#SCOTUS ambushes employers on agency rulemaking

Yesterday, the U.S. Supreme Court unanimously held that the Department of Labor’s Wage and Hour Division had the authority to alter its prior interpretation of the FLSA’s administrative exemption and exclude mortgage-loan officers from its coverage. The decision—Perez v. Mortgage Bankers Assn. [pdf]—is an interesting read if you are into administrative law, agency rulemaking, and the difference between “legislative rules,” which an agency only can issue through formal notice-and-comment rulemaking, and “interpretative rules,” which do not carry the force and effect of law and which an agency can adopt on a whim.

The Supreme Court could have used the opportunity presented by Perez v. Mortgage Bankers Assn. to rein in federal agencies that are emboldened with power. It did not take that bait, even though Justice Scalia, who concurred in the result, had some harsh words for federal agencies that legislate instead of regulate:

Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment.

This issue is of critical importance, considering the NLRB’s “ambush election” rules, which take effect on April 14. These rules will:

• Require that most union representation elections be held 10 – 21 days after a petition has been filed, robbing employers of the opportunity to deliver their message to employees.
• Defer disputes over voter eligibility until after the election.
• Expedite pre-election hearings.
• Mandate that employers provide more expensive employee contact information.

If federal courts must show broad deference to administrative rulemaking, as Perez v. Mortgage Bankers Assn. suggests, employers do not stand much of a chance to block these “ambush election” rules, even as lawsuits are filed and legislation pushed.

If these ambush rules are a fait accompli, what can employers do to minimize the risk of being on the losing end of a union organizing campaign? I advocate the TEAM approach to union avoidance.

          Train supervisors
          Educate employees
          Affirm the open door
          Modernize policies


1. Train Supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people that rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor, and legally respond to union activity.


2. Educate Employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; positive communication between management and employees; history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs.


3. Affirm the open door. Management should routinely round its employees to learn what is happening and what they are thinking. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meeting.


4. Modernize Policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. These ambush election rules are the perfect excuse to take a good, hard look at current policies. Do you have a written statement on unionization? An open door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no solicitation policy? It is the single most important policy to help fight labor unions.

Because employers will no longer have the opportunity to run an meaningful campaign after a union files its representation petition, it is essential that employers address these issues proactively before a union talks to even one of your employees.

To learn how to deploy this critical strategy in your workplace, contact one of Meyers Roman’s labor and employment attorneys.

Is your company ready for WYOD?

At 1 pm today, Apple will formally unveil its Watch to the public. While other companies have launched smartwatches, because it’s Apple, today’s launch of the Apple Watch will officially herald the beginning of the era of wearables.

If the era of wearables is upon us, it means that as soon as your first employee wears a smartwatch to work, your HR, legal, and IT departments have a whole host of new issues with which to deal.

Better stated, the issues aren’t new, but their application to an evolving technology is.

If your organization already has a BYOD (Bring Your Own Device) policy, then you are well ahead of the game. You will, however, have to adapt that policy to account for WYOD (Wear Your Own Device). All you’ll have to do is extend your BYOD to expressly cover wearables. These devices will bring email, text messages, financial information, and health data to a smaller, even more portable form. And, the more avenues your employees have to access your network and data, the more ingresses hackers have to steal information and do other bad things. In other words, you need to understand wearables, and account for them in your policies, because your employees aren’t going to wait for an official green light to start using them.

If you don’t have a BYOD policy, what are you waiting for? These issues aren’t going away. What should you be considering? Here is a good starting point.

WIRTW #358 (the “appreciation” edition)

o your employees feel appreciated? Today is Employee Appreciation Day. However, if you limit your appreciation efforts to 0.38% of a year’s working days, I can flat-out guarantee that your employees do not feel appreciated (even on their “special” day). Employee appreciation needs to be a year-round effort, not a one-off to-do to check off your corporate calendar.

Here are some thoughts, from the archives, to make employee appreciation part of your corporate culture.

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

Discrimination

• Job blackmail is not the quickest way to a girl’s heart — via Mike Haberman’s Omega HR Solutions
• The Pregnancy Discrimination Laws You Never Knew About — via Dan Schwartz’s Connecticut Employment Law Blog
• OFCCP Updates Sex Discrimination Guidelines — via Newton Software Blog
• Is Anyone Else Fascinated by the Abercrombie and Fitch Supreme Court Case? — via The HR Capitalist, Kris Dunn
• In-House Counsel: Is Transgender Discrimination on Your Radar? — via In House
• Transgender Discrimination is Illegal — via Cleveland Employment Law Blog

Social Media & Workplace Technology

• Is Big Brother Watching? When Big Data Meets HR — via employeescreenIQ Blog
• Law firms clash over laptops taken by departing lawyers — via ABA Journal Daily News
• Compliance concerns for 2015 and beyond, Part 1: Social media — via InsideCounsel
• The Emergence of Cybersecurity Law — via Ride The Lightning
• What Does the Anthem Breach Mean For You? — via Minnesota Employer
• Twitter is surveying users about how much they get harassed online — via The Verge

HR & Employee Relations

• Though employees may not balk at signing non-competes, the key is when to use them. — via Eric Meyer’s The Employer Handbook Blog
• The Unholy Trinity of HR: Reference Checks — via Fistful of Talent
• Millennials Want to Be Coached at Work — via Harvard Business Review

Wage & Hour

• Some Thoughts on Employee Appreciation Day, including a Potential Wage and Hour Pitfall — via Employment Matters Blog
• DOL Wage and Hour Division Announces Fiscal Year 2014 Recovery of $240 Million From Employers — via Wage & Hour Insights
• FLSA Changes Could Make Many Retail Managers Non-Exempt Employees — via TLNT
• It’s March 2015. The DOL’s Model FMLA Forms Expired Just Days Ago. Now What? — via Jeff Nowak’s FMLA Insights
• Who Signed that Doctor's Note? — via All in a Day’s Work
• Marriage Equality and the FMLA — via Molly DiBianca’s Delaware Employment Law Blog

Labor Relations

• Your Business Needs a Labor Relations Response Plan — via The Michael VanDervort Blog
• (Video) NLRA and Social Media — via Phil Miles’s Lawffice Space
• Labor Unions are Dinosaurs — via The Tim Sackett Project

Some harassment shouldn't be in the eye of the beholder

A hostile work environment is hostile for one of two reasons—the alleged misconduct is either severe (overtly offensive), or pervasive (repeatedly offensive). The more severe the misconduct is, the less pervasive it has to be.

In this context, consider the following from Satterwhite v. City of Houston [pdf], in which the 5th Circuit affirmed the dismissal an employee’s retaliation claim:

Satterwhite asserts that he engaged in two distinct protected activities: (1) making an oral report to human resources that Singh used the phrase “Heil Hitler” in a meeting, and (2) answering questions in connection with the OIG’s investigation of the “Heil Hitler” incident. While Satterwhite’s actions could qualify as opposing …, for his actions to be protected activities Satterwhite must also have had a reasonable belief that Singh’s comment created a hostile work environment under Title VII.

No reasonable person would believe that the single “Heil Hitler” incident is actionable under Title VII. The Supreme Court has made clear that a court determines whether a work environment is hostile “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’” Furthermore, “isolated incidents (unless extremely serious)” do not amount to actionable conduct under Title VII. We have accordingly rejected numerous Title VII claims based on isolated incidents of non-extreme conduct as insufficient as a matter of law.

Thus, in Texas, Mississippi, and Louisiana, “Heil Hitler”  is “non-extreme conduct” (insert Southern joke here).

Two points to make.

1. Some harassment shouldn’t be in the eye of the beholder. (Warning, offensive language ahead). Nazi jokes/comments should be sufficiently severe to raise the specter of Title VII’s protections against religions harassment. Similarly, utterances of overtly offensive terms like “nigger,” “kike,” or “cunt” should, in nearly all cases, suffice to state a claim under Title VII. There is no excuse for this stuff in the workplace. Period.

2. If you have any doubt about point number one, it’s time for some harassment and EEO training in your workplace (which is a good idea annually anyway).

My latest column in Workforce: Absolut Commitment to Checking

In addition to my daily blogging, I also write a monthly column in Workforce Magazine. Here’s my latest from the March edition, discussing the import of the Fair Credit Reporting Act on employment background checks—Absolut Commitment to Checking. Enjoy.

	Look inside >
Absolut Commitment to Checking

Transfer as reasonable accommodation?

I once worked for a law firm (that shall remain nameless) that put me in a converted utility closet for my office. It was the only associate “office” open near the partners for whom I worked. It was so cramped that I has to turn sideways to shimmy past the desk to get to my chair.

I thought of this experience yesterday as I read a story on abajournal.com about a law firm associate who is suing her employer for disability discrimination, claiming it failed to accommodate her claustrophobia. She claims that her firm, which had previously permitted her to transfer to its Philadelphia office for different reasons, discriminatorily refused to transfer her to a nearby suburban office after she complained that the 24-floor elevator ride triggered a severe claustrophobic response. The firm initially permitted her to work from home while she sought treatment, and then allegedly fired her after she refused a transfer to an office 120 miles upstate.

Let’s start with some ADA basics. An employer does not have to create a position as a reasonable accommodation for an employee. However, transfer to a vacant position is a reasonable accommodation that an employer must consider when engaging a disabled employee in the interactive process.

These rules only tell part of the story for this case. What is a “vacant” position for a law firm associate? Could she still have serviced the same clients, and worked on the same cases, from a suburban office 10 to 20 miles away? Moreover, why did the employer cease the telecommuting accommodation after only one month, and only after the employee rejected the accommodation that would have required a four-hour daily commute, or for her to move upstate? These are fact issues that the court, or, maybe, a jury will have to work out as this case proceeds.

These questions, though, illustrate the type of dialogue you need to have both internally and with your employee whenever that employee requests a reasonable accommodation. Better to hash them out internally, then in court, right?

Do you know what to do when OSHA comes knocking?

News broke over the weekend of a fatality at a local manufacturing plant. Undoubtedly, OSHA was on the scene to unravel what happened.

Injuries or fatalities aren't the only reasons OSHA might arrive at your door. It might have received a complaint from a current or former employee. It might a random investigation. You might be part of a targeted industry. Or, it could be a follow-up from a prior investigation.

Regardless, when OSHA arrives, whatever the reason, your personnel needs to know that the first call should be to your employment lawyer. Unless the investigator has a search warrant or subpoena, he or she has no right to enter your business, no matter what he or she says to bully through your door.

OSHA is not your friend. It is not there to give you an atta-boy on workplace safety. It is there to find violations and levy fines to make money for OSHA. This is not cynicism; this is fact. And once it is through your door, everything becomes fair game, no matter the reason for the investigation.

OSHA's fines range from a maximum of $7,000 for each serious violation, and a maximum of $70,000 for each willful or repeat violation. Trust me, these numbers add up quickly.

What is OSHA looking for? Here is the agency's Top 10 list, right from its website:

1. Fall Protection
2. Hazard Communication
3. Scaffolding
4. Respiratory Protection
5. Lockout/Tagout
6. Powered Industrial Trucks
7. Electrical – Wiring Methods
8. Ladders in Construction
9. Machine Guarding
10. Electrical – General Requirements

If you are fortunate enough not to have OSHA in your facility, use the time to conduct a top-to-bottom safety audit. Call a workplace safety expert. Call an employment lawyer. Call someone knowledgable in this area to tell you what needs to be fixed before OSHA does it for you. And, if (when?) OSHA shows up at your door, call your employment lawyer to handle the investigation, mitigate the disruption, and, as best as possible, limit damage.

 

WIRTW #357 (the “proud papa” edition)

My kids go to an amazing school. Part of what makes it amazing is that beginning in third grade the second parent-teacher conference is student led. Last night, my wife and I experienced our first Norah-led conference.

The conference blew me away. I knew that Norah would be presenting her PowerPoint on Neptune, the culmination of weeks of research and hard work. I was not prepared, however, for the conference to be 100% student led. My wife and I watched and listened for nearly 45 minutes as, working off a prepared agenda, Norah ran the meeting and walked us through all she’s done for the past four months. She presented a dramatic monologue. She shared a story she had written in her creative writing journal. She demonstrated how she’s learned 3x2 multiplication. She displayed her self-assessed progress report (she’s much tougher on herself than her teacher would have been). The conference capped with Norah’s Neptune PowerPoint, which, with her permission, I’m sharing with you.

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

Discrimination

• Can Your Severance Agreements Withstand an EEOC Challenge? — via The Emplawyerologist
• Walmart Settles EEOC Age, Disability Discrimination Suit for $150K — via In House
• Is retaliation such a big deal? — via Mike Haberman’s Omega HR Solutions
• Cabbie’s Fear of Dogs Doesn’t Trump Requirement to Allow Service Dogs — via Dan Schwartz’s Connecticut Employment Law Blog
• Is Non-Pregnancy a BFOQ for Exotic Dancers? — via Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• The Apple Watch is coming: Do you have a Wear Your Own Device (“WYOD”) policy? — via Employer Advocate
• Legal Ethics and Social Media: What Pre-Litigation Advice May an Attorney Provide to His or Her Client? — via Above the Law
• A social media lesson to share with your workforce — via Eric Meyer’s The Employer Handbook Blog

HR & Employee Relations

• Should an employer fight unemployment? The debate continues… — via Robin Shea’s Employment & Labor Insider
• 3 Facts about Measles and the Workplace — via ERC Insights Blog
• Litigation Update: Transportation Firm Served With FCRA Class Action — via employeescreenIQ Blog
• Ten Actions You Can Take Now to Protect Your Company’s Trade Secrets – Action Eight: Make the Most of the Exit Interview — via netWORKed Lawyers
• What Counts As An Appropriate Workplace Hug? — via Evil Skippy at Work
• Why Workplace Accidents Tend to Happen Late in a Project — via Harvard Business Review

Wage & Hour

• Can the Employer Legally Cut an Employee’s Pay? — via Evil HR Lady, Suzanne Lucas
• When Do Bonuses Get Included In Non-Exempts’ Regular Rate for OT Calculations? — via Wage & Hour - Development & Highlights
• “Rises In The Minimum Wage Really Do Destroy Jobs” — via Walter Olson’s Overlawyered
• Eleventh Circuit Rules That Employer Cannot Assert Worker Misconduct Equitable Defenses in FLSA Unpaid Overtime Claim Where Employer Knew Employee was Under-reporting Time — via Employment Matters Blog
• Defendant Barred from Unilateral Meetings With Putative Class Members Outside of Formal Discovery Process, Absent Detailed Disclosures to Alleviate Concerns re Chilled Participation and/or Retaliation — via Overtime Law Blog
• Exemption Changes: A Possible "Plan B" For Retailers — via Wage and Hour Laws Blog
• Recovers $240 Million for More Than 270,000 Workers — via The Wage and Hour Litigation Blog

Labor Relations

• NLRB Ambush Election Rule Weakens Worker Privacy — via Labor Relations Institute
• Teamsters “Liking” First Labor Contract for Facebook Drivers — via All in a Day’s Work
• ERISA at 40: A Time to Assess Multiemployer Defined Benefit Pension Plans — via Management Memo
• NFIB Files Amicus Brief Ripping NLRB Facebook Ruling — via Labor Relations Today

 

Reading the #SCOTUS tea leaves: headscarves, religious accommodations, and Abercrombie

Yesterday, the Supreme Court heard oral argument in EEOC v. Abercrombie & Fitch Stores, Inc. (transcript here [pdf]), which will hopefully determine the circumstances under which an employer must, as a religious accommodation, grant an exception to its “Look Policy” for a hijab-wearing job applicant. More broadly, employers hold out hope for some more generalized guidance on what they should do when a corporate policy conflicts with an employee’s sincerely held religious belief.

What an interesting argument. The Justices seemed very skeptical of requiring employees to raise the issue of a reasonable accommodation in a job interview, and instead suggested that the burden should fall on an employer to bring up the issue. For example, Justice Kagan asked:

You’re essentially saying that the problem with the rule is that it requires Abercrombie to engage in what might be thought of as an awkward conversation…. But the alternative to that rule is a rule where Abercrombie just gets to say, “We’re going to stereotype people and prevent them from getting jobs. We’ll never have the awkward conversation because we’re just going to cut these people out.”

The criticism of the employer, however, was not limited to the Court’s left wing. Justice Alito also seems skeptical that an employer can simply ignore an obvious potential need for an accommodation simply by denying employment.

All right.  Let’s say …­­ four people show up for a job interview at Abercrombie…. So the first is a Sikh man wearing a turban, the second is a Hasidic man wearing a hat, the third is a Muslim woman wearing a hijab, the fourth is a Catholic nun in a habit. Now, do you think … that those people have to say, we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement….

I want to know the answer to the question whether the employee has to say, I’m wearing this for a religious reason, or whether you’re willing to admit that there are at least some circumstances in which the employer is charged with that knowledge based on what the employer observes.

Justice Alito then offered a very practical solution:

Well, couldn’t the employer say, we have a policy no beards, or whatever, do you have any problem with that?

Reading the tea leaves, I predict another employee-side victory from this conservative-majority court. If we are assigning burdens, it seems to me that the Court thinks it makes sense to place the burden on the party with more information (the employer) to explain the job requirements to determine if a potentially obvious religious belief conflicts. Otherwise, you are requiring the employee to guess at whether an accommodation is needed at all.

Stay tuned. This will be a very interesting opinion to read when it is released later this year.

DOL proposes expanded FMLA coverage for same-sex couples

Same-sex spousal rights in this country are a mess. There is hope that the Supreme Court will clear it all up later this year when it hears the issue. In the meantime, the Department of Labor has proposed a change to the FMLA’s definition of “spouse.” From the DOL:

We announced a rule change under the FMLA to make sure that eligible workers in legal, same-sex marriages, regardless of where they live, will have the same rights as those in opposite-sex marriages to care for a spouse. We’ve extended that promise so that no matter who you love, you will receive the same rights and protections as everyone else.

For the purposes of the FMLA, marriage will now be determined based on where the couple got married, not on where an employee lives. This is called a “place of celebration” rule.  That means that access to federal FMLA leave for an individual in a same-sex marriage is protected regardless of the marriage laws of the state in which that worker resides.

Thus, as proposed, the meaning of “spouse” under the FMLA would depend on the law of state in which the marriage was celebrated, not the law of the state where the employee lives or works. So, if your business is in Ohio and your employee lives and works in Ohio (which does not currently permit same-sex marriages), but travels to New York for a lawful and valid same-sex wedding ceremony, you would have to grant that employee the same FMLA benefits as you would to any other “spouse.”

This rule takes effect March 27, which means you have only 30 days to prepare your FMLA policies and practices for this important change. What should you be doing to prepare? Jeff Nowak offers three really good ideas:

1. Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.

2. Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.

3. Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

Of course, as Robin Shea correctly points out, if the Supreme Court rules later this year that states must recognize valid same-sex marriages entered in other states (as it should), then the necessity of this DOL regulatory change is short lived.

Courtesy of the DOL, here are all of the resources you need on this important issue:

• Text of the Final Rule (effective March 27) [pdf]
• DOL Fact Sheet
• FAQs
• DOL Press Release

Turning a mistake into an educational opportunity

Yesterday, local morning news anchor Kristi Capel got herself into a bit of a mess when, during her newscast and while speaking to her African-American co-anchor, used “jigaboo” to refer to Lady Gaga’s music.

We can debate the sincerity of her explanation (“I deeply regret my insensitive comment. I didn’t know the meaning and would never intentionally use hurtful language. I sincerely apologize”), or the intent of her words. To me, she did not appear to intend hatred or bigotry, even if I don’t necessarily believe that she didn’t know the meaning of jigaboo. We can also debate whether she deserves to lose her job because of this incident. To me, if this is her first instance of racial insensitivity in the workplace, then there is no reason she must be fired (although Fox 8 certainly would be within its rights if it did so).

Instead, I want to use this story to illustrate a broader and much more useful point. In responding to workplace harassment, Title VII does not require that an employer deploy the most severe punishment. Instead, Title VII merely requires that an employer institute corrective action that is reasonably likely to prevent the harassment from re-occurring. Every workplace faux pas is not an excuse to punish. Yet, each presents an opportunity for an employer to teach, and for employees to learn.

In commenting on the incident, Fox 8’s news director said, “Kristi apologized on the air shortly after making the remark. She did not know what the word meant but that is no excuse for using it. We have spoken with her and are confident nothing like this will happen again.” Good response.

4th Circuit eviscerates EEOC in background screening case

Nearly a year ago, the 6th Circuit sent a strong message to the EEOC in dismissing a case regarding its “expert” witness retained to challenge an employer’s use of credit checks. Last Friday, the 4th Circuit affirmed the dismissal of a similar case in which the EEOC used the same expert. In EEOC v. Freeman [pdf], the 4th Circuit did not mince its words:

The EEOC wields significant power, some of which stems from the agency’s broad discretion to investigate, conciliate, and enforce, and some of which derives from public actions that exert influence outside the courtroom. The Commission’s actions can be also expected to have broader consequences than those of an ordinary litigant given the “vast disparity of resources between the government and private litigants.”

In deciding when to act, the Commission must balance sometimes-competing responsibilities. On the one hand, the agency must serve the employee’s interest by preventing an employer from “engaging in any unlawful employment practice” under Title VII. On the other hand, “the EEOC owes duties to employers as well: a duty reasonably to investigate charges, a duty to conciliate in good faith, and a duty to cease enforcement attempts after learning that an action lacks merit.” That the EEOC failed in the exercise of this second duty in the case now before us would be restating the obvious.

The EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress, as its “significant resources, authority, and discretion” will affect all “those outside parties they investigate or sue.” Government “has a more unfettered hand over those it either serves or investigates, and it is thus incumbent upon public officials, high and petty, to maintain some appreciation for the extent of the burden that their actions may impose.” The Commission’s conduct in this case suggests that its exercise of vigilance has been lacking. It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.

Ouch.

WIRTW #356 (the “rock hall” edition)

You may have heard that Cleveland has the Rock and Roll Hall of Fame. You may have also heard that this year is Cleveland’s turn in the rotation to host the induction ceremony.

The Rock Hall is turning this year’s inductions into a week-long party, which kicks off with Celebration Day on April 11.

Here comes the cool part. Since Joan Jett is one of this year’s inductees, the Rock Hall has invited my daughter’s School of Rock band for an encore performance of last month’s Joan Jett show—April 11, at 5 pm, on the big stage at the Rock Hall. Norah’s very sincere comment when I told her: “Some people wait their whole lives to play at the Rock Hall — I’m only 8.”

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

Discrimination

• Sexual Harassment: Boys and Thrones — via Heather Bussing at HR Examiner with John Sumser
• What Sexual Harassment at Work Really Looks Like — via Cosmopolitan 
• Nobody Discriminates Like Sara Lee? — via Workplace Prof Blog
• Showdown At The Fifth Circuit Continues: Texas Gets The Last Word On Its Challenge To The EEOC’s Criminal Background Guidance — via EEOC Year-End Countdown
• Everything old is new again: How the EEOC is reinventing itself — via Oregon Business

Social Media & Workplace Technology

• What To Do When a Fired Employee is Badmouthing Your Company — via Inc.com
• Wait…What Did He Say? (Or, What To Do When Your Employee’s Tweet Goes Viral) — via Employment Law Lookout
• Social Media 2015: Addressing Corporate Risks — via Socially Aware Blog
• The school bus driver’s beer-drinking selfie on Facebook was a bad idea — via Eric Meyer’s Employer Handbook Blog
• Wearable Workplace “Mood Monitors” Are About To Become A Thing — via Good
• Should you tell app-loving Generation Z no in the workplace? — via Information Age
• ‘Deactivated’ Facebook Account Is Discoverable In Litigation (Forbes Cross-Post) — via Technology & Marketing Law Blog
• Reality ‘bytes’: Employee sabotages electronic files and communication — via Technology for HR

HR & Employee Relations

• And Vice Versa — via dad working
• Paid Leave for New Dads and Moms: Why is U.S. so far behind? — via Families and Work Institute Blog
• How to Keep HR Off the Front Page of the Newspaper — via TLNT
• Litigation Update: Home Depot Hit for Employment Background Checks — via employeescreenIQ Blog
• The Brian Williams Story: Lessons for Employers — via Joe’s HR and Benefits Blog
• 5 Real-Life Lessons About Resume Fraud — via EmployeeScreenIQ Blog
• You’ve exceeded my expectations, Valentine! — via Robin Shea’s Employment and Labor Insider
• Weight Loss Competitions In The Workplace — Yay or Nay? — via Evil Skippy at Work
• Millennials on the Market: Recognition & Retention in an Age of “What’s in It for Me?” — via Compensation Cafe

Wage & Hour

• The USDOL is looking for ideas and there is a deadline of February 25th — via Mike Haberman’s Omega HR Solutions
• U.S. Department of Labor’s blueberry squeeze goes wrong — via Walter Olson’s Overlawyered
• Government Gets Cold Shoulder to “Hot Goods” Provision Usage — via Dan Schwartz’s Connecticut Employment Law Blog
• Predictable Scheduling: The Next FLSA Frontier? — via Wage & Hour Insights
• An NPR ‘Miss’ On Labor Unions and the Minimum Wage — via LaborPains.org
• When Must An Intern Be Paid? — via Overtime Lawyer Blog
• Healthy Families Act Would Let Workers Earn Paid Sick Days — via Today’s Workplace

Labor Relations

• The Cost of a Decline in Unions — via Nicholas Kristof at The New York Times
• NLRB General Counsel Issues Guidance on Deferral to Grievance Arbitration and Settlements — via Labor Relations Update
• DOL: 150 Union Pension Funds In Critical Status — via Labor Relations Institute
• D.C. Circuit Caps NLRB’s Overly Zealous Policing of Section 7 Rights — via Vorys on Labor

 

Gawker intern lawsuit shows the need for social-media savvy in the legal profession

Have you recently tried to communicate with someone under the age of 25? Have you tried to call them? How about email? What about text message, Facebook, or Twitter? I bet that your communicative outreaches are much more likely to gain a response if you choose any of the latter over the former.

Thus, it shouldn’t be that surprising that a federal court is permitting a group of former interns (now plaintiffs) to use social media to reach out to potential class members concerning a wage-and-hour lawsuit against online blog network Gawker. According to Gawker, however, in this letter filed with the court [pdf], the plaintiffs’ planned social media outreach goes too far.

The court previously green lit the plaintiffs’ use of social media to reach potential class members. Their proposed plan? In addition to tweets directing potential class members to a website about the lawsuit, the use of the hashtag “#gawkerinternlawsuit, and the creation of a Facebook pages and LinkedIn group to disseminate information to potential class members. Other proposals, to which the employer objects, include:

• Repeat messages over numerous social media sites, including Twitter, LinkedIn, Reddit, Facebook.
• The use of inflammatory hashtags such as #fairpay and #livingwage.
• Plaintiffs’ counsel adding potential claimants as Facebook friends.
• Using Reddit to tie the lawsuit to unrelated political causes.

I don’t need to tell you that social media has become ubiquitous. I also don’t need to tell you that lawyers are notoriously slow to adapt. As the Gawker case illustrates, social media is playing, and will continue to play, an important role in litigation. If I were hiring an attorney to handle my employment litigation, one question I would be asking is whether that lawyer understands social media, uses social media, and knows how it could be used to help the case.

[Hat tip: Employment Law 360]

Target (inadvertently) teaches the importance of avoiding age-based stereotypes

I do a lot of speaking. One speech that I’ve been giving over the past couple of years is entitled, “X+Y+Z = A Generational Mess for Your Workplace.” I teach how employers can best manage the diverse needs and abilities of four different generations of employees. I discuss some broad-based generalizations about Traditionalists (age 70+), Baby Boomers (50-69), Gen X (35-49), and Gen Y (under 35). I always finish by discussing the very real risk of age discrimination if you treat these generalizations as gospel, and do not treat each employee, of age any, as an individual, with individual talents and abilities.

Target saw the need to offer the same type of training to its managers, but it left off the part about age discrimination. Gawker (h/t Business Management Daily) published Target’s training materials, entitled, Managing Generational Differences,” which, among other things, describe its oldest workers as “slow to adapt to change,” “rarely question[ing] authority” and see[ing] technology as “complex and challenging.”

When you are sued for discrimination, your training materials are fair game in litigation. While you write them to aid your employees, you must do so with (at least) one eye on the jury that will read them during trial. You do not want to have your manager explain to a jury, in an age discrimination case, if he thought the plaintiff was “slow to adapt to change” when he made the termination decision.

Federal appeals court rejects “retaliatory rehiring” claim

As part of massive reorganization, Allstate severed the employment of approximately 6,200 employee agent. In connection with the layoff, Allstate offered all of the employee agents the opportunity to convert their employment status into that of an independent contractor selling Allstate insurance products, provided that they signed a release of all legal claims against Allstate, including federal employment discrimination claims.

In filing suit on behalf of the employees, the EEOC took the position that conversion from an employee to an independent contractor, coupled with a general release, constitute unlawful retaliation under the federal civil rights laws.

In EEOC v. Allstate Ins. Co. (2/13/15) [pdf], the Third Circuit flatly rejected the EEOC’s folly.

It is hornbook law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled. Nothing in the employment-discrimination statutes undermines this rule….

According to the Commission, Allstate could have complied with the antiretaliation statutes by simply firing all its employee agents for good, instead of giving them the opportunity to sell Allstate insurance in a different capacity. We are confident that federal laws designed to protect employees do not require such a harmful result….

The EEOC here fails to articulate any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.…. [W]e are not persuaded by the Commission’s efforts to arbitrarily limit the forms of consideration exchangeable for a release of claims by a terminated employee.

In other words, the employer, and not the EEOC, gets to decide the post-employment benefit to provide an employee in exchange for a release of claims—whether it’s severance pay, continued health benefits, an engagement as a independent contractor, or something else. As long as the consideration is not something to which the employee is already entitled, a court will not second-guess its sufficiency.

FCRA class-action lawsuits should have your attention

In the last month alone, at least three huge national employers (Home Depot, Time Warner, and Michael Stores) have been hit with class action lawsuits alleging that their background screening practices for job applicants violate the Fair Credit Reporting Act.

What is the Fair Credit Reporting Act, and why must you, as an employer, pay attention to it? Thankfully, I have the answers, wrapped up in a tidy one-hour webinar I presented for BackTrack late last month. Enjoy!

WIRTW #355 (the “paraskevidekatriaphobia” edition)

Paraskevidekatriaphobia is the fear of Friday the 13th. Fragapane Phobia is the fear of celebrating birthdays. Today is my birthday, and, thankfully, I suffer from neither of these phobias. Happy birthday to me.

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

Discrimination

• EEOC Regional Attorney John Hendrickson Offers Insights on EEOC’s Pregnancy Discrimination Guidance — via Jeff Nowak’s FMLA Insights
• Agreeing with EEOC, jury awards demoted boozing truck driver $119,000 — via Overlawyered
• “Fifty Shades” at the Water Cooler — via Evil HR Lady, Suzanne Lucas
• transvestism, transsexualism, gender identity disorders and ADA; True-False version — via Understanding the Americans with Disabilities Act (ADA)
• The Supreme Court and the Men Who Lactate — via Phil Miles’s Lawffice Space
• Employment Litigation is Too Expensive — via Christopher McKinney’s Texas Employment Law Blog
• Faruqi sex harassment trial: it’s a wrap! — via Robin Shea’s Employment & Labor Insider
• DOL Interactive Map Highlights State-by-State Protections for Pregnant and Nursing Women — via Joe's HR and Benefits Blog
• Three Observations about the New EEOC Statistics — via Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• How Not to Start a New Job — via San Antonio Employment Law Blog
• Who CAN you fire for their social media activity? — via Mike Haberman’s Omega HR Solutions
• Facebook now lets you choose who controls your account after you die — via The Verge
• Invasion of the Body Cameras: You Need to Be Ready — via Inc.com
• Avoiding liability when searching employee devices — via Technology for HR
• Are RFID Chip Implants on the Horizon for Employees? — via Abovethelaw.com

HR & Employee Relations

• Can You Deny Employment for Falsifying a Job Application? — via employeescreenIQ Blog
• Does Your Office Have Dating Policies and Guidelines? — via ERC Insights Blog
• It Isn’t Your Father’s Workplace Anymore — via Huffington Post
• HR Lessons from Downton Abbey — via Blogging4Jobs
• Refresh Your Lame "Employee of the Month" Program With This Idea — via The HR Capitalist, Kris Dunn

Wage & Hour

• Worker underreports hours? You still owe OT — via Business Management Daily
• Must you pay an employee for mandatory alcohol treatment? — via Eric Meyer’s The Employer Handbook Blog
• Furious Lobbying Continues Ahead of New FLSA Regulations — via Wage & Hour Insights
• Is Ohio’s Minimum Wage On the Rise? — via Employer Law Report

Labor Relations

• Trade Groups Take Aim At Quickie Election Rule — via Labor Relations Today
• Calling the Police Over Handbilling in Front of Workplace Unlawful Because City Previously Designated Area as Public Right of Way — via Matt Austin Labor Law

Clowns, Black Sabbath tribute bands, and a lesson on the ADA

When I was a little kid, I was petrified of clowns. I would run screaming anytime I would see one in a parade, or one would show up on TV. I vividly remember a recurring nightmare of Ronald McDonald chasing me around the coffee table in our basement. Upon reflection, the dream was inevitable, given my coulrophobia, and the McDonald-land motif of a yellow coffee table, and bright red shag carpet that bore a striking resemblance to Ronald’s hair. I’ve been over my fear for nearly 40 years. But, if I wasn’t, I could flat our guarantee that I wouldn’t be applying for jobs at the circus. And, if I applied, I wouldn’t expect the circus to hire me.

Even if coulrophobia is an ADA-protected disability (and it likely is), that is only half of the equation to determine whether the ADA offers job protections to an individual with a disability. The individual must also be “qualified,” which means he or she must be able to perform the essential functions of the job, with or without reasonable accommodation.

With all of this as background, consider Waltherr-Willard v. Mariemont City Schools [pdf], decided yesterday by the 6th Circuit. Maria Waltherr-Willard is a schoolteacher suffering from pedophobia, a debilitating fear of young children. She sued Mariemont City Schools for disability discrimination when it denied her transfer request. Needless to say, she lost.

The ADA, as amended in 2009, is wide-reaching. I’m on record as saying that most medical conditions will qualify as “disabilities” under the statute. But, just because an employee is “disabled” does not mean that you must accommodate the disability. You need to engage to employee in the interactive process to determine if an accommodation is needed at all to enable the employee to perform the essential functions of the job, and if so, whether such an accommodation is reasonable and available. If the answer to these questions is no, then the ADA does not protect the employee.

(Yes, this is a real band).

Can you require vaccines for your employees?

You may heard that we have a bit of a measles issue going on around the country.

At his HR Solutions blog, and on his Twitter, Make Haberman asked, “Are measles protected by the ADA?”

The ADA no longer carves-out “short-term” impairments from its definition of “disability.” Thus, there is an argument to be made that the measles could qualify as an ADA-disability, provided that it substantially limits a major life activity of the sufferer. Given that one only suffers from measles symptoms (albeit rather severe symptoms) for a week or so, I have my doubts that a one-week impairment “substantially limits a major life activity” of the sufferer. No matter how loosely the Act’s 2009 amendments liberalized the definition of “disability,” I can’t imagine Congress intended the ADA to apply to short-term viruses.

Whether or not the ADA covers the measles as a disability, if you are going to fire an employee who cannot come to work because of the measles (FMLA notwithstanding), you need to engage in some serious self reflections about the type of employer you are.

Of course, if everyone was vaccinated against the measles, we wouldn’t need to have this discussion. So, can you require that your employees present proof of vaccination as a condition of employment? Here’s what the EEOC has to say on the issue:

An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).

Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.

At least as far as the EEO laws are concerned, private employers can require vaccinations, as long as you are willing to accommodate employees’ disabilities and religions.