“Friending” co-workers depends on your level of organizational risk tolerance

On Time Magazine’s Moneyland Blog, Dan Schawbel asks the following questions: “Is it a bad idea to friend co-workers on Facebook? How about your boss?” In his post, Mr. Schawbel discusses a recent study of 4 million Gen-Y Facebook profiles, conducted by Millennial Branding and Identified.com, which found the following:

• Nearly two-thirds (64%) of Gen-Y Facebook users omit their employers from their profiles.
• Only 16 out of an average Gen-Y Facebook user’s nearly 700 friends are co-workers.

From these findings, Mr. Schawbel concludes:

Gen-Y needs to be aware that what they publish online can come back to haunt them in the workplace. Gen-Y managers and co-workers have insight into their social lives, which could create an awkward workplace setting or even result in a termination.

There is no one-size-fits-all solution to the issues raised by co-workers connecting via social networks. Social sites such as Facebook and Twitter can be a powerful tool for added employee engagement and communication. Because of the the added connectivity, however, they also present an added risk for problems such as harassment, retaliation, and invasions of privacy. You have five options to choose from in the level of connectivity to permit for your employees. Which answer you choose will depend on how you balance the benefit of the added communication versus the risk of potential problems:

1. Anything goes. Any employee can friend any other employee regarding of rank or position.

2. Supervisors are prohibited from friending direct reports, but employees can friend their supervisors (who can choose whether to accept the request).

3. Supervisors and their reports cannot be Facebook friends, regardless of who initiates the request.

4. Employees are only permitted to be Facebook friends with their peers. No one can friend anyone higher or lower on the org chart.

5. Employees are expressly prohibited from being Facebook friends with any co-workers, regardless of position.

Regardless of which option you choose, you should choose one to incorporate into your social media policy, and train your employees about the dangers of unfiltered online communications and the proper use of social media inside and outside of the workplace. Without the appropriate training of your employees on these new and evolving issues, you might as well not have the policy at all.

Is it time to do away with McDonnell Douglas?

For the unfamiliar, the McDonnell Douglas test is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. (For the familiar, skip down the next paragraph.) It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination. This test is engrained in the hearts and minds of anyone who practices employment litigation.

Early this month, in Coleman v. Donahoe, the 7th Circuit (albeit in a concurring opinion), asked whether the McDonnell Douglas test still has any utility:

Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, … the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one.

Yesterday, the 6th Circuit, in Donald v. Sybra, Inc. [pdf], helped prove the 7th Circuit’s point. Sybra, which owns Arby’s franchises, terminated Gwendolyn Donald’s employment after it concluded she had been intentionally mis-ringing customer orders to steal from her cash register. Among other issues, she claimed that Sybra terminated her employment both in retaliation for, and to interfere with, her rights under the FMLA. After concluding that the McDonnell Douglas framework applied to both her retaliation and interference claims, the court ignored McDonnell Douglas, and affirmed the district court’s grant of summary judgment to the employer:

The district court effectively gave Donald the benefit of the doubt and assumed that she could establish both prima facie cases. This boon notwithstanding, the district court determined that Donald produced insufficient evidence to prove that Sybra’s stated reasons, cash register and order irregularities, were pretextual….

Donald’s claims fundamentally rest on the timing of Sybra’s decision to terminate her employment [the  day after she returned from her FMLA leave], which, we admit, gives us pause. But that alone is not enough, and her other arguments are no more persuasive. Whether Sybra followed its own protocol, or its decision not to prosecute Donald, or even Donald’s history of employment, provides neither us, nor a rational juror, with a basis to believe that Sybra’s decision was improper. The district court therefore correctly dismissed Donald’s FMLA claims.

If courts skip the first two steps of the McDonnell Douglas test and go right to the heart of the matter—whether a rational jury could conclude that the employer took that adverse action on account of her protected class—does it make sense to continue the charade of pretending that McDonnell Douglas remains useful? As a management-side litigator, I like the ability to have more than one evidentiary bite at the apple in trying to get a case dismissed on summary judgment. As a pragmatist, however, I’m afraid that the concurring opinion in Coleman v. Donahoe might be correct, that “the time has come to collapse all these tests into one.”

Clearing a path to complain is a key part of any harassment policy

EEOC v. Management Hospitality of Racine, Inc. (7th Cir. 1/9/12) concerns some of the worst allegations of sexual harassment you will encounter, especially when you consider that the complaining employees were both teenagers and that the harassing manager was a decade their senior.

The employer tried to avoid liability by relying on its zero tolerance sexual harassment policy and its prompt investigations of complaints. The court disagreed for several reasons, including that managers had never received any harassment training and that the employer waited two months to investigate the complaints in this case. Most importantly, however, the court concluded that the employer’s harassment policy failed on its face:

An employer’s complaint mechanism must provide a clear path for reporting harassment, particularly where, as here, a number of the servers were teenagers…. Flipmeastack’s sexual harassment policy did not provide a point person to air complaints to. In fact, it provided no names or contact information at all.

What does this mean for you? A harassment policy is worthless if it does not tell employees how to complain and to whom to make complaints. Let me make one additional suggestion — have more than one avenue for complaints. You do not want to be in a situation where an employee does not complain because the person to whom your policy directs him or her is the alleged harasser. Suggest that employees can complain to anyone in management, up to and including the head of your company. Depending on the size of your organization and the resources available, consider implementing a harassment complaint hotline or inbox.

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]