WIRTW #199 (the “Occupy” edition)

I spent the first half of last week in Denver. I took the opportunity of a free Monday morning to walk the city. In front of the Colorado State Capitol Building, I came across what, at the time, was the modest Occupy Denver rally:

What effect could these “Occupy” rallies have on your workplace? Here’s some thoughts:

• “Occupy Wall Street” Protests May Lead to Workplace Issues – from SHRM
• Occupy [Insert City] Is Coming—Are You Ready If Your Employees Get Involved? – from TLNT
• Can You Fire Someone for Participating in an “Occupy” Rally? from Mike Haberman’s Omega HR Solutions

Here’s the rest of what I read this week (and last week):

Discrimination

• Great moments in age discrimination law – from Walter Olson’s Overlawyered
• Are Gender Quotas The Key To Breaking the Glass Ceiling? – from Stephanie Thomas’s The Proactive Employer Blog
• Court Finds, in Pre-ADAA Case, that Employee with Diabetes Not Disabled – from Russell Cawyer’s Texas Employment Law Update
• Disability harassment and peanuts: Can't we all get along? – from John Holmquist’s Michigan Employment Law Connection
• What Is Color Discrimination And How Do I Prove It? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Sexual claims common in pressure-cooker restaurant world – from Eve Tahmincioglu at MSNBC.com
• Presidential Politics and Sex - A Reminder for Employers on Preventing Sexual Harassment – from Jason Shinn’s Michigan Employment Law Advisor
• Herman Cain, sexual harassment, and 10 lessons for employers – from Eric Meyer’s The Employer Handbook Blog
• The Allegations Against Herman Cain–What Would the EEOC Say? – from Joe’s HR and Benefits Blog
• Sexual Harassment 20 Years Later: Anniversary of Clarence Thomas Hearings Marks Time for Reflection – from Employment Lawyer Blog

Social Media & Workplace Technology

• Why Your Four-Month-Old Social Media Policy Is Obsolete – from Mark Herrmann at Above the Law
• 10 Scariest Enterprise Social Networking Mistakes – from InformationWeek
• How Much Facebook Policing is Too Much? – from Christopher McKinney’s Texas Employment Law Blog
• Half Of Young Professionals Value Facebook Access, Smartphone Options Over Salary: Report – from Fast Company
• Social Media Sites For Corporate Spying (Beyond The Obvious Ones) – from Kashmir Hill’s The Not-So Private Parts
• Apple Employee Kicked to the Curb for Facebook Post – from Lindsay Walker at i-Sight Investigation Software Blog
• Employees Use Social Media To Quit Their Jobs – from Minnesota Labor & Employment Law Blog
• When Plaintiffs Post About Their Case on Facebook – from Molly DiBianca’s Delaware Employment Law Blog
• My boss fired me over email, then refused to let me collect my personal belongings – from Ask a Manager

HR & Employee Relations

• Why do we hate us? Women prefer working for men, study says – from Robin Shea’s Employment and Labor Insider
• Hot Topic: Workplace Tebowing – from Philip Miles’s Lawffice Space
• Daylight Savings Time Change Means Tired Employees – from Workplace Diva
• TSA Is Firing The “Get Your Freak On, Girl” Baggage Screener – from The Not-So Private Parts
• What is the #1 way HR managers can keep employers out of trouble? Think like a lawyer! – from Heather Travar
• Trade Secret and Noncompete Survey – National Case Graph – from Fair Competition Law
• Breastfeeding At Work – from Evil HR Lady, Suzanne Lucas

Wage & Hour

• Starting Computers and Reading Email May Be Compensable Work – from Wage & Hour Insights
• Assistant Manager Exemption Case Goes For The Employer: A New Day Dawns! – from Wage & Hour - Development & Highlights
• No Room for FLSA Abuses at Hilton – from SmartHR
• Target Store Manager Fired for Working Off the Clock – from Texas Employer Handbook
• Supervisor’s Inadvisable Email Creates Basis for FMLA Claim – from FMLA Insights

Labor Relations

• RARE: The Capitalist Says This Union Member Deserves Better Treatment From Management… – from The HR Capitalist, Kris Dunn
• Two Economists Explain the NBA Lockout – from Grantland
• Call Reversed: Bryzgalov Media Ban Deemed Un-CBA’able – from The700Level.com
• Breakfast with the NLRB Region 34 Director – What’s New? – from Dan Schwartz’s Connecticut Employment Law Blog
• Social Media Spotlight – from Labor Relations Institute
• Social Media and the NLRA – from The L•E•Jer
• Arguments Begin In Legal Challenges to NLRB Posting Rule – from Employer Law Report
• Legal Challenge to NLRB’s Notice-Posting Rule Heats Up – from Labor Relations Today
• Bad teachers are impossible to fire – from LaborPains.org

Unsubstantiated allegations cannot create protected activity (at least according to one Ohio court)

In Veal v. Upreach LLC (10/20/11), an employee claimed that her employer terminated her in retaliation for her contacting the EEOC. The court of appeals, however, did not believe that the employee had presented any evidence in support of her claim that she had engaged in protected activity:

Appellant did not specifically allege or present evidence establishing that she was engaged in a protected activity…. Her complaint and memorandum opposing summary judgment merely alleged that she was terminated after Pitts [her direct supervisor] saw her reading a book on employee rights and overheard her placing a call to the Equal Employment Opportunity Commission during work hours. However, appellant offered nothing to substantiate these claims, nor did she explain how her allegations amounted to conduct protected….

It is refreshing to read an opinion in which a court refused to take a plaintiff merely at her word by requiring some corroboration before sending the case to a jury. Having said that, however, this case—at least in Ohio state courts—is very much the exception, not the rule.

Do you know what an employment lawsuit costs?

My manifesto—the Employer’s Bill of Rights—continues to generate links (thanks Kris Dunn and Walter Olson) and comments. One commenter asked the following:

Most employment cases would take less than a week to try? If Defendants simply tried all these frivolous cases instead of spending 18 mos. paying lawyers to do discovery only to settle later wouldn’t these cases dry up?

The reason why businesses fear terminating employees is because wrongful termination lawsuits are so expensive to litigate. According to a recent article at CIO.com (h/t: i-Sight Blog), a company should expect to spend between $50,000 and $250,000 dollars defending a lawsuit brought by an ex-employee. In my experience, that number is pretty accurate.

I believe that every lawsuit should settle. The two key considerations are when and for how much.

The only way to survive as an employer, though, is to draw a reasonable line in the sand on settlement value for a case and stick to it. If you are dead in the water, then you are better off settling early and not spending hundreds of thousands of dollars paying your lawyers to fight a lost cause. At the other extreme, though, if the employee’s case is meritless (or frivolous, depending on your viewpoint), then why do want to spend a dime towards settlement? Settling those cases will only paint your business as an easy mark, spurring copycat claims by other employees. For this latter category of claims, this only settlement is a voluntary dismissal, or, at most, a nuisance value.

The responsibility to fairly value cases, though, falls on both sides of the table. If the employee will not come to your line, then you must litigate, all the way through trial if necessary. Otherwise, you will lose all credibility and your corporate coffers will become an ATM machine for every terminated employee.

NLRB says a “f**ktard” is different than a “d*ck” under Section 7

A employee responded to a supervisor’s LinkedIn request with the following joke: “f**ktard.” More than a year later, the company discovered the “f**ktard” post while establishing its own corporate LinkedIn site. After the company fired the employee for a violation of its Electronic Communications Policy, the employee filed an unfair labor practice charge with the NLRB. He claimed that his employer did not fire him because of the LinkedIn post, but instead because of a discussion he had with some co-workers two months earlier about the company’s overtime practices.

In Schulte, Roth & Zabel (10/13/11) [pdf], the NLRB Office of General Counsel opined that the termination was lawful, and recommended the dismissal of the charge:

Moreover, the LinkedIn posting was not a pretextua1 reason for discharging the Charging Party; the Employer has demonstrated that it only discovered the posting in its April review of prior employee posts as part of its assessment of problems with its new LinkedIn page. Finally, no one contends that the Charging Party's posting in violation of the electronic usage policy—the stated reason for his discharge—was protected by Section 7.

Almost a year ago, the NLRB made a huge splash in the world of social media by issuing a complaint against a Connecticut ambulance company in an eerily similar case—the company fired an employee who called her boss a “d*ck” on her Facebook wall. At the time, many believed that the sky was falling, and that employers would be unable to regulate their employees’ use of social media inside and outside the workplace.

Is it possible, however, that the NLRB has been running a well-staged long con? Could the NLRB have enough marketing savvy to latch on to the hot issue invading the workplace, take an extreme position to raise awareness among non-unionized employees that they have rights under the National Labor Relations Act, and then slowly and quietly backtrack into a more reasonable position on a case-by-case basis?

If you compare where we were a year ago to where we are now, this appears to be the case. In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities? Well played, NLRB.

Equal opportunity harassment is not unlawful sexual harassment

For harassment to qualify as sexual harassment it must be because of sex. That means that the complained-of misconduct is of a sexual nature, or it singles out women differently than men. Non-sex-based conduct that targets women and men the same, no matter how harsh, is not sexual harassment. Case in point? Miceli v. Lakeland Automotive Corp. (N.J. App. Div. 10/19/11) [pdf].

During her tenure at Lakeland Automotive, Diana Miceli was its only female salesperson. Generally, she alleged that her manager abused, belittled, and harassed her. She admitted, however, that the manager treated the other salespeople (all male) the same way. Because the manager was an equal-opportunity abuser, the court upheld summary judgment:

The sales manager’s abrasiveness was not limited to Miceli. In Miceli’s deposition testimony she stated that “[e]veryone complained about [the sales manager].” Miceli admitted that the sales manager treated another male co-worker “extremely abusive[ly]” and “very condescending[ly].” …

[T]here is no evidence to suggest that the … conduct, although rude and obnoxious, was motivated by gender. “Personality conflicts, albeit severe, do not equate to” hostile work environment claims simply because the conflict is between a male and female employee.

There is no law against being an ass, just against being an ass based on some protected characteristic.

Are you checking in on your “sick” employees? Maybe you should be (or not)

According to a recent survey by careerbuilder.com, 29% of employees admit to playing hooky from work, taking “sick” days when they were really running errands or having fun with friends or family.

Despite this number, only 28% of businesses report that they  check on “ill” employees. Of that 28%:

• 69% require a doctor’s note
• 52% call the employee
• 19% had another employee call the employee
• 16% drove by the employee’s home

Let me suggest a radical alternative to going Inspector Clouseau on your employees. Get rid of sick days (and vacation days, and any other days off) and replace them with paid time off.

PTO is a flexible arrangement that provides the employee a set number of days off per year to be used for any reason (sick time, personal days, vacations, or anything else). Employees like PTO because of its flexibility. Employers like PTO because there is no time spent verifying the legitimacy of sick days and other time off. PTO, however, is not without its downside. For example, it encourages sick employees to come to work because they do not want to burn a paid day off they can use for a vacation later. Employers also lose control over how, why, and even when employees are off.

Depending on your employees’ work ethics and absentee records, and your management’s level of comfort with a more flexible leave policy, you might want to consider whether shifting to PTO makes sense for your business.

Substances abusers continue to confound employers

The EEOC announced that it has filed a lawsuit on behalf of a job applicant who lost his position after a pre-employment drug screen revealed methadone in his system:

According to the EEOC’s complaint, Craig Burns is a recovering drug addict who has been enrolled in a methadone treatment program since 2004. In January 2010, United Insurance offered Burns a position as an insurance agent in its Raleigh office, conditioned upon Burns’ passing a drug test. After Burns’ drug test showed the presence of methadone in his system, Burns submitted a letter to United Insurance from his treatment provider explaining that he was participating in supervised methadone treatment program and taking legally prescribed medication as part of the treatment. Upon receiving this information, United Insurance notified Burns that he was not eligible for hire and withdrew its offer of employment.

When dealing with addicts, the ADA requires employer to balance a fine line between not wanting substance abusers in the workplace and the need to accommodate addiction as a disability. This balance comes from the ADA’s lack of protection for current drug and alcohol abuse, but its ongoing protection of addiction as a disability. From the EEOC:

The ADA may protect a “qualified” alcoholic who can meet the definition of “disability.” The ADA does not protect an individual who currently engages in the illegal use of drugs, but may protect a recovered drug addict who is no longer engaging in the illegal use of drugs, who can meet the other requirements of the definition of “disability,” and who is “qualified.”

Even without these legal complications, dealing with employees who have a substance problem is never easy. Because of the layer of complexity added by the ADA, you should not tread in these waters without guidance from employment counsel.