What Dr. King fought for … and what he didn’t

What MLK fought for…

From abcnews.com, discussing the resolution of a story on which I reported last month:

The Ohio Civil Rights Commission dismissed a landlord’s claim today that a “white only” pool sign was simply an historical antique sign and ruled that it was discriminatory…. The five-member commission decided unanimously on the matter, upholding an earlier ruling…. [According to the landlord,] “If I have to stick up for my white rights, I have to stick up for my white rights. It goes both ways.”

What MLK did not fight for…

From Brown v. Village of Woodmere [pdf], a race discrimination case decided last week by the Cuyahoga County Court of Appeals:

Brown further admitted that he was aware of the village’s electronic use policy and his use of the sergeant’s computer was in violation of the policy…. The mayor testified that she terminated Brown after she viewed the pornographic images that were on the sergeant’s computer; the images included pictures of Brown’s genitalia…. Under the circumstances presented in this case, summary judgment on Brown’s racial discrimination claim was entirely appropriate

Any questions?

WIRTW #208 (the “manners” edition)

Next week, my daughter’s kindergarten class will hold its second “manners lunch.” It is a formal lunch, with formal place settings, at which the children learn proper table manners. I hope that she takes these manners with her for the rest of her life. Lately, however, I’ve been reminded that not everyone exhibits proper manners. As a courtesy to my opposing counsel in a case, I notified him that I would be bringing a college student, shadowing at my firm, to an upcoming pretrial conference. Believe it or not, he objected:

Jon:

We do not agree with your intention to bring an outsider to the status conference tomorrow. The last thing we need is a distraction, especially since we are only 30 days from trial and the parties need to conduct candid discussions concerning this matter. Only trial counsel and parties should be at the conference.

Regards,

Am I off my rocker for being upset about this discourtesy? Does anyone see any harm in a college student, wanting to learn a little about what a litigator does, sitting quietly in a federal courthouse conference room observing a pretrial?

Anyhow, here’s what I read this week:

Discrimination

• God Has No Place in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs
• Can ADA-disabled employees be required to work overtime? – from Eric Meyer’s The Employer Handbook Blog
• Disability Discrimination Law Is a Mess in More Than Ohio – from Michael Fox’s Jottings By An Employer’s Lawyer
• “But it’s unfair to other employees” not an excuse when it comes to reasonable accommodations – from Warren & Hays Employment Law Blog
• For Many, “It’s That Time of Year”: Affirmative Action Plan (AAP) Revision – from Employer Law Report
• Will I Be Taxed on My Employment Law Settlement? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Too Smart to Hire? – from Phil Miles’s Lawffice Space
• Papa John’s Employee Calls Woman “Lady Chinky Eyes” on Receipt – from ABC News

Social Media & Workplace Technology

• Create a Social Media Policy to Protect Your Business and Employer Brand – from Workplace Insights
• 7 signs we’re living in the post-privacy era – from MSNBC’s Techolog
• Learn How to Gather Social Media Evidence That Holds Up in Court – from i-Sight Investigation Software Blog
• When an Employer Posts to Employee’s Facebook and Twitter Accounts, Bad Things Happen – from Molly DiBianca’s Delaware Employment Law Blog
• Top Ten Social Media Pitfalls to Watch out For – from Meaghan Edelstein at Social Axcess
• Do Active Social Media Users Make Less Ethical Employees? – from Workplace Diva

HR & Employee Relations

• Hiring is NOT an Impulse, It Is an Investment – from Mike Haberman’s Omega HR Solutions
• Pepsi and the Art of Criminal Background Checks – from The HR Capitalist, Kris Dunn
• Pepsi “Popped” for Using Criminal Background Checks – from Texas Employer Handbook
• Pepsi Settles with the EEOC for Background Screening Practices – from Nick Fishman at the employeescreenIQ Blog
• 2012 Human Resources Updates: What Employers Need to Know – from CPEhr
• Why Mitt Romney likes to fire people – from Evil HR Lady, Suzanne Lucas
• 7 Things Your Employees Will Never Tell You – from Inc. Magazine
• Employers close door on smokers – from USA Today
• After Ohio Jury Finds Trade Secret Misappropriation But Awards Zero Damages, Trial Judge Enters Injunction Order But Sets Royalty Payment As Alternative – from Trading Secrets

Wage & Hour

• 9 Secrets For Coordinating Leave Under the FMLA and ADA – from SmartHR
• Expired FMLA Forms OK for Now – from Human Resources News
• Mandatory paid sick leave: a basic right? – from Employment Law Bits
• What to Expect When You’re Expecting the Department of Labor – from Dan Schwartz’s Connecticut Employment Law Blog
• What Are Hours Worked Under the Fair Labor Standards Act (FLSA)? – from Minnesota Employer

Labor Relations

• New NLRB Officially Here – from Workplace Prof Blog
• Potty Mouth Employee Loses Protection – from Labor & Employment Law Perspectives

Supreme Court finds religion, dismisses discrimination lawsuit

Any decision issued by the Supreme Court in an employment case is newsworthy. Thus, even though Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC [pdf] concerns the viability and applicability of the narrow ministerial exception under Title VII, it is still worthy of discussion.

Hosanna-Tabor employed Cheryl Perich as an elementary teacher. She started her employment as a “lay” teacher, and later received her “diploma of vocation” as a commissioned minister “called” by God. As a teacher, she spent approximately 45 minutes per day teaching religious studies, and the rest teaching secular subjects. Hosanna-Tabor terminated her employment after she began suffering from narcolepsy and threatening to sue for discrimination. The EEOC sued on her behalf under the ADA.

Last year, the 6th Circuit permitted Perich to continue with her lawsuit, finding dispositive the fact her primary job functions were secular, not religious. The Supreme Court unanimously disagreed, recognized that a constitutional ministerial exception exists under Title VII, and that because Perich was a religious employee she could not sue for discriminatory termination.

Other bloggers, who got to this case before me, have admirably recapped the Court’s opinion:

• Supreme Court recognizes “ministerial exception” to employment law protections – from Adam Bonin at Daily Kos
• Just In: SCOTUS Rules 1st Amendment Bars Minister's Discrimination Claim – from Phil Miles’s Lawffice Space
• Ministerial exception bars minister's termination suit against church – from LawMemo Employment Law Blog
• Opinion recap: A solid “ministerial exception” – from SCOTUSblog
• BREAKING: U.S. Supreme Court Supports Fairly Broad “Ministerial Exception” to Anti-Discrimination Laws – from Dan Schwartz’s Connecticut Employment Law Blog
• SCOTUS Upholds and Applies Ministerial Exception – from Workplace Prof Blog
• Ministerial Exception to Employment Discrimination Laws Upheld by Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. – from George’s Employment Blawg
• First Supreme Court Employment Decision of 2012 – from Manpower Employment Blawg

Instead of retreading their ground, I thought I’d focus on what this case means going forward. Chief Justice Roberts, writing for the majority, made it clear that this case only addressed an employment discrimination claim, and not other possible claims a “minister” might bring against a religious institution:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

***

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Wage and hour claims? A church employee fired after being wrongly accused of molesting a child? Given the Court’s reliance on the right of a church, conferred by the Constitution, to “control … the selection of those who will personify its beliefs,” it will be hard to imagine a different result in future cases.

Statistics show that lactation breaks are not a workplace problem

Before you read further, make sure you are sitting down, and that there is nothing blunt nearby for you to bump your head on if you pass out from the shock. Okay, here we go. According to the Huffington Post, since Obamacare mandated that employers provide space in the workplace for mothers to lactate, the Department of Labor has cited a whopping 23 companies for not providing adequate lactation breaks or spaces.

According to the U.S. Census Bureau’s latest statistics, there are 5,767,306 American employers, and yet only 23 have been cited for a violation of this mandate. In other words, the Department of Labor has cited .0004% of all American employers. If we only consider employers with 20 or more employees, the DOL has cited .0038%—still an infinitesimally small number. If we only consider the largest of employers—those with 100 or more employees—the percentage of citations drops to a still-miniscule .023%.

What does this mean? Either that the lactation mandate is not yet widely known, and as public knowledge catches up with the law’s requirements complaints (and citations) will rise. Or, the lack of lactation space in American workplaces is a myth that does not need need a legislative solution.

Are there employers that violate women’s rights (already protected by Title VII) to lactate in the workplace? Absolutely. Do enough trample these rights such that we need legislation to address this issues? Likely not.

[Hat tip: ABA Journal]

Is the NLRB backing off its position on social media as protected, concerted activity?

A quartet of advice memos released by the NLRB’s Office of the General Counsel over the past weeks suggests that the NLRB may be backing of its extreme protections of employee social media posts as protected, concerted activity.

• In Children’s National Medical Center [pdf], the General Counsel recommended the dismissal of a charge brought by a respiratory therapist terminated for updating her Facebook status during an ambulance ride to threaten a co-worker who was committing the cardinal sin of sucking on her teeth:

“[T]here is no evidence to establish concert. The Charging Party did not discuss her Facebook post with any of her fellow employees, and none of her coworkers responded to the posts…. The Charging Party was merely airing a personal complaint about something that had happened on her shift.”

• In TAW Inc. [pdf], the General Counsel recommended the dismissal of a charge brought by an accountant terminated for refusing to remove a Facebook post which suggested that her employer was engaged in fraudulent accounting practices:

“Even if the Charging Party initially posted the comment in furtherance of alleged concerted activity …, her refusal to remove the comment after the April 18 meeting with the outside auditor was not protected…. [H]er comment suggesting that the Employer was engaged in fraud was false and, after April 18, she knew it was false. Her insistence on retaining the post after knowing it was false is not entitled to protection under the Act.”

• In Copiah Bank [pdf], the General Counsel recommended the dismissal of a charge brought by a bank teller terminated for off-duty Facebook posts complaining that employees at another branch had “narced” on her:

“The Charging Party did not post her comment on her Facebook page in furtherance of concerted activity for mutual aid or protection. The Charging Party admits that that she was not speaking on behalf of any other employees, nor is there evidence that that she was looking to group action when she posted her comments on Facebook.”

• In Intermountain Specialized Abuse Treatment Center [pdf], the General Counsel recommended the dismissal of a charge brought by a therapist who took to her Facebook wall to complain about staff meetings, including at least one interaction with a co-worker during which they agreed to use Facebook to “complain about work.”:

“The Charging Party’s Facebook posting was merely an expression of an individual gripe about … a staff meeting that affected only the Charging Party – her removal as the facilitator of her victims group. The posting contained no language suggesting that she sought to initiate or induce co-workers to engage in group action. And the only co-worker who commented in response to the posting stated that he did not think that the Charging Party’s post was an attempt to change anything at work.”

These G.C. memos suggest, as I suggested almost a year ago, that the sky may not be falling in regards to social media and the NLRB. Children’s National, TAW, and Copiah Bank are reasoned opinions on lone-wolf employees who took to social media to air gripes about work, or, in the case of Children’s National, to threaten a co-worker.

Intermountain, though, may have wider implications. One of my key concerns about the NLRB’s foray in regulating workplace social media is that by its very nature, social media is concerted, i.e., does a co-worker’s unsolicited comment or response to a social media post convert lone-wolf conduct into concerted activity? Intermountain suggests that the concerted nature of the social media activity depends on both the intent of the original poster and the understanding of that intent by any subsequent commenters.

These issues are far from settled. Intermountain, though, is a good first step in the right direction to providing employers some much needed clarity in this area. It’s also a welcoming sign that the NLRB isn’t forging ahead with blinders on in this area.

NLRB trumps U.S. Supreme Court on class action arbitrations

Last year, the U.S. Supreme Court, in AT&T Mobility v. Concepcion, held that a business could compel a group of individuals to waive their right to file a class action lawsuit and instead arbitrate their collective dispute. Employers rejoiced, believing that they finally had the weapon they needed to battle the scourge of wage and hour class actions. Last Friday, however, the NLRB struck a blow against this apparent victory.

In D. R. Horton, Inc. [pdf], the NLRB held that an arbitration agreement violated the National Labor Relations Act’s protections for employee concerted activity. The facts are pretty straight-forward. The employer required all of its employees, as a condition of their employment, to sign a master arbitration agreement, under which they agreed:

• to submit all disputes and claims relating to their employment to final and binding arbitration;
• that the arbitrator “may hear only … individual claims,” “will not have the authority to consolidate the claims of other employees,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding”; and
• to waive “the right to file a lawsuit or other civil proceeding relating to … employment with the Company” and “the right to resolve employment-related disputes in a proceeding before a judge or jury.”

The NLRB concluded that the agreement “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection,” and held that the employer “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”

A few key points to make about this case:

1. This case continues the trend (as we’ve seen in the social media cases—more on this tomorrow) of the NLRB pursuing protected, concerted activity cases in non-union workplaces.
2. The NLRB did not concluded that all class action arbitration agreements are invalid, but merely those that leave employees without a collective remedy. An arbitration agreement, for example, that permits for a judicial filing would still be lawful. (But, then again, wouldn’t that fall-back nullify any benefit to be gained from the arbitration agreement in the first place?)
3. This decision likely is not the last we will hear on this issue. This case is almost certainly headed to the 11th Circuit Court of Appeals. Depending on that result, it will be curious to see if the Supreme Court picks up the ball to reconcile this case with AT&T Mobility. Until then, employers should tread carefully in trying to implement or enforce class action arbitration agreements.

WIRTW #207 (the “world tour” edition)

Okay, so it’s not really a world tour, but I do have a bunch of speaking engagements coming up in the next few weeks, all but one of which you can join.

• At 2 pm this afternoon, you can call in and speak to me live on the special 100th installment of Stephanie Thomas’s Proactive Employer Podcast. I’ll be appearing along with fellow employment law bloggers Dan Schwartz and Phil Miles. If you want to participate, the call-in number is (347) 945-5651, or you can tweet your question using the hashtag #TPE100. You will be able to listen live here.
• On January 11, I will be presenting the inaugural webinar in the Ohio Chamber of Commerce’s HR Academy, entitled Think Before You Click: Strategies for Managing Social Media in the Workplace. The live webinar runs from 10 – 11:30 am.
• On January 18, I will be leading a session on how-to blog for the Ohio Women’s Bar Association Leadership Institute.
• On February 9, I am presenting Lawyers, Booze and Money: Social Media Compliance for Regulated Industries, at the Social Media Strategies Summit in Las Vegas.
• On February 21, I will be part of a webinar panel entitled Understanding Unions, NLRB, and Social Media. The panel will be part of a webinar series run by Jessica Miller-Merrell on her blog, Blogging4Jobs. More info to follow.
• Also, last month I recorded an episode of the Fistful of Talent Podcast (the CYA Report, with co-host Dawn Burke and Kris Dunn) discussing current issues with the NLRB. You can download the podcast here.

The blogosphere never sleeps, even over the holidays. It’s been a busy couple of weeks. Let’s get to it.

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

Discrimination

• The EEOC’s wish list for reasonable accommodations – from Sindy Warren’s Warren & Hays Employment Law Blog
• Going on offense—responding to a potential ADA suit – from John Holmquist’s Michigan Employment Law Connection
• Breast-Feeding Avengers – from Eve Tahmincioglu’s CareerDiva
• A Get Over It Guide to Transgender in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs

Social Media & Workplace Technology

• Poetic Justice - 2011 Wrap Up – from Social Media Employment Law Blog
• Top Ten 2012 Social Media Resolutions Every Organization Should Have – from Social Axcess
• Are employees’ LinkedIn contacts considered your trade secrets? and Who owns the LinkedIn account you maintain for an employee? – from Eric Meyer’s The Employer Handbook Blog
• Do Your Social Media Accounts Belong To Your Business? Why Worry, When There Are Safeguards You Can Take Now – from Social Media Law Update
• Why Owning Your Employee’s Twitter Account is Foolish – from Social Media Today
• My Interview with @noahkravitz (Noah Kravitz) - How Much is a Twitter Follower Worth? – from Social Media for Law Firms
• SEC issues investor alerts highlighting the perils of social media – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Avoiding the Dangers of Social Media Background Checks – from i-Sight Investigation Software Blog
• Twitter, Anonymous, Occupy Wall Street, the First Amendment, and the Suffolk County district attorney – from The Verge

HR & Employee Relations

• Setting Precedents: What You Have Done Before Does Count – from Mike Haberman’s Omega HR Solutions
• Employment law leftovers: Best of 2011, what's up for 2012, and resolutions – from Robin Shea’s Employment and Labor Insider
• Things I Believe In – from The ChamberPost
• Sex Sells—And It’s A Trade Secret – from Fair Competition Law
• Employee Bathroom Surveillance Camera, Although Faulty, Could Be Invasion of Privacy – from Workplace Fairness
• Why You Really Shouldn’t Curse at Work (Much) – from Harvard Business Review
• Losing Your Driver’s License Can Impact Your Career – from hr bartender
• Workplace Rudeness Has a Ripple Effect – from Scientific American
• Ohio Court: Client List Was Not a Trade Secret – from The Personnel Files
• What Employers and Employees Should Understand About Conducting Background Checks from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Does Lady Gaga Owe Assistant OT? – from Wage & Hour Insights
• Lady Gaga’s Personal Assistant Sues for Overtime: “At Her Side” 24/7 – from Wage and Hour Law Update
• Get a Fresh Start on Misclassification in 2012 – from Stephanie Thomas at Compensation Cafe
• Can my company force me to take health insurance? – from Evil HR Lady, Suzanne Lucas
• Employee Not Owed Reporting Time or Split Shift Pay for Scheduled Meetings – from Wage & Hour Counsel
• The DOL’s FMLA Forms Expired on December 31, 2011. Should Employers Still Use Them? – from FMLA Insights
• Invalid FMLA certification can form the basis of employment termination – from Employment Law Matters

Labor Relations

• Just In: Obama Taps Three for NLRB Vacancies – from Phil Miles’s Lawffice Space
• President Obama Announces Three Recess Appointments to NLRB Despite Senate in Pro Forma Session and More on President Obama’s “Recess” Appointments to the NLRB – from Seth Borden’s Labor Relations Today
• NLRB’s New “Vote Now, Litigate Later” Union Election Rules To Become Effective April 2012 – from World of Work
• When is a Supervisor Not a Supervisor? The NLRB Finds No Proof of Supervisory Authority – from Vorys on Labor