Best of 2011: Numbers 8 and 7

   8. What does St. Patrick have to do with human resources?

Legend tells us that in the 5th century, St. Patrick banished all snakes from Ireland. In honor of the day that celebrates Ireland’s patron saint, consider banishing the following metaphorical snakes from your HR practices.

   7. How do other cultures handle HR?

Monsters, Inc., holds a special place in my heart. It was the first movie my wife and I saw together. As an employment lawyer, then, the following sign at the Mike & Sully meet and greet at Disney’s Hollywood Studios struck exactly the right note…. Interestingly, the last bullet point shows that even Monstropolis sees the importance of covering social media in workplace policies.

Best of 2011: Numbers 10 and 9

   10. Unstable employees, direct threats, and the ADA

Employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

   9. Wal-Mart v. Dukes does not equal barefoot and pregnant

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson…. So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

BREAKING NEWS: NLRB delays employee rights posting requirement until April 30

From the NLRB:

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

Merry Christmas!

WIRTW #206 (the “…and a happy New Year” edition)

Today marks the Blog’s last original post of 2011 (if you count a weekly summary as original content). Next week, I will run the 4th annual year-end countdown. In past years, I’ve counted down the top 10 labor and employment stories of that year. This year, I’ll be doing it a little differently. I’ll be recapping what I consider to be the best posts of 2011. Inevitably, we’ll hit some of the year’s biggest stories (social media, Wal-Mart v. Dukes, the EEOC, the ADA) too. What you’ll read, however, are the 10 pots of which I am the most proud from the past year, which will include some (but not all) of the year’s most newsworthy and important stories.

Everyone have a Merry Christmas, Happy Hanukkah, celebratory something else, and a safe New Year. I’ll be back on Tuesday, January 3, with brand new content for 2012.

In the meantime, if you want to give me an early Christmas present, cast your vote for the ABA Journal’s Blawg 100 (here to register, and here to vote). Thanks for your support.

Here’s what I read this week:

Discrimination

• Nothing good comes of forcing employees to go to brothels – from Eric Meyer’s The Employer Handbook Blog
• A GINA tip – from Warren & Hays Employment Law Blog
• Tempest in a flu shot: sex discrimination and religious preference – from John Holmquist’s Michigan Employment Law Connection
• Court Rules Severe Obesity Is a Disability Under the ADA – from Trade Secret / Noncompete Blog
• EEOC Performance in 2011, What it Could Mean for Employers in 2012 – from Employer Defense Law Blog

Social Media & Workplace Technology

• How to use Facebook Timeline – from The Verge
• Social Media E-Discovery: a New World of Proof – from i-Sight Investigation Software Blog
• Social Media: When Sociology and Technology Collide – from Blogging4Jobs
• Social-Media Woes for School Districts – from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Discovery Odds Dropping in Pennsylvania – from Phil Miles’s Lawffice Space
• Another TSA Officer Leaves Personalized Note In Passenger’s Bag (After Finding Marijuana) – from Kashmir Hill’s The Not-So Private Parts
• Tis the Season to Tech the Workplace Halls - Managing Employee Owned Technology Devices – from Jason Shinn’s Michigan Employment Law Advisor
• Smartphones Stressing Employees Out, Employers Encouraging Smartphones – from Workplace Diva

HR & Employee Relations

• Don’t let that employee probationary period lull you into a false sense of security – from Robin Shea’s Employment and Labor Insider
• How to handle office party embarrassments – from Evil HR Lady, Suzanne Lucas
• Don’t Assume an Employee Knows the Rules – from Mike Haberman’s Omega HR Solutions
• Millennials don’t want 9 to 5 – from Gruntled Employees
• Summing Up 2011: Everything is Amazing and Nobody is Happy – from TLNT
• Right On, Jeb – from The ChamberPost
• Who Owns Your Customer Relationships: Your Salespeople or Your Company? – from Harvard Business Review

Wage & Hour

• The Danger In Docking The Pay of Exempt Employees – from Wage & Hour - Development & Highlights
• Minimum Wage, Overtime Requirements Extended to In-Home Care Workers in DOL Proposed Rule – from Wage & Hour Counsel
• Seventh Circuit Finds Employee’s “Work"”Not Compensable Due To Lack Of Employer Knowledge – from Wage and Hour Law Update
• Podcast: How Do Employers Calculate FMLA Leave Around the Holidays? – from FMLA Insights

Labor Relations

• ALJ Again Rules in Favor of Hospital in Closely Watched Flu Shot Case – from Labor Relations Counsel
• Obama NLRB Appointees Could Run Into Congressional Buzzsaw – from Joe’s HR and Benefits Blog
• Department of Interior at Odds With National Labor Relations Board Over NLRA Application to Indian Tribes – from Seth Borden’s Labor Relations Today

The NLRB flexes its rulemaking authority … and business groups flex right back

Yesterday, the NLRB announced that it had formally adopted a final rule amending its election case procedures. The rule is set to take effect April 30, 2012. Among other changes, this new rule significantly shortens the time between when a representation petition is filed and an election is held. For this reason, the rule is known as the “ambush election” rule. According to the NLRB, this new rule is intended to “reduce unnecessary litigation and delays.” In reality, it’s an alternate route to achieve higher union representation rates following Congress’s failure to pass the Employee Free Choice Act.

As quickly as the NLRB announced its adoption of the final rule, the U.S. Chamber of Commerce announced that it had filed a lawsuit in federal court seeking to block them. From the Chamber’s press release announcing the filing:

The Chamber’s lawsuit explains that the National Labor Relations Board’s final “ambush election rule” imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize. The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections.

This lawsuit joins two others that challenge a different aspect of the NLRB’s claimed rulemaking authority—its workplace rights poster, which is scheduled to become mandatory on January 31, 2012. In one of those cases, the assigned federal judge has asked the NLRB to delay its posting requirement to provide her more time to consider the challenge before her.

These are important issues that will affect all private sector employers, and which bear watching as they work their way through the court system. (Of course, if the Republican take back the White House in 2012, all of this administrative wrangling likely becomes moot).

A Hanukkah lesson for employers

The story of Hanukkah tells us that in 165 B.C., the Maccabees led a successful revolt against the Greeks, who had invaded Jerusalem and outlawed Judaism. When the Maccabees rededicated the Holy Temple after expelling the Greeks, they only located enough olive oil for the Temple’s menorah to burn for one night. That oil, however, burned for eight nights, the time needed to prepare a fresh supply—the miracle of Hanukkah.

I’ve been thinking of a way to tie this story to the workplace and impart a lesson to employers. The story of Hanukkah is one of perseverance, courage, and fighting for one’s beliefs. Employers are under assault from all fronts—lawsuits from disgruntled employees, overly zealous regulatory agencies and their overly burdensome regulations, and courts that can lack sufficient resources to address these issues properly. It’s easy for businesses throw in the towel, such as by relocating operations out of the country or by paying ransoms to settle meritless lawsuits. Perhaps the lesson here is to simply hold firm.

Happy Hanukkah.

Sometimes it’s not all about the Benjamins: reinstatement in lieu of front pay

James McKelvey, an Army veteran, lost his right hand and suffered other serious injuries trying to defuse a roadside bomb in Iraq. As if his physical injuries were not enough for him to endure, upon returning home to a civilian job in the Army, his co-workers subjected him to more than a year of disability-related harassment. For example, they repeatedly called him “lefty” and “cripple.” He resigned, believing the work environment was so hostile that he had no realistic option but to quit. He also sued for constructive discharge, for which a jury awarded him nearly $4.4 million in front pay.

In McKelvey v. Secretary of the United States Army (6th Cir. 12/14/11) [pdf], the court concluded that the trial judge was correct by taking the monetary verdict away, and instead ordering that McKelvey return to his Army job (albeit with improved working conditions and higher pay):

McKelvey can be reinstated to work at the armory quickly, without disrupting operations and without displacing another employee. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors. McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projections about his earning capacity and about employment decisions decades into the future.

In this case, reinstatement was the court’s decision, not the employer’s. Nevertheless, it raises an interesting point. If you’ve been sued, and you’re reasonably confident that your company was in the wrong, and you are comfortable reintegrating a litigant into your workplace, don’t fail to consider an offer to bring the employee back to work. It’s called an “unconditional offer of reinstatement,” and when used correctly (with the right employee and in the right case), it is an extremely powerful tool. The key word is “unconditional.” The offer must be to the same or equal position, with equal (or better) pay and benefits, and with full back pay and restoration of other lost benefits. The benefits are several. Such an offer cuts of the employee’s entitlement to back pay or front pay, in addition to severely hampering one’s ability to prove a right to punitive damages.

Consider adding the “unconditional offer of reinstatement” to your quiver of litigation tools. It just might rescue a good employee from the litigation scrapheap, and save you a few dollars too.