or Is It? — from Blogging4Jobs
• Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits — from EEOC Year-End Countdown
• Does the ADA mandate transfer preferences for disabled employees? — from Eric Meyer’s Employer Handbook Blog
• Is body odor a real disability? — from Business Management Daily
• Parties Petition SCOTUS to Hear Corporate Free Exercise Issue — from Phil Miles’s Lawffice Space
• What??? Even Informal, Oral Complaints Can Support an Employee’s Retaliation Claim??!! — from The Emplawyerologist
• Does Paramour Favoritism Constitute Discrimination? — from Minnesota Employer

Social Media & Workplace Technology

• Why Employers Should Love, Not Loathe, Social Media — from Molly DiBianca’s Delaware Employment Law Blog
• “Liking” on Facebook – The Internet Equivalent of a Yard Sign — from netWORKed Lawyers
• Step Right Up to the Paperless Law Office — from Attorney at Work
• Building a Secure Corporate Culture from the Top Down — from i-Sight Investigation Software Blog

HR & Employee Relations

• Dear Evil Skippy: Should I Hire The Cocktail Waitress? — from Evil Skippy at Work
• Should I Give a Bad Coworker a Reference? — from Lifehacker
• Mr. Forthright’s Tips On How To Pretend To Work At Work — from The Huffington Post
• The 3 Common Hiring Practices That Are Completely and Totally Wrong — from TLNT
• A Background Check is More Than a Price Tag: 3 Methods for Valuable Criminal Background Checks — from employeescreenIQ Blog

Wage & Hour

• Holiday pay - five things you should know when calculating holiday pay — from Employment Law Watch
• DOL Issues ERISA Guidance on Same-Sex Marriage; Is FMLA Guidance Next? — from Jeff Nowak’s FMLA Insights
• Law firms need not pay student interns for pro bono work — from Ross Runkel Report
• FMLA Certifications: What Do With an Incomplete or Insufficient Certification — from Employer Defense Law Blog

Labor Relations

• NLRAA (the extra A stands for app) — from HR idiot
• “Minority Unionism” Targets Employee Rights — from LaborPains.org
• Authorization Cards are Awfully Tricky — from Matt Austin Labor Law
• HR: Be sure your dress codes don’t violate the NLRA — from Warren & Associates Blog

Creating alternate avenues for employees to complain key to harassment prevention

In a story that reads more like an un-filmed script from The Office instead of an actual workplace, the EEOC announced that it has settled a sexual harassment lawsuit against an Atlanta-area cargo and freight transportation company. The female manager on whose behalf the EEOC filed suit alleged that the company’s owner and CEO subjected her to the following:

The harassment included a barrage of lewd sexual comments, gestures, and e-mails about the employee’s breasts, many of which were sent to other employees in the office. The CEO also kept a pair of rubber breasts on his desk along with a jar of Vaseline, visible to all employees and customers who visited the company facility.

As is often the case when an allegation of harassment involves a senior executive at a company, she claimed that management ignored her complaints.

This story illustrates two important and related points about an effective harassment-prevention program:

1. A effective anti-harassment policy must provide multiple avenues for an aggrieved employee to complain. Otherwise, an employee will feel powerless if the person to whom a policy directs her to complain also happens to be the alleged harasser. At a minimum, a policy should state that an employee can complain to HR, or to any supervisor, manager, or executive. In an ideal world, a company should also provide a telephone hotline and email account into which an employee can send complaint.

2. No amount of avenues to complain will make any difference if a company has a culture of covering up complaints levied against members of senior management. A company must take all harassment complaints seriously. It cannot ignore a complaint just because the alleged harasser also happens to be the company’s CEO.

Ensuring that your harassment-prevention program incorporates these two ideas will position your organization to deter and investigate all levels of harassment in your workplace, even that which starts at the very top.