Let’s try not to over-react to the breastfeeding discrimination case

Last month, I wrote that employers denying lactation rights to employees was not problem that needed remedial legislation. Wouldn’t you know it, news broke last week of a federal judge in Houston who dismissed a sex discrimination case—EEOC v. Houston Funding [pdf]—in which the employee alleged that she was fired because she asked to pump breast milk at work.

Here’s the court’s entire analysis dismissing the lawsuit:

The commission says that the company fired her because she wanted to pump breast milk. Discrimination because of pregnancy, childbirth, or a related medical condition is illegal….

Even if the company’s claim that she was fired for abandonment is meant to hide the real reason — she wanted to pump breast milk — lactation is not pregnancy, childbirth, or a related medical condition.

She gave birth on December 11, 2008. After that day, she was no longer pregnant, and her pregnancy-related conditions had ended. Firing someone because of lactation or breast-pumping is not sex discrimination.

Before I put on my employer-advocate hat, let me go on record and say that the last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination.

This decision has people angry. As of this morning, the case’s online docket reflects that 12 private non-parties have emailed the judge calling her ruling “shameful” and “absurd” (among other similar pejoratives).

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that 1) Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate; and 2) we do not need any additional legislation (on top of the Patient Protection and Affordable Care Act) to further to protect this right (EEOC v. Houston Funding notwithstanding).

For additional analysis of this case, I suggest checking out the thoughts of some of my fellow bloggers from last week:

• Does Federal Law Prohibit Lactation Retaliation? — from the Delaware Employment Law Blog
• Lactation and Nursing Is a Civil Rights Issue — from Outten & Golden Employment Law Blog
• Lactation Is Not Caused By Pregnancy or Childbirth, Says Judge — from Screw You Guys, I'm Going Home
• Lactation not Related to Pregnancy, Says Federal Judge — from San Antonio Employment Law Blog
• Expressing Milk Under Title VII and the PPACA — from LaborRelated
• Lactation is Not a Condition Related to Pregnancy Says S.D. Tex. — from Workplace Prof Blog

WIRTW #212 (the “something for nothing” edition)

One of the benefits of hitting the road to speak as much as I do is all of the great people I meet. One of those people is Jessica Miller-Merrell, who authors the fabulous HR blog, Blogging4Jobs. On February 21 I, along with Mike VanDervort (author of The Human Race Horses) will guest on a free webinar Jessica is presenting, Understanding Unions, NLRB, & Corporate Social Media:

This session provides a broad overview for senior business leaders (and not just HR) regarding the recent legislation surrounding social media, the NLRB, and strategies for how company leaders can maneuver and monitor employee activity on social networking sites. Learn best practices how to manage and discipline your employees, create policies, and awareness throughout your organization.  

I’ll be addressing the NLRB’s latest attempts to regulate employer restrictions on employees’ use of social media, in and out of the workplace. The webinar will run from 12:00 to 1:30 pm on February 21, and registration is free.

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

Discrimination

• Refusal to Rescind Resignation is Not an Adverse Employment Action — from Phil Miles’s Lawffice Space
• Attractiveness A (Dis)Advantage In The Workplace? — from The Proactive Employer Blog
• 10th Circuit Holds Migraines Not a Disability Under the ADA — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Disparate Impact – Why Mobile Matters — from Heather Bussing at HR Examiner
• The changing definition of a covered disability — from Work Matters
• An Employer’s Playbook for Responding to an Allegation of Sexual Harassment — from Jason Shinn’s Michigan Employment Law Advisor
• Retaliation Redux: Two cases that should scare employers a lot — from Robin Shea’s Employment and Labor Insider
• The first question the EEOC asks — from Warren & Associates Blog

Social Media & Workplace Technology

• Facebook addiction explained: study shows psychophysiological arousal from social media — from Boy Genius Report
• GSMI’s Social Media White Paper Now Available — from Social Axcess
• The so-called “privacy” of employee emails — from Eric Meyer’s The Employer Handbook Blog
• BYOD in the Modern Workplace — from i-Sight Investigation Software Blog
• Privacy Advice Potpourri: Don’t Lose Your iPhone, Don’t Consider Anything On Your Work Computer Private, and Do Wonder About Mysterious ‘Dings’ On Your Conference Call — from Kashmir Hill’s The Not-So Private Parts
• Pinterest accused of replacing external affiliate links with its own — from The Verge

HR & Employee Relations

• Workplace Investigation Pitfall: Failure to Take the Complaint Seriously — from Strategic HR Lawyer
• Home Alone, Telecommuting, and Man’s Best Friend — from Fitzpatrick on Employment Law
• Should I rat out my boss? — from Evil HR Lady, Suzanne Lucas
• Keeping Everyone Safe in the Workplace — from Robin Schooling’s HR Schoolhouse
• Do You Love Love Contracts? — from Mark Toth’s Manpower Employment Blawg
• Nepotism Is Not Illegal — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• (FMLA) Form Over Function — from Delaware Employment Law Blog
• 4th Circuit: FLSA Prohibits Retaliation For Internal Complaints — from Wage & Hour Insights
• When Is An “Intern” An Employee Under The FLSA? — from Wage & Hour - Development & Highlights
• Overtime for Nannies — from Jim Brennan at Compensation Cafe
• The Danger of Unpaid Interns — from Overtime Advisor

Labor Relations

• The Fallout from the Latest NLRB Salvo on Social Media — from Dan Schwartz’s Connecticut Employment Law Blog
• U.S. Chamber of Commerce and National Labor Relations Board File Competing Summary Judgment Motions in “Quickie” Election Rule Case — from Seth Borden’s Labor Relations Today
• New “Right-to-Work” Law- A Test for Union Clout? — from Mike Haberman’s Omega HR Solutions

What isn’t a “complaint” under the FLSA? An Ohio federal court weights in

In Kasten v. Saint-Gobain Performance Plastics, the United States Supreme Court concluded that the anti-retaliation provision of the Fair Labor Standards Act covers oral complaints — but only if they are “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” The issue of what qualifies as a “clear and detailed … assertion of rights” was front and center in Riffle v. Wal-Mart Stores, Inc. (N.D. Ohio 1/24/12).

In Riffle, the only complaints the plaintiff made to her Wal-Mart supervisors were complaints about receiving telephone calls she received at home from co-workers who needed assistance in the cash office. The court concluded that the complaints did not satisfy the threshold established in Kasten.

Plaintiff’s complaints … are insufficient because they are not framed in terms of an FLSA violation as required by Kasten. The complaints plaintiff testified she made to her supervisors could not have reasonably been perceived by defendants as a complaint that plaintiff was not being paid in accordance with the requirements of the FLSA or that defendants otherwise violated the FLSA.

Following Riffle, employers have some guidance as to the types of communications that do not qualify for protection under the FLSA’s anti-retaliation provision. Figuring out what does qualify will prove trickier, and will take years of cases and judicial opinions to sort out.

In the meantime, try not to do the following to your employees who engage in some protected activity:

[Link to YouTube video for those reading in an email]

Another consideration in the high cost of wage and hour litigation: e-discovery

I’ve written before about the high risks companies face from wage and hour class/collective lawsuits (here’s one example). Here’s another factor to consider: the exorbitant costs imposed by e-discovery and employers’ obligations to preserve electronic records.

Workplace Prof Blog brings us the story of Pippins v. KPMG, a wage and hour collective action alleging that the accounting firm deprived its Audit Associates of overtime wages. Before the class was even certified, the court imposed upon KPGM the obligation to preserve the potential class members’ more-than 2,500 laptop hard drives. Following certification, KPMG argued that instead of preserving all of the hard drives—at an astounding cost of more than $1.5 million—it should only be required to keep a representative sample comprised of the named plaintiffs.

The court disagreed:

Based on Plaintiff’s recollections regarding their former hard drives, I agree with [Magistrate] Judge Cott that the hard drives are likely to contain relevant information. The information on the hard drives will likely demonstrate when the Audit Associates were working (hours) and what they did while at work (duties). This information is obviously relevant in a case asserting violations of the FLSA … since Plaintiffs need to establish what type of work they performed in order to prevail on the merits, and how many hours a week they worked in order to collect damages….

I gather that KPMG takes the position that the only Audit Associates who are presently “parties” are the named plaintiffs, and so only the named plaintiffs’ hard drives really need to be preserved. But that is nonsense…. [T]he duty to preserve all relevant information for “key players” is triggered when a party “reasonably anticipates litigation.” At the present moment, KPMG should “reasonably anticipate” that every Audit Associate who will be receiving opt-in notice is a potential plaintiff in this action.

What are the lessons for employers?

1. When considering the goofy costs (and risks) of wage and hour non-compliance, you not only have to factor in unpaid wages, liquidated damages, your legal fees, and the employees’ legal fees, but also the costs of preserving all of the electronic information the plaintiffs will seek in discovery. Like most employment cases, there exists a palpable disparity in the ownership of information. Employers possess most of the relevant information, and therefore carry most of the costs in the retention and production of documents. 
2. To guard against these goofy costs, audit your wage and hour practices. ’Tis better to spend a few thousand dollars up front to gain knowledge of which of the myriad wage and hour laws your company might be violating, than to spend a few hundred thousand (or a few million!) dollars later to defend against, or pay out on, a wage and hour class action. (Not that employers can't win these cases).

The digital divide and disparate impact

According to statistics recently published by Mashable, the digital divide—those who are connected to the Internet versus those who are not—is partially racial. 72% of white homes are connected to the Internet, as compared to only 57% of Hispanic homes and 55% of African American homes.

These numbers mean that if you are using access to technology as a qualifying factor for employment, your hiring practices might have a disparate impact on Hispanics and African Americans. For example, do you only accept job application over the Internet? Or, do you only recruit via Monster.com or LinkedIn? Or do you only consider candidates whom you can vet via Facebook or some other digital footprint? If so, you might want to consider casting a wider net, unless remote technology access is truly job related and consistent with business necessity.

A pisser of an HR policy

I’m a firm believer in good, sound, and comprehensive HR policies. They are necessary evil to establish the baseline expectations between a company and its employees. For example, they help avoid any confusion about the appropriate uses of email and the Internet. They also tell employees how many days-off they are allowed. And, in some cases, such as harassment and the FMLA, the law just flat-out requires them.

But, like all good things, HR policies can go too far. An example, you ask? How’s this one, courtesy of Above the Law. A San Francisco law firm issued an “Office Restroom Etiquette” policy, which included discussions on how much time to spend taking care of business, how to clean up, and what to do about certain natural odors and noises. It also offered some pointers for its male employees on what to do at urinals:

In urinals, keep your eyes up and ahead and avoid looking around as a mistaken glance in the wrong direction may be embarrassing and might even result in a confrontation. Also, keep as much distance between yourself and others in public restrooms. Always choose the urinal farthest away from other people if possible; this goes for stalls too.

Here’s another true story. I know someone who worked for a company at which the boss monitored employees’ every move via hidden cameras, including how often, and for how long, they visited the restroom. If your management has so much time on their hands that they need to involve themselves in employees’ bathroom habits, you might want to consider downgrading them to part-time status. They obviously do not have enough to fill their plates on a full-time basis.

WIRTW #211 (the “Vegas, baby!” edition)

Are you attending next week’s Social Media Strategies Summit in Las Vegas (presented by GSMI)? Social Media Today recently rated it as one of the 10 best social media conferences to attend in 2012. Guess who’ll be speaking, at 10 am, on February 9? If you guessed me, you’re the big winner. I’m presenting, Lawyers, Booze and Money: Social Media Compliance for Regulated Industries. If you’re at the conference, please stop by and say hello. I’ll also be around Wednesday afternoon, so look for me around The Mirage. I won’t be the guy at the high roller tables.

Here’s what I read this week:

Discrimination

• Employers, you might (or might not) be liable for retaliation if… — from Robin Shea’s Employment and Labor Insider
• EEOC’s Shifting Focus: Systemic Discrimination — from Stephanie Thomas’s The Proactive Employer Blog
• USERRA protections expanded to include hostile work environment — from Sindy Warren’s Warren & Hays Employment Law Blog
• Obesity: The New Discrimination under the ADA — from Restaurant Law Blog
• The Top 5 Most Intriguing Decisions In EEOC Cases Of 2011 — from Workplace Class Action Litigation
• EEOC Sues Employer for Not Allowing Employee to Attend Religious Convention — from Joe’s HR and Benefits Blog
• Catholic Teacher Fired for Having a Baby — from Legal As She Is Spoke
• Should Pregnancy Be Treated as a Disability? — from The Juggle (Wall Street Journal)

Social Media & Workplace Technology

• Monitoring and Accessing Employee Private Email Results in Lawsuit — from Jason Shinn’s Michigan Employment Law Advisor
• Could You Go Three Months Without A Mobile Phone, Email, Facebook, LinkedIn and Twitter? — from Kashmir Hill’s The Not-So Private Parts
• Your Gen Y employees love mixing business with pleasure online — from Eric Meyer’s The Employer Handbook Blog
• Posited “right to be forgotten online” — from Walter Olson’s Overlawyered
• Dark side of social media: age discrimination — from CBS News
• Just Friends? What To Consider Before Befriending Your Boss — from Huffington Post
• Study: 91% of Gen-Ys Use Their Phones in the Bathroom — from ReadWriteWeb
• Tell employees of monitoring plans — from Judy Greenwald at Business Insurance
• Privacy on social media – do we even care? — from Soshable

HR & Employee Relations

• Does your Startup Need an Employee Handbook? — from JumpStart Blog
• Courtroom Lessons for the Business Owner/Employer — from Rob Radcliff’s Smooth Transitions
• Welcome to the Company, Oh By the Way You Will Be Fired in Four Years — from Mike Haberman’s Omega HR Solutions
• An Employment Brand Is A Relationship — from HR Examiner with John Sumser
• A Lighthearted Take on Deposition Preparation — from Russell Cawyer’s Texas Employment Law Update
• The Background Check Results Are In … Who Won’t HR Hire — from Nick Fishman’s employeescreenIQ Blog
• Building Rapport with Non-Western Interview Subjects — from Dawn Lomer’s i-Sight Investigation Software Blog
• Giants Or Patriots - Do Employers Care? — from Social Media Employment Law Blog
• Super Bowl Hangover? Yes, Employees May Be Less Productive on Monday — from TLNT
• Most Outrageous Employee Excuses — from Philip Miles’s Lawffice Space

Wage & Hour

• When “letting off steam” becomes protected activity under the FLSA — from Fair Labor Standards Act Law
• “Right to Know” Rule Not Likely in 2012 — from Wage & Hour Insights
• 3d Cir. Finds Individual Supervisor Liable Under FMLA — from Molly DiBianca’s Delaware Employment Law Blog
• Five 2011 FMLA Cases That Give Guidance To Employers In 2012 — from Hunton Employment & Labor Law Perspectives™
• DOL Proposes FMLA Regulatory Changes Regarding Military Family Leave, Flight Crew Eligibility and How Employers Calculate FMLA Leave — from Jeff Nowak’s FMLA Insights

Labor Relations

• An Overview of “Right to Work” — from Dan Schwartz’s Connecticut Employment Law Blog
• NLRB Chairman Says He Will Push For Additional Election Rule Changes — from Labor Relations Counsel