Does the ADA protect the morbidly obese?

Two years ago, I asked whether “obese” qualified as a new protected class under the ADAAA. According to the EEOC in a newly filed lawsuit, the answer is an unequivocal “yes.”

The Houston Chronicle reports that the EEOC has filed suit against BAE Systems on behalf of Ronald Kratz II, claiming that the 680 pound man was fired because of his obesity. For his part, Kratz claims he was specifically told “he was being terminated because company officials thought he weighed too much”—the most direct of direct evidence, provided that the ADA protects obesity as a disability.

In its complaint, the EEOC alleges:

   12. At the time of his discharge, Kratz was morbidly obese. Kratz’s morbid obesity substantially limits him in one or more major life activities. Morbid obesity is a disability under the ADAAA.

   13. BAE regarded Kratz’s morbid obesity as substantially limiting him in one or more major life activities.

The leading case in the 6th Circuit on the treatment of morbid obesity under the ADA is EEOC v. Watkins Motor Lines (2006), which concluded that morbid obesity must be the result of a physiological condition to qualify as an ADA-protected disability.

Later cases, decided under the 2009 ADAAA, however, have called that holding into question. For example, Lowe v. American Eurocopter, LLC (N.D. Miss. 2010) concluded that because of how broadly the ADAAA defines both major life activities for purposes of an actual disability, and “regarded as having” a disability, the ADAAA covers morbid obesity irrespective of whether it is caused by a physiological condition.

As much as it pains me to say it, the Lowe court might be right under the current law. The ADA (as enlarged by the ADAAA) is now so expansive in its coverage that morbid obesity might be covered, even without an underlying physiological cause. Employers, chew on this morsel of information as employees get fat on ADA claims.

Hot dog! Another social media decision from the NLRB (and employers should pay attention)

A few weeks ago, an NLRB Administrative Law Judge issued the agency’s first-ever decision debating the legalities of terminating employees for social media activities under federal labor laws. Karl Knauz Motors, Inc. (9/28/11) [pdf] is the second. Following Knauz Motors, we are starting to receive some clarity as to what is (and, perhaps more importantly, what is not) protected online speech under the National Labor Relations Act, and how far employers’ policies can go in trying to restrict this speech. 

This case concerns two series of Facebook posts by Robert Becker, a salesperson at Knauz Motors’s BMW dealership, of two separate incidents.

In the first, Becker criticized a dealership promotional event at which hot dogs were passed out. Becker posted photos on his personal Facebook wall of the hot dog cart, along with sales people holding hot dogs, bags of Doritos, and bottles of water. He also posted the following a comment on the dealership’s event page criticizing the catering as beneath BMW’s standards. In the second, Becker posted a photograph on his Facebook wall of a car driven into a pond by the 13-year-old son of a customer of the adjacent Knauz-owned Land Rover dealership.

The ALJ concluded that the posts related to the BMW promotional event were protected, concerted activities for which Becker could not be disciplined or terminated—Becker, a commissioned salesperson, believed that the budget-conscious food choices could negatively impact sales and, therefore, his earnings. He had posted to enlist the support of his fellow employees as an outgrowth of a prior in-person conversation about the same issue. Conversely, the post related to the Land Rover incident was not protected—Becker posted it without discussion with other employees and without connection to any terms and conditions of employment.

Ultimately, the ALJ concluded that Knauz lawfully terminated Becker because of the Land Rover post, and not because of the hot dog posts.

Perhaps of greater interest is the portion of the opinion concerning the dealership’s employee handbook. The ALJ concluded that the following conduct policies in the handbook were overly broad:

• Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
• Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.”
• Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

According to the ALJ:

If employees complied with the dictates of these restrictions, they would not be able to discuss their working conditions with union representatives, lawyers, or Board agents.

While none of the at-issue policies was a “social media” policy, employers need to understand that the NLRB could take issue with any policy that might infringe on employees’ rights to engage in protected, concerted activities. This means that businesses must walk a fine legal line in drafting social media and other communication policies, which must be narrowly drafted to ensure that employees cannot reasonably perceive that they are limited in how they can discuss their terms and conditions of employment. In simpler terms, employers need to think twice before painting employee communication restrictions with a broad brush.

(If you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

[Hat tip: LaborRelated and Lawffice Space]

WIRTW #195 (the “pay equity” edition)

On Tuesday, I was the special guest on the Lunch as the Compensation Café roundtable. The topic: Pay Equity—Not Just for Women! Thanks to my hosts—Ann Bares (from Compensation Force) , Stephanie Thomas (from The Proactive Employer Blog), and Jim Brennan—for an engaging conversation about the importance of compensation self-audits. For those who missed it, the reply is available at focus.com.

Also, today is the last day to vote for the LexisNexis Top 25 Labor & Employment Blogs of 2011. Thanks to everyone who’s voted for any of these deserving blogs.

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

Discrimination

• Is This the Right Way to Help the Unemployed? – from You’re the Boss Blog
• Full Employment, for Lawyers – from National Review Online
• Business Case for Proactive EEO Compliance – from Stephanie Thomas’s The Proactive Employer Blog
• Suit By EEOC Not Covered Under EPLI Policy – from Michael Fox’s Jottings By An Employer’s Lawyer
• Hot Dog! EEOC accuses eatery of same-sex sexual harassment – from Eric Meyer’s The Employer Handbook Blog
• Accommodating Religion: NYC Adopts Definitions of Undue Hardship and Reasonable Accommodation for Employees – from The L•E•Jer
• How to Protect Your Business Against Discrimination Lawsuits – from CPEhr

Social Media & Workplace Technology

• Social-Media Policies: Ethical Issues for Court Employees – from Molly DiBianca’s Delaware Employment Law Blog
• Facebook’s Timeline Will Impact Your Career – from Harvard Business Review
• Facebook Keeps A History Of Everyone Who Has Ever Poked You, Along With A Lot Of Other Data – from Kashmir Hill’s The Not-So Private Parts
• Text Message, Email, and Social Media Authentication – from Phil Miles’s Lawffice Space
• Firings, Discipline Over Facebook Posts Leads To Surge In Legal Disputes – from Business Insider

HR & Employee Relations

• Employment at Will: The Most Misunderstood Principle in the Workplace – from TLNT
• 5 Investigation Interview Mistakes to Steer Clear Of – from i-Sight Investigation Software Blog
• Choosing the Investigator – from Russell Cawyer’s Texas Employment Law Update
• HR Related Musings: Layoffs and Competition – from Mike Haberman’s Omega HR Solutions
• Bad Reward Decisions & Layoffs – from Ann Bares’s Compensation Force
• How Paying Departing Employees to “Tend the Garden” Can Benefit an Employer's Business – from Unfair Competition & Trade Secrets Counsel
• No Smokers Allowed – from Rob Radcliff’s Smooth Transitions
• Employment Documents in Plain English – A Primer – from Tim Eavenson’s Current Employment
• The Top Office Pet Peeves Of Workers Around the World – from Workplace Diva

Wage & Hour

• Employers, don’t be too quick to take that IRS “independent contractor” deal – from Robin Shea’s Employment and Labor Insider
• Are Employers Rolling the Dice Under the IRS’s Employee/Independent Contractor Reclassification Program? – from Jason Shinn’s Michigan Employment Law Advisor
• Smart Phones and The DOL: Employers Better Wise Up – from Wage & Hour - Development & Highlights
• Phone conversation with boss counted as working off the clock – from HR Cafe
• Continuous Confusion: Defining the Workday in the Modern Economy – from The Wage and Hour Litigation Blog
• Some Realities of Unpaid Overtime Claims – from Portland Oregon Employment Lawyer
• Failing to Return Employee’s Phone Calls May Be FMLA Retaliation – from FMLA Insights
• Curbing FMLA Abuse: Policies Restricting an Employee’s Travel While on Paid Sick Leave – from Pennsylvania Labor and Employment Blog
• “Out of Control” Employee Screaming Profanities Loses out on COBRA Due to Gross Misconduct – from SmartHR

Labor Relations

• What? NLRB overrules employee vote to boot union – from HR Daily Report
• AFL-CIO v. American Bar Association on LMRDA Disclosure Rules – from Workplace Prof Blog

KJK scores huge victory in wage and hour class action lawsuit

Class certification is the seminal moment in wage and hour cases. The decision to certify a class will determine whether the case has the potential to be bet-the-company litigation, or merely litigation with a few discontented employees. Wal-Mart v. Dukes significantly altered the rules by appropriately shifting the focus in class actions to the existence (or lack thereof) of individual issues that distinguish and separate class members from each other. Even before the Supreme Court decided Dukes, however, courts were tuned-in to this issue. For example, consider Mickle v. Wellman Products, LLC, in which we scored a tremendous victory for our client by winning the reversal of the trial court’s class certification.

The plaintiffs in Mickle, four ex-employees, sought the certification of a class of employees for alleged unpaid wages. The issue: unpaid “gap time”—the time between when the employees clocked in/out and started/ended their work days.

To avoid any editorialization of my own case, I’m turning over the remainder of this post to the words of the Oklahoma Court of Appeals.

The Court described the challenged pay practice:

The hand scanned times are subject to “ETime Punch Rounding.” Under the rounding system, if an employee scans in prior to the start time of his or her shift, the employee’s start time is rounded to the beginning of the shift. If an employee scans after the start of his or her shift time, the rounding defaults the employee’s start time to the next quarter hour increment. At the end of the shift, if an employee scans out early, the employee’s end time is rounded to the prior quarter hour increment. If an employee scans out late, after the end of his or her shift, the employee’s end time is rounded the prior quarter hour increment.

The hand scanned times are not the sole method used by Wellman to determine payroll. Before an employee’s time is submitted to payroll, each employee’s default rounded ETime is reviewed and manually edited by a Lead to reflect the time an employee actually worked. The evidence submitted by Wellman demonstrated the Leads sometimes manually rounded punch time to the benefit of an employee. The ETime records are then submitted to payroll for editing and for use in creating weekly pay.

The plaintiffs alleged:

ETime always rounded in Wellman’s favor and the times recorded by the hand scanner and the rounding system provided common proof of all hourly employees’ uncompensated work during the time period between the hand scan and the shift buzzer.

The company argued:

[C]ertain proposed class members may not have performed work-related activities during the gap period. At the hearing, several employees … testified that during the gap periods, they may socialize with other employees, eat a meal in the break room, wash their hands, shower and change clothes, smoke cigarettes, or read the newspaper. These employees also testified that ten minutes before the buzzer sounded at the end of their shift, they would clean-up their work site in preparation for the next shift. The time record evidence shows routine individual adjustment of pay time both ways for a variety of reasons, pursuant to the gap period policy.

The Court held:

[T]he common issue of an allegedly flawed time-keeping method is “swamped by individual factual inquiries into the activities of each employee during the gap periods.” … Because Wellman did not exclusively rely on the hand scanned times and the ETime punch rounding method to determine payroll and each claim for unpaid overtime work must be examined to determine if such work was authorized, we hold individualized proof concerning each hourly employee’s activities during the gap period is indispensable to each employee’s claim….

[W]e conclude issues as to whether each employee was engaged in work or non-work activities during the gap period are too individualized to warrant class treatment for all hourly employees….

The full opinion of the Oklahoma Court of Appeals, which the Oklahoma Supreme Court has declined to review, is available for download from the National Chamber Litigation Center.

When you care enough to send the very best ... to the unemployed

Hallmark—the purveyor of greeting cards for occasions such as miscarriages and cancer—has tapped into a new market with a line of cards for the unemployed. Some of the gems include:

• When things are looking kinda gloomy, do as I do. Stare into the heavens, breathe deeply, and say … Give Me a %#!@$!! Break!!!
• It’s hard to know what to say at a sensitive time like this. … How about, “I’m buying!”
• One day, you’ll look back on all this with the wisdom that distance bestows, and you’ll say … “Wow, that sucked.”
• Don’t think of it as losing your job. … Think of it as a time-out between stupid bosses.

According to the Department of Labor, our national unemployment rate is holding steady at 9.1%, representing 14 million people out of work. I’m guessing business is booming for Hallmark.

[Hat tip: Eve Tahmincioglu]

Let employees have their say when disciplining

When you counsel or discipline employees, do you give them a chance to have their say? For example, does your written discipline or performance review forms provide space for employees to explain their side of the story? If your answer is akin to, “It won’t change the outcome, so why bother?” consider Cozzuli v. Sandridge Food Corp. (Ohio Ct. App. 9/26/11) [pdf].

Sandridge Food fired Cozzuli after several years of poor reviews and performance problems. In affirming the trial court’s grant of summary judgment to the employer, the appellate court relied on the fact that “Cozzuli signed his performance review and opted not to write any comments in the ‘Employee Comments’ portion of the paperwork.” The court did not believe it was credible for an employee to use performance critiques, about which he had not taken issue during his employment, as evidence of discrimination afterwards.

In depositions, I always make sure the employee confirm that the employer provided the opportunity to make written comments about discipline, and that they chose not to do so. It is powerful evidence that—as Cozzuli illustrates—can help obtaining a dismissal.

Dear Congress: Can you fix the economy before you focus on Facebook?

Two related stories caught my eye last week:

• Are Fewer Employers Checking Facebook Before Hiring? – from Molly DiBianca’s Delaware Employment Law Blog
• Senators Worried Job Seekers “Unfairly Harmed” By Social Media Background Checks – from Kashmir Hill at Forbes

Here’s the gist of these stories. According to a recent study by SHRM, fewer employers are using social media websites to vet job candidates now than three years ago:

Has your organization used social networking websites to screen job candidates at any point in the hiring process, or does it plan to do so?	2011	2008
No, and we do not plan to	67%	67%
Yes	18%	13%
Yes, previously, but do not plan to again	4%	2%
No, but plan to	11%	18%

Despite this relatively low use, certain Senators on Capitol Hill have turned their attention to employers’ Facebooking of job candidates. According to Kashmir Hill’s article, Senators Al Franken and Dick Blumenthal have launched a Congressional inquiry on the issue of whether “a job applicant could be unfairly harmed” by the use of social media in the hiring process.

Let me get this straight. Our country is nearly bankrupt, and Congress is spending its time worrying about whether John Doe job applicant can’t get a job because he recklessly posts public pictures of his debaucherous weekend binge, or comments trashing his last boss. People who are searching for a job need to take ownership of their online image, and realize that information that is publicly available is fair game for a potential employer to reach conclusions about your fitness as a future employee. Is it any wonder the Congressional approval rating has reached at an all-time low of 12%?

Another statistic from this SHRM study caught my eye. Only 15% of businesses have any kind of formal policy addressing the use of social media sites to screen job applicants. This number is disturbing. Even if your business falls in the majority that have not used, and do not plan to use, social media to vet applicants, don’t you think you should tell those doing the hiring not to Facebook people? Left to their own devices, curiosity will get the better of people, and we all know what curiosity did to the proverbial cat. You are doing your business a grave disservice if you do not have a social media policy addressing these issues, and if you don’t train your employees on what this policy means.

You can read more about the use social media in the hiring process in Think Before You Click: Strategies for Managing Social Media in the Workplace.