The worst idea ever? “Unionism” as a protected class

Last year I wrote a post entitled The Employer’s Bill of Rights. It remains one of the most read and most commented-upon posts in the five-year history of this blog. In that post, I argued that employers need certain protections from the litany of workplace rights enjoyed by employees. Many of those employee rights fall under the umbrella of “protected classes” — race, sex, pregnancy, national origin, religion, age, disability, genetic information, and (in Ohio, at least) military status. 

Last Wednesday, I came across an op-ed in The New York Times entitled, A Civil Right to Unionize. In this article, Richard Kahlenberg and Moshe Marvit opine that Title VII needs to be updated to include “the right to unionize” as a protected civil right:

In fact, the greatest impediment to unions is weak and anachronistic labor laws. It’s time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act….

Our proposal would make disciplining or firing an employee “on the basis of seeking union membership” illegal just as it now is on the basis of race, color, sex, religion and national origin.

Have I missed something? Isn’t it already illegal to discriminate against employees because of their union support? Indeed, it’s right there, in black and white, in the National Labor Relations Act:

8(a)(3): It shall be an unfair labor practice for an employer … by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.

With apologies to union supporters, there is no reality in which “unionism” exists on the same level as race, sex, disability, or the other protected classes. The “greatest impediment” to unions isn’t “weak and anachronistic labor laws.” It’s intelligent and strong-willed employees who understand that whatever benefit they might receive from a labor union is not worth the dues that come out of their paychecks.

And, the reality is that despite all of this pro-union rhetoric, labor unions are doing just fine without any additional help. Unions wins more than two-thirds of representation elections. All this proposal does is increase the burden for employers, without providing any appreciable benefit to employees — which is why I feel comfortable asking if this proposal is the worst idea ever.

Despite what some think, employers do not set out to discriminate

At her cleverly-named employee-side blog, Donna Ballman reported on a study published by the National Employment Lawyers Association—an association of plaintiff-side employment lawyers—which concluded that plaintiffs only win 15% of employment cases in federal courts. When Donna compared that number to the 51% win-rate in non-employment cases, she concluded that federal judges are hostile to plaintiffs in employment cases.

Donna’s post led to the following Twitter conversation between Donna, management-side attorney Jeff Nowak, and me:

I do not believe that federal court judges (or any set of judges, for that matter) possess a predisposed hostility towards plaintiffs in employment cases. To the contrary, the low win-rate of plaintiffs in these cases is more explained by the fact that most employers simply do not discriminate.

When I think back over my 15-year career representing employers, I can think only of a few (2 or 3) that set out to discriminate against an employee. (To be fair, many more committed sins of ignorance, acting not out of malice, but out of inexperience with the complexities of the myriad employment laws they are charged with understanding and following.) The reality is that lawsuits can result from well-intentioned employers making well-intentioned personnel decisions.

We live in a society where people are quick to blame others for their mistakes. People choose to litigate instead of accepting their own responsibility for a job loss. These ideas more likely explain the 15% win-rate for plaintiffs than any judicial predispositions for employers.

WIRTW #215 (the “Sam I Am” edition)

Today, Dr. Seuss would have been 108 years old. What does Dr. Seuss have to do with employment law, you ask? Believe it or not, I have an answer for you — More lessons from children’s lit: Dr. Seuss — which I wrote more than two years ago. Enjoy this oldie from the archives in honor of Dr. Seuss’s 108th birthday.

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

Discrimination

• Disabled-hiring “goals” for federal contractors — from Walter Olson’s Overlawyered
• Leave of Absence as Reasonable Accommodation for Disability? It Depends — from Employment Matters Blog
• Want Some Insight into the EEOC’s priorities in the Area of ADA and Leaves of Absence? Follow EEOC Commissioner Chai Feldblum on Twitter — from Jeff Nowak’s FMLA Insights
• On the EEOC radar: Pregnancy and caregiver discrimination — from John Holmquist’s Michigan Employment Law Connection
• When illegal interview questions are legal — from Evil HR Lady, Suzanne Lucas
• Linguistic Challenges in the Workplace — from Southwest Florida HR Law & Solutions
• Genetic Information Non-Discrimination Act (“GINA”) — from Texas Employer Handbook
• Three Steps That Will Help Prevent Sexual Harassment Problems — from Mike Haberman’s Omega HR Solutions
• EEOC’s Strategic Plan and 5 tips for employers seeking a good mediation — from Robin Shea’s Employment and Labor Insider
• Why appearance-based discrimination isn’t illegal — from i-Sight Investigation Software Blog

Social Media & Workplace Technology

• “Twitter Is Not Your Personal Playground,” ESPN Reminds Its Employees — from Deadspin
• Employer Is Liable for Off-Duty Harassment-by-Blog — from Molly DiBianca’s Delaware Employment Law Blog
• Social Media and the Workplace — from Security Management
• Top 5 Signs Lawyers Should Know About Pinterest — from Phil Miles’s Lawffice Space
• Pin with Caution, Says Lawyer Who Deleted All Her Pinterest Posts — from ABA Journal Daily News
• You can’t get Facebook login info based on a smiling profile pic — from Eric Meyer’s The Employer Handbook Blog
• Achieving Work Life Balance with Mobile Technology — from Jessica Miller-Merrell’s Blogging4Jobs
• iPad at Work: for the President at His Daily Briefing in the White House — from iPad Insight

HR & Employee Relations

• Could Pixar’s “Secret Story Guidelines” Work for Your Team? — from Harvard Business Review
• Tragedy in Chardon: a lesson for HR — from Warren & Associates Blog
• New York Court Finds Clinic Not Liable for Employee’s Disclosure of PHI — from Privacy Law Blog
• “Tail Coverage” Following Termination of Employment: What Physicians (and their Employers) Should Know? — from Health Employment and Labor
• Employee handbooks – just when you thought it was safe… — from HR idiot
• Does Paternity Leave Hurt Women? — from The Juggle
• Debate Over Sick Leave Intensifies — from Sarah Needleman in the Wall Street Journal

Do you know? The ADA and reverse discrimination

Earlier this week, the EEOC published Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers. In this guide, the EEOC asks the following question:

May a private employer give preference in hiring to a veteran with a disability over other applicants?

According to the agency, the answer is “yes.” The ADA does not prohibit “affirmative action on behalf of individuals with disabilities. Nothing prohibits an employer from hiring an individual with a disability who is qualified over a (presumably less) qualified applicant without a disability.

If you think about, this statement makes a lot of sense. Title VII prohibits reverse discrimination because it makes no differentiation on the basis of majority or minority status. It merely prohibits discrimination on the basis of race/sex/religion/national origin. The ADA, on the other hand, only protects the disabled. For one to be covered by the ADA, one must meet the specific statutory definition of “disability.”

If this difference was not already clear enough, the ADAAA added a section to the statute expressly stating that the ADA does not protect those who claim discrimination because of a “lack of disability.”

The EEOC’s guide is worth a quick read. It offers some excellent pointers on how to handle the recruiting, hiring, and accommodating of anyone with a disability — whether veterans or civilians.

Today is “exempt employees work free” day

Even though the modern calendar contains 365 days, it actually takes 365 days and 6 hours for the earth to complete one rotation of the sun. To account for these extra 6 hours, every 4 years contains 366 days, not 365 (to be precise, it’s years divisible by 4 or 400, but not 100). This extra day is known as Leap Day (which happens to be today).

I had an entire post written for today about the wage and hour implications of this quadrennial tradition. I was going to tell you all about how exempt employees don’t really get paid for leap days, because their annual salary is based on a 365-day cycle. Then Dan Schwartz beat me the to punch. I know I’ve scooped Dan before, so I figure turnabout is only fair. Plus, when the Yankees are watching the Phils (hopefully on their televisions) hoisting the World Series trophy in October, I’ll have the one that matters anyway. Right Dan?

In the wake of a tragedy, more on humanity and human resources

Yesterday was a tragic day in Northeast Ohio. I extend my thoughts and prayers to anyone affected by the horrors at Chardon High School.

Today, Chardon’s schools are closed. Kids will be home from school. Some, because their parents will be working, will be left to deal with their grief in solitude, trying to understand and come to terms with what they witnessed. Neither the FMLA, nor any other leave law in Ohio, covers these circumstances.

Last week, I wrote about the need to put the “human” back in human resources. For any company that has employees with children who attend Chardon schools, today is great day to start down this path of humanity. Forget what the law does or does not require of your employees, and allow them the day to spend with their grieving, angry, and confused children. What you might lose in productivity your employees will repay you in gratitude and good will.

6th Circuit: Employee must know about harassment to complain about it

Berryman v. SuperValu Holdings, Inc. (6th Cir. 2/24/12) [pdf] concerns the racial harassment allegations of 11 different employees, spanning 25 years. The allegations included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. Taken together, the allegations painted the picture of a workplace rife with severe, pervasive racially hostile behavior. The problem for these 11 plaintiffs, however, was that none were personally aware of the alleged hostile environments alleged by the other 10. Thus, the Court concluded that it was improper to aggregate their allegations into one over-arching hostile work environment:

In short, a plaintiff does not need to be the target of, or a witness to harassment in order for us to consider that harassment in the totality of the circumstances; but he does need to know about it.

This case does not alter your legal responsibilities to respond and react to a hostile work environment. If you learn that you have employees …

• Hanging an “effigy of an African American supervisor.”
• Writing “nigger” on the floor.
• Displaying drawing of people with “large lips and nappy hair.”
• Posting “pictures of monkeys” alongside “a picture of police cars chasing O.J. Simpson.”

… you have to do something about it. You have to investigate and you have to take real and effective corrective action to stop it from continuing or happening in the future.

This case, however, illustrates an important and often misunderstood point. The law only protects employees who are exposed to a hostile work environment. It only provides a remedy to employees who know of (first-hand or second-hand) the offensive conduct. It does not provide a remedy to every employee who enjoys the coincidence of being employed in a workplace that happens to be hostile to others.