Stereotypes

On last Sunday’s episode of HBO’s Boardwalk Empire, Chalky White, a jailed African-American bootlegger, comforted his wife with the following information about his attorney: “He a Hebrew gentleman.” Lest you think that such observations were left in the 1920s, I once had a client I was defending in a race harassment case refer to me as his “Jew lawyer.”

I relay these tales (both real and fictional) because of a story on Businessweek.com about a national origin discrimination case recently filed by the EEOC against a Colorado hotel. The lawsuit claims that hotel ownership directed management “to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder.” The lawsuit further claims that management told one of the fired employees that ownership did not want to employee American or Caucasian workers “because it was their impression that such workers are lazy.”

There is no hiding that stereotypes—both positive and negative— exist. To some degree we all harbor them (and anyone who tells you differently is full of it). The better job you do of insulating your personnel decisions from these stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

WIRTW #196 (the “atonement” edition)

As I’ve mentioned in this space before, my family is of mixed religion. I’m Jewish and my wife is Catholic. I offer this information because tonight at sundown begins Yom Kippur, the Jewish day of atonement. Unlike Catholics, who confess their sins every week, we Jews ask for God’s forgiveness in a lump sum, once per year on Yom Kippur.

While this comparison is an over-simplification, it nevertheless serves as a jumping-off point to offer my apologies for any posts I’ve written over the past year that might have offended. I do not offer this apology for my viewpoints and opinions—for which I would never apologize or shy away from. Instead, I apologize if language and word choice caught some of my readers off-guard. Employment law can be dirty and offensive. For me, it’s part of what makes it interesting. It is not, however, everyone’s cup of tea.

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

Discrimination

• Employers, don’t be overzealous with your wellness. Beware of the ADA and everything else – from Robin Shea’s Employment and Labor Insider
• Criminal Background Checks and Avoiding Discriminatory Hiring Practices – from i-Sight Investigation Software Blog
• What Does “Similarly Situated” Really Mean? – from Stephanie Thomas’s The Proactive Employer Blog
• Employee drug testing and bashful bladders; it’s a wicked pissah! – from Eric Meyer’s The Employer Handbook Blog
• Attorneys Dancing Around Impact of Gender Identity Discrimination Law – from Dan Schwartz’s Connecticut Employment Law Blog
• Disparate Impact and the Non-Traditional Plaintiff – from Michael Fox’s Jottings By An Employer’s Lawyer
• Supreme Court Weighs Rights Of Parochial-School Teachers – from NPR
• EEOC vs. the ministerial exception – from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• What Prospective Employers Hope To See In Your Facebook Account: Creativity, Well-Roundedness, & “Chastity” – from Kashmir Hill’s The Not-So Private Parts
• A Canadian Perspective on Social Media and Concerted Activity – from Fitzpatrick on Employment Law
• Attorneys’ Duties Regarding Employee Emails – from Phil Miles’s Lawffice Space
• Privacy and company email use—what can employees expect? – from Employment Law Bits
• Employee Privacy 3—Social Media – from Heather Bussing at HR Examiner
• You Are Your Company’s Biggest Security Risk – from Above the Law
• Employer did not violate employee’s privacy by accessing personal laptop – from Internet Cases

HR & Employee Relations

• On WWE and Organized Labor – from Grantland
• Reasons to Terminate: More Is Not Merrier – from Molly DiBianca’s Delaware Employment Law Blog
• The DNA of HR Decisions: Why Documentation is Important – from Michael Haberman’s Omega HR Solutions
• Scratching My Head – from KnowHR Blog
• The “exit parade” as a worker termination protocol – from David Yamada’s Minding the Workplace
• Keep Your Employees off the Playground: Preventing and Dealing with Workplace Bullying – from Workplace Insights
• Do You Regularly “Fit Test” Your Employees? – from Ann Bares’s Compensation Force

Wage & Hour

• Ohio Minimum Wage Increase for 1/1/12 – from THRD’s Blog
• DOL/IRS Collaboration Memo Makes For Interesting Reading – from Wage and Hour Laws Blog
• In “Salary Misclassification” Case, Unpaid OT Calculated at Time and a Half Rate, Not FWW – from Overtime Law Blog
• Do Employers Have to Pay for Travel Time? – from Wage & Hour Insights

Mourning Steve Jobs

I never knew Steve Jobs, but he's always been a part of my life—from the Apple IIe on which I learned to program BASIC three decades ago, to the iPad on which I'm typing this post, and all the life-altering products I've owned in between. And, while my kids don't know it, he's been an important part of their lives too, through the wonderful characters he made possible with Pixar.

I have little to add to what others have already eloquently said. The world has lost a great visionary—our generation's Edison—whose impact will be felt for years to come, yet whose import will not fully be known for centuries. Instead of imparting some great words of wisdom, I'll let Steve speak for himself, via his 2005 Stanford commencement address, given shortly after his cancer diagnosis.



Rest in peace. Heaven will be a cooler place with you there.

BREAKING: NLRB postpones posting of notice of employee rights

Don’t rush to post the NLRB’s latest missive advising union and non-union employees of their rights under federal labor laws.

From the NLRB:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

I wonder if the outcry from business groups, coupled with a pending lawsuit to block the workplace posting, has anything to do with the NLRB’s delay?

Betting on a lawsuit

There have been a lot of bad bets made over time. For example, two years ago I bet on the World Series and, after the Phillies lost, had to painfully write a blog post praising the Yankees. On The Office last week, newly-appointed regional manager Andy Bernard bet his staff a butt tattoo that they couldn’t reach an unheard of sales quota. Perhaps the most famous pop culture example of a bet is Seinfeld’s contest, where the four bet on who would be the “master of their domain.”

Then, there’s this gem, courtesy of the Des Moines Register:

A Bettendorf businessman, branded as the “boss from hell” by some of his employees, offered prizes to workers who could predict which of them would next be fired…. William Ernst, the owner of a Bettendorf-based chain of convenience stores called QC Mart, sent all of his employees a memo in March, outlining a contest in which the workers were encouraged to participate. The memo read: “New Contest – Guess The Next Cashier Who Will Be Fired!!! … To win our game, write on a piece of paper the name of the next cashier you believe will be fired. If the name in your envelope has the right answer, you will win $10 CASH.”

An administrative law judge sided with an ex-employee in her unemployment hearing, writing about the “egregious and deplorable” contest: “The employer’s actions have clearly created a hostile work environment by suggesting its employees turn on each other for a minimal monetary prize…. This was an intolerable and detrimental work environment.”

To be fair, in my career I’ve seen a lot worse work environments. For example, I vividly recall a cake in likeness of a vagina, iced with homophobic epithets, presented to an employee as a challenge to his perceived lack of manliness. Notwithstanding, I’m not sure I’d ever recommend a firing contest as a form of employee motivation.

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]