WIRTW #194 (the “sermon on the blog” edition)

On Monday, I dodged the question of whether Jesus was the world’s first socialist. The answer is no:

Apparently, he also was not a fan of the minimum wage (skip ahead to 1:32 for the key piece):

It’s debatable if he can hit a curveball:

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

(Don’t forget to vote for the LexisNexis Top 25 Labor and Employment Law Blogs of 2011.)

Discrimination

• Handling discrimination complaints requires caution, training – from Judy Greenwald at Business Insurance
• “Will restricting criminal background checks actually increase minority unemployment?” – from Walter Olson’s Overlawyered
• Employees Have the Advantage At Trial in Getting to Speak First and Last – from Texas Employment Law Update
• “Best B*** J**s on the #8 Line” – from Phil Miles’s Lawffice Space
• Court Not “Up In the Air”: Travel for Work Does Not Violate “Familial Association” Right – from Dan Schwartz’s Connecticut Employment Law Blog
• Staking out the EEOC and its wave of ADA suits against employers – from Robin Shea’s Employment and Labor Insider
• EEOC: WalMart Refused to Accommodate Employee With Cerebral Palsy – from Joe’s HR and Benefits Blog
• Post-Pregnancy Protections – from The L•E•Jer
• Is Telling an Employee to Forget Her Dead Daughter Proof of a Hostile Work Environment? – from TLNT
• 7th Circuit: Internal Complaint About One Boorish Comment Was Not “Protected Activity” under Title VII – from ZR Workplace Law

Social Media & Workplace Technology

• Why Your Company Needs a Mobile Technology Policy – from hr bartender
• Social Networking in Wrongful Termination Cases – from Bow Tie Law’s Blog
• How to Deal with Facebook Fits and Twitter Tirades – from i-Sight Investigation Software Blog
• Government Employers Can (and Should) Have a Social-Media Policy, Part 1, and Part 2 – from Molly DiBianca’s Delaware Employment Law Blog
• Here’s How to Use Social Media for Retention Purposes – from The HR Capitalist, Kris Dunn
• Protecting Trade Secrets in the World of Social Media—Drawing Appropriate Lines – from Social Media, Esq.

HR & Employee Relations

• Employer Obligations When it Comes to Employees and Jury Duty – from Jason Shinn’s Michigan Employment Law Advisor
• Yes, Virginia, There Are Good Curse Words – from Settle It Now Negotiation Blog
• Why It Doesn’t Matter That Your Coworker Makes More Money Than You Do – from the Evil HR Lady, writing at BNET
• Are Salaries Secret? – from Texas Employer Handbook
• How to Write an Employee Handbook … The Great American Novel, or Just a Short Story? – from Michigan Employment Law
• Average Telecommuter Works Less Than One Hour Per Day – from Workplace Diva

Wage & Hour

• FMLA FAQ: How Many Intermittent FMLA Leave Hours is an FLSA-Exempt Employee Entitled To? – from FMLA Insights
• “Independent Contractors” Are Again Front-And-Center – from Wage and Hour Laws Blog
• Federal/State Cooperation on Independent Contractor Issue – from Michael Fox’s Jottings By An Employer’s Lawyer
• Exotic Dancers Are Employees Not Independent Contractors; Entitled to Minimum Wages and Overtime – from Overtime Law Blog
• Fourth Circuit Rejects Defense Attempt to Decapitate FLSA Collective Action – from Fitzpatrick on Employment Law
• “What happened when I got audited for I-9s” – from HR Daily Report

Labor Relations

• NLRB Pushes Unions’ Destructive Agenda – from The New American
• American businesses fight back against union-rights notice rule – from Eric Meyer’s The Employer Handbook
• U.S. Chamber Sues NLRB to Block Notification Rule – from the U.S. Chamber of Commerce
• Bill Would Abolish the National Labor Relations Board – from Labor Relations Counsel
• How Does Latest NLRB Ruling Apply to Background Checks? – from Nick Fishman’s employeescreenIQ Blog

EEOC lawsuit is a reminder that, yes, businesses can still discriminate

Yesterday, I wrote about how far we’ve come since 1943. Today, I bring you another reminder of how far yet we have to go.

The EEOC has announced a lawsuit it filed against Bass Pro Outdoor World, LLC, for failing to hire African-American and Hispanic applicants for positions in its nationwide retail stores. According to the EEOC:

Bass Pro has been discriminating in its hiring since at least November 2005. The EEOC’s suit alleges that qualified African-Americans and Hispanics were routinely denied retail positions such as cashier, sales associate, team leader, supervisor, manager and other positions at many Bass Pro stores nationwide.

The lawsuit alleges that managers at Bass Pro stores in the Houston area, in Louisiana, and elsewhere made overtly racially derogatory remarks acknowledging the discriminatory practices, including that hiring black candidates did not fit the corporate profile….

The lawsuit also claims that Bass Pro unlawfully destroyed or failed to keep records and documents related to employment applications and internal discrimination complaints. Bass Pro punished employees who opposed the company’s unlawful practices, in some instances firing them or forcing them to resign.

A lawsuit is merely a set of yet-to-be-proven allegations. And, as we’ve seen recently, the EEOC can overreach from time to time. Regardless of how much truth is behind these allegations, this lawsuit serves as an excellent reminder that overt racism can still exist, and employers need to be diligent about combating discrimination of all kinds.

We’ve come a long way, baby

1943 was only 68 years ago, which, in the grand scheme of things, was not far off. Yet, consider how far we’ve come, not the least of which in the area of personal liberties and civil rights.

Case in point? The Walt Disney Family Museum recently released the 1943 Disney employee handbook, entitled “The Ropes at Disney.” The handbook included this pre-Title VII gem:

My legal tip of the day—do not have a workplace policy that makes benefits available only to men (or whites, or Americans, or Christians, or, well, you get the point).

Other highlights include various nods to World War II, such as a selective service policy, and the inclusion of a violation of the United States Espionage Act among the grounds for termination. The company’s military severance pay policy strikes me as particularly progressive, but I’ll admit my ignorance on whether that type of policy was prevalent during the war.

Huge thanks to Tim Eavenson, who first posted about this on his Current Employment blog.

Update: Phil Miles, on his Lawffice Space blog, shares his thoughts as well,

Ohio Supreme Court clears up “clarity” element of wrongful discharge tort

Last summer, an Ohio appellate court concluded that retaliation against employees who raise concerns over fire safety violates a clear public policy generally favoring fire safety in the workplace. Last week, the Ohio Supreme Court took away the employee’s victory, and provides ammunition for employers to seek dismissal of vague and nebulous public policy claims.

Before we get to the specifics of Dohme v. Eurand Am., Inc. (9/15/11) [pdf], some background. In Ohio, the termination of an at-will employee usually does not give rise to an action for damages. If, however, a discharge that jeopardizes a clear public policy articulated in the Ohio or United States Constitutions, federal or state statutes, administrative rules and regulations, or common law may create a cause of action for wrongful discharge in violation of that public policy.

In Dohme, the plaintiff merely claimed that his termination “jeopardized workplace safety.” The appellate court saved his claim by articulating a public policy favoring workplace fire safety, supported by citations to various state and federal statutes and regulations. The Supreme Court correctly concluded that is not a court’s job to engage in a search and rescue for a public policy to support a wrongful termination claim:

As the plaintiff, Dohme has the obligation to specify the sources of law that support the public policy he relies upon in his claim. Because Dohme did not back up his assertion of a public policy of workplace safety in his summary judgment documents with specific sources of law, he has not articulated the clarity element with specificity. Unless the plaintiff asserts a public policy and identifies federal or state constitutional provisions, statutes, regulations, or common law that support the policy, a court … may not fill in the blanks on its own….

It’s a big deal whenever the Ohio Supreme Court issues an employment law decision. It only happens once or twice a year. This case, however, really is not that big of a deal. This case is more about the proper role of courts in litigation and less about the wrongful discharge tort. It sends a message to plaintiffs that it is not the role of courts to make sense of their claims for them.

What would Jesus pay? Day rates under the FLSA

So I sat in church yesterday morning listening to the parable about the workers in the vineyard. Since I’m Jewish and haven’t spent a whole lot of time inside churches, it was the first time I had ever heard this story. For those, like me, who aren’t familiar with it, the story concerns a man who, after hiring various workers to tend to his vineyard for an agreed day’s wage, paid them each the same amount, regardless of how many hours they actually worked. Those hired in the morning and worked a full day received the same wage as those hired late in the day who only worked an hour. Upon hearing this story, I thought two things: 1) Jesus might have been the world’s first socialist, and 2) this story would make really good blog post. So as not to rankle any more feathers than I already have, I’m not touching number one with a ten-foot poll. But, I will take on number two.

There is nothing illegal about paying a “day rate”—that is, a flat sum for a day’s work, without regard to the number of hours worked. Under the Fair Labor Standards Act, a day rate simply affects how an employer must calculate an employee’s regular hourly rate of pay for a work week. An employer calculates the regular rate for an employee paid a day rate by totaling all the sums received at such day rates in the work week and dividing by the total hours actually worked. As with any non-exempt employee, that regular rate cannot fall below the minimum wage. And, if an employee paid a day rate works more than 40 hours in a given week, the employer must pay time-and-a-half on top of the regular rate for any hours worked over 40.

Simple enough, even for a Jewish boy like me.

WIRTW #193 (the “naked tender” edition)

When cash went missing from a Popeyes Chicken franchise, an employee with a criminal history offered to strip naked to prove that she was not hiding the money. An Ohio appellate court concluded that her willingness to take her clothes off prevented her from suing for invasion of privacy:

Based upon the undisputed evidence, appellant voluntarily undressed in front of an assistant manager, while in a private bathroom, in order to show that she did not have the missing money on her person. Nobody asked her to undress. Rather, appellant was instructed that she did not have to undress, and she insisted in an attempt to exonerate herself. The expectation of privacy appellant now seeks to protect was lost when she undressed on her own volition.

The case is Turner v. Shahed Enterprises [pdf].

And now for something completely different…

Thanks to Cleveland Plain Dealer reporter Marcia Pledger for talking to me about social media, the NLRB, and the Hispanics United case. Her story—National Labor Relations Board sees increase in social-media complaints: Companies need guidelines—ran on this morning’s front page.

(Also, if you’ve not yet voted for the LexisNexis Top 25 Labor & Employment Blogs, what are you waiting for? September 30 will be here before you know it.)

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

Discrimination

• Are pregnant employees entitled to reasonable accommodation? – from Robin Shea’s Employment and Labor Insider
• Ten Commandments of Religious Discrimination – from Manpower Employment Blawg
• This old mother****** may just have an age discrimination claim – from Eric Meyer’s The Employer Handbook Blog
• Fifth Circuit Recognizes Hostile Work Environment Claim Under Age Discrimination in Employment Act – from Russell Cawyer’s Texas Employment Law Update
• ADA Ruling: Employer Not Required to Create New Positions to Accommodate Employee with Broken Leg – from SmartHR
• Obama’s American Jobs Act to Prohibit Discrimination Against the Unemployed – from Phil Miles’s Lawffice Space
• Arbitrating employment discrimination claims in the collective bargaining context: the future is far from certain – from SCOTUSblog
• What does a picture perfect accommodation look like? – from Warren & Hays Employment Law Blog

Social Media & Workplace Technology

• I’m a “Mac” Girl! – from Smelling Some Roses (full disclosure, my wife’s blog)
• Client Service: Sometimes You Have to Be Available 24/7 – from Cordell Parvin Blog
• Distracted company drivers (using cell phones) are costly for employers – from Employment Law Bits
• Corporate Search Warrant Protocol: Email to Employees – from From the Sidebar
• Blocking social media sites won't stop “time thieves” – from The Globe and Mail
• Should Your Social Media and Business Systems Policy Prohibit or Limit Fantasy Football in the Workplace? – from Employment Matters Blog
• Flyers Cracking Down On “Business Hours” Tweets – from The 700 Level
• Facebook Will Now Have A “Director of Privacy” – from Kashmir Hill’s The Not-So Private Parts
• The ethics surrounding lawyers Facebook friending people in connection with litigation – from Work Matters

HR & Employee Relations

• How to Fire Someone Without Getting Sued – from i-Sight Investigation Software Blog
• Hot Topics in HR – from Stephanie Thomas’s The Proactive Employer Blog
• Calling All HR Experts: Help This “Evil” Company – from Michael Haberman’s Omega HR Solutions
• Is It Okay To @*^%$#@ Swear At Work? – from Workplace Diva
• How Much to Keep Your Mouth Shut – from Compensation Cafe
• Thanks for the Contract. Can You Tell Me What it Says? – from Tim Eavenson’s Current Employment
• Jury Waivers Anyone? – from Rob Radcliff’s Smooth Transitions

Wage & Hour

• Groupon Lawsuit: Guess the FLSA Infraction… – from The HR Capitalist, Kris Dunn
• What a “Racquet”—U.S. Open Umpires Sue For Overtime – from Wage & Hour—Development & Highlights
• How to Calculate Overtime for Salaried Employees Who Also Receive Commissions – from Wage & Hour Insights
• Trouble Wage & Hour Statistics from the Dept. of Labor – from Wisconsin Employment & Labor Law Blog

Labor Relations

• Get Your New NLRB Posting From … The NLRB – from Dan Schwartz’s Connecticut Employment Law Blog
• Coming to a Bulletin Board Near You on November 14th, Or Maybe Not… – from Michael Fox’s Jottings By An Employer’s Lawyer
• Is Protective Activity Protected? – from LaborRelated

Testing the legality of employee personality tests

“You have a nice personality,
but not for a human being.”
  –Henny Youngman

At BNET, Suzanne Lucas (aka the Evil HR Lady) reports that more than half (56%) of companies do some form of personality testing before hiring people. Before you can conclude whether these tests help businesses make good hiring decision, you have to answer a very important threshold question—are they legal?

Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test  Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

What does all this mean? The use of personality tests raise complex legal and business issues. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.