WIRTW #216 (the “one that got away” edition)

One piece of news you may have missed this week involved a lawsuit filed seeking to block the NLRB’s impending workplace rights poster. The District Court for the District of Columbia upheld the NLRB’s right to require the poster, but invalidated certain portions related to penalties for non-compliance. All hope is not lost, as a similar lawsuit awaits ruling in a different federal court. And, the courts of appeals will have to have their say. For now, however, the poster is still on track for its April 30, 2012, debut in your workplace.

For more on this issue, I recommend the following, who have already covered it in much greater detail than me:

• NLRB Posting and Goose/Gander Rule for Employer and Employee NLRA Rights — from Russell Cawyer’s Texas Employment Law Update
• Court Strikes Down Portions Of NLRB Notice Posting Rules — from Labor Relations Update
• Federal Court Upholds the NLRB’s Notice-Posting Rule, But Limits The Rule’s Enforcement Provisions — from Minnesota Employer
• District Court Partially Upholds/Blocks NLRB Notice-Posting Rule — from Labor Relations Today
• Posting Rule Upheld (Sort Of) — from Manpower Employment Blawg
• Update: Challenges to NLRB Posting Rule — from Employer Law Report
• Two out of Three is Bad: Judge Says Poster Goes Up — from Michigan Employment Law

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

Discrimination

• Can one anti-Semitic email make a tenable employee bias claim? — from Eric Meyer’s The Employer Handbook Blog
• Employment Discrimination Protocols for Discovery: They’re Coming — from Dan Schwartz’s Connecticut Employment Law Blog
• White guys need love too: Punitive damages and reverse discrimination — from Robin Shea’s Employment and Labor Insider
• Unemployed Status—The New Protected Class — from Labor Employment Law Blog
• Regarded-as disability and the ADA amendments — from Work Matters
• Direct threat with regards to employment discrimination — from Employment Law Bits
• Boys, Girls and Workplace Discrimination — from i-Sight Investigation Software Blog
• Why is Pregnancy Discrimination Still Happening? — from Fistful of Talent
• $168 Million Verdict In Single Plaintiff Termination Case — from California Employment Law

Social Media & Workplace Technology

• What Employers Are Thinking When They Look At Your Facebook Page — from Kashmir Hill’s The Not-So Private Parts
• Using Social Media to Screen Job Applicants – Yes or No? — from Unbridled Talent
• Should Cyber-Screening by Employers Be Legislated? — from Molly DiBianca’s Delaware Employment Law Blog
• The Problem’s Not Just Porn Anymore — from The Employer's Lawyer
• Off-Duty Blogging Creates Employer Harassment Liability — from Phil Miles’s Lawffice Space
• As Social Media Adoption Grows So Does Corporate Risk — from Jessica Miller-Merrell’s Blogging4Jobs
• The Anatomy of a Good Social Media Policy — from Social Media Today
• Steakhouse Waiter Fired For Showing The World What A Great Tipper Peyton Manning Is — from Deadspin
• Why You Should Check With Legal Before Searching Employee’s Emails — from LE Blog

HR & Employee Relations

• Bullies, Reputational Hijackings and Corporate Responsibility… — from The HR Capitalist, Kris Dunn
• How to Destroy Employee Morale in Four Easy Steps — from ABA Journal Daily News

Wage & Hour

• Ten Things Small Business Needs To Know About Minimum Wage and Overtime — from Wage & Hour Insights
• Have I Been Properly Labeled as an Exempt Manager for Overtime Purposes Under the FLSA? — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Donning + Doffing = Divided Decisions — from Smart HR Manager
• Does an Employer Violate the FMLA When an Employee Answers Email or Telephone Calls While on Leave? — from Jeff Nowak’s FMLA Insights
• New mandates for paid sick leave raise hackles — from MSNBC.com

Labor Relations

• Herding home care workers into unions — from Walter Olson’s Overlawyered
• Workers, and NLRB, Under Attack — from The Nation

The value in delivering good news

Yesterday started out pretty lousy. My kids were all bent of shape because the cable box wasn’t working and they couldn’t watch their morning cartoons with their breakfast. (Thinking back to when I was 3 and 5, I would have been out of whack too.) So I spent more than an hour on the phone with AT&T’s customer service, which is not how I intended to spend my morning. Needless to say, I was in a pretty sour mood when I got to the office.

That sour mood lasted until the mail came at 11:30. Yesterday’s mail included an opinion and order granting summary judgment in my client’s favor in a discrimination and retaliation case. Sadly, the opportunities to deliver really good news to a client are seldom. Hearing the elation in my client’s voice when I told him that he had been vindicated in his decision to terminate an employee is what makes this job worthwhile.

I am not telling this story to toot my own horn. I’m always proud of the work I do for clients, and whether a court grants or denies a summary judgment motion is out of my control. Instead, I tell this story to focus on the part we can control—the ability to deliver really good news.

Think about the last time you pulled an employee aside to offer praise. I bet it’s been a little while. It’s not your fault. We’re all busy, and just don’t think about communications with employees unless it’s performance-related. We get bogged down in the bad and ignore the good.

Today, I want you to take a minute to offer a deserving employee some good news. Whether it’s a pat on the back for a job well done, or some praise for going the extra mile on a project, or something else entirely, take a minute to brighten someone’s day. Then, report back on the value you found in the experience.

The importance of selecting the right counsel

No matter how good of an employer you are, no matter how well you treat your employees, and no matter how closely you try to follow the myriad laws that regulate your relationships with your employees, the harsh reality is that the fact that you are an employer means that you will get sued. Once you are sued, the first and most important decision you have to make is the choice of the lawyer who will defend you.

For example, consider Falzone v. Licastro (N.D. Ohio 3/4/12) [pdf], which dismissed an employee’s claims against his former employer. The lawyering involved in the briefing directly impacted the viability of the lawsuit:

At the outset, the Court observes that Falzone has greatly complicated the Court’s task.  His ten-page-long opposition to summary judgment does not contain a single heading, is littered with unsupported conclusory allegations, eschews legal analysis for paragraph-long block quotes, and, with a couple of exceptions, either fails to identify the portions of the record on which his claims depend or cites parts of the record so voluminous that the Court can only wonder what it should be looking for.... For this reason alone, a grant of summary judgment to Defendants on Falzone’s claims is appropriate. Nevertheless, because the Court can, on its own, piece together enough of this poorly developed record to address in substance most of Falzone’s claims, it will.

As Falzone illustrates, your choice of counsel can make or break your case. Choose wisely.

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.