Stop, thief! Polygraph testing and workplace theft

The Employee Polygraph Protection Act regulates (and restricts) the use of polygraph tests in the workplace. For example, it prohibits an employer from disclosing to anyone an employee’s polygraph results without the employee’s consent, and also prohibits an employer from taking an adverse action against an employee based on the results of a polygraph.

Bass v. Wendy’s of Downtown, Inc. (N.D. Ohio 5/1/12) discusses the limits of both of these prohibitions. More importantly, however, this case raises a more practical question about the use of polygraphs in the workplace.

In 2007, a cash deposit went missing from Wendy’s. As part of its investigation, Wendy's asked Donald Bass to submit to a polygraph examination, which he failed. Despite the failed test, Bass continued to work for Wendy’s as a part-time employee. More than two years later, Wendy’s passed over Bass for a promotion to General Manager. A few months later, it fired him for inappropriately touching a female employee.

Bass claimed that Wendy’s violated the EPPA by: 1) disclosing the results of his 2007 polygraph to the Ohio Civil Rights Commission in support of its position that the store did not discriminate against him; and 2) relying on the 2007 polygraph to deny him the promotion.

The court dismissed both claims:

• The court dismissed the wrongful disclosure claim because Bass could not articulate how he had been damaged by the statement to the OCRC.
• The court dismissed the failure-to-promote claim because Wendy’s would have denied him the position even if he had not failed the polygraph. 

Here’s my question. If Bass failed a polygraph in 2007, why was he around years later to grope a female employee and claim discrimination? If you are going to jump through all of the legal hoops necessary to use a polygraph to confirm an employee’s theft, use the results. As this case shows, nothing good comes from retaining an employee who steals from you.

WIRTW #224 (the “5 is the magic number” edition)

On May 9, 2007, I launched the Ohio Employer’s Law Blog. It’s unfathomable to me that I’ve been writing this blog for five years. Thanks to all of my readers for a great half-decade (which I’m celebrating a few days early). Here’s to many, many more.

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

Discrimination

• Why you should stop attending diversity training — from Evil HR Lady, Suzanne Lucas
• 6 Steps to Avoid Family Responsibilities Discrimination Claims — from i-Sight Investigation Software Blog
• More office romances; more anti-harassment training — from Eric Meyer’s The Employer Handbook Blog
• “Hey, Jackie, can we talk?” The EEOC’s Enforcement Guidance on criminal background information — from Robin Shea’s Employment and Labor Insider
• Fired For Giving Boss A Kidney? — from The Proactive Employer Blog

Social Media & Workplace Technology

• Why You Should Sign Out Of Facebook Before Handing Your Phone Over To Best Buy — from Kashmir Hill’s The Not-So Private Parts
• Can “Friends” Be Trade Secrets? — from Unfair Competition & Trade Secrets Counsel
• Maryland’s Facebook Username and Password Law is a Win For Employers, Employees, and Job Applicants — from Shear on Social Media Law
• SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests — from Phil Miles’s Lawffice Space
• Survey on employer use of social network sites in recruiting and screening — from George’s Employment Blawg
• What is privacy? As job-seekers are judged by their tweets and Facebook posts, uncertainty abounds — from Lini Kadaba at philly.com

HR & Employee Relations

• Five Suggestions for Improving Employee Handbooks — from Mike Haberman’s Omega HR Solutions
• Dear Evil Skippy: Should You Say “Fired” or “Terminated”? — from Evil Skippy at Work
• How to Terminate an Employee - Baseball Bat Optional — from Jason Shinn’s Michigan Employment Law Advisor
• 50 Shades of Grey and Human Resources — from Mike VanDervort’s The Human Race Horses
• We Are Stressssssssssssssssssed — from Mark Toth’s Manpower Employment Blawg
• Federal Court: FCRA Does Not Apply To Independent Contractor Relationships — from Employer Law Report
• Why Everyone at Your Company Should Speak (A Little) English — from Harvard Business Review
• Lack of Jury Trials Isn’t Bad for Employers — from Rob Radcliff’s Smooth Transitions
• The Trade Secrets Dilemma – Sue and Disclose — from Trade Secrets Blog
• As Ozzie Guillen Learned the Hard Way, There’s No Free Speech in Corporate America — from Donna Ballman’s Screw You Guys, I'm Going Home

Wage & Hour

• Internships: The Good, The Bad, The Ones that Violate The Law — from Dan Schwartz’s Connecticut Employment Law Blog
• Wal-Mart, DOL Reach Agreement for $5M+ Settlement Over FLSA Violations — from Smart HR Manager
• Ready for your COBRA Audit? — from Todd Stanton’s Intown Employer

Labor Relations

• NLRB Quickie Election Rule Now In Effect; Here’s What It Means — from TLNT
• Responding to Outrageous Employee Conduct in the Wake of the NLRB’s Jimmy John’s Decision — from Minnesota Employer

The NLRB’s dangerous course: arbitration waivers and protected concerted activity

The NLRB has announced the filing of a complaint against 24 Hour Fitness USA, Inc., claiming that the company’s requirement that its employees submit all employment-related disputes to individual arbitration violated federal labor law.

According to the NLRB, 24 Hour Fitness, which is non-unionized, requires employees to agree, in writing and as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations, and instead resolve all employment dispute in single-employee arbitrations. The company permits employees to opt-out of this waiver, but only by submitting a company-drafted written form within 30 days of signing the original waiver.

Earlier this year—in D. R. Horton, Inc. (currently on appeal)—the NLRB held that an employer violated the federal labor law by maintaining, as a condition of employment, a mandatory arbitration agreement that did not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial. In 24 Hour Fitness, the Board seeks to extend D. R. Horton to include the 30-day opt-out. As is the case with social media, the NLRB is expanding its attacks on workplace policies in non-unionized workplaces.

I’ll give NLRB Acting General Counsel Lafe Solomon credit—he has taken an agency that had been relegated to near-obsolescence and made it very relevant. Less than 7 percent of private-sector workers belong to a labor union. By shifting its enforcement priorities to issues surrounding protected concerted activity, the NLRB has extended its reach to the 93 percent of non-unionized workers. It has also made itself the go-to agency for employees fired for complaining about work.

This focus by the Board on protected concerted activity is only going to increase. According to Mr. Solomon’s latest memo [pdf] (discussing his attendance at the Midwinter meeting of the Practice and Procedure Committee of the ABA Labor and Employment Law Section), the NLRB will be adding a page to its website “dedicated to Protected Concerted Activity matters.” In other words, businesses need to prepare themselves for increased knowledge by their employees on these issues, in addition to increased enforcement efforts by the NLRB.

Mr. Solomon and I will be sharing the dais at the NLRB Region 8 Labor Law conference. I’m kicking the conference off by moderating a panel on social media. Mr. Solomon is the lunch speaker. His topic is titled, The NLRB Today: Maintaining an Even Keel While the Storm Rages. I am very curious to hear how he describes today’s NLRB as an “even keel.” The SS NLRB leans a little too much to the port side for my (and most businesses’)taste.

$27,000 buys a lot of chalupas: Taco Bell settles religious discrimination lawsuit with EEOC

Last year, I discussed lawsuit filed by the EEOC agains a North Carolina Taco Bell franchise, claiming that it had failed to accommodate an employee's religion by requiring him to cut his hair.

Last week, the EEOC announced that it had settled the charge on behalf of the employee:

According to the lawsuit, Christopher Abbey is a practicing Nazirite who, in accordance with his religious beliefs, has not cut his hair since he was 15 years old.... When Abbey explained that he could not cut his hair because of his religion, the company told Abbey that unless he cut his hair, he could no longer continue to work at its Taco Bell restaurant....

In addition to monetary damages ($27,000), the two-year consent decree resolving the suit requires Family Foods, Inc. to adopt a formal religious accommodation policy and conduct annual training on Title VII and its prohibition against religious discrimination and retaliation in the workplace....

Does your workplace have a religious accommodation policy? Do your managers and supervisors know how to accommodate an employee's sincerely held religious beliefs (as long as it does not impose an undue hardship)? Do your managers and supervisors even understand that they have a legal obligation to accommodation employees' religious beliefs?

If you answer "no" to any of these questions, you should consider this case a reminder of your religious accommodation obligations under Title VII (and similar state laws). Implement a religious accommodation policy. Train your managers and supervisors on what that policy means and how they need to implement it. The EEOC is watching. Taking these two simple steps will help keep you off the agency's bothersome radar.


 

Honestly, we didn’t discriminate

The “honest belief rule” is one of most effective shields available to employers in discrimination cases:

As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.

To be effective, however, an employer must harness its “honest belief” properly. Consider Brooks v. Davey Tree Expert Co. (4/17/12), in which the 6th Circuit determined that an employer was not entitled to argue its honest belief in defense of an age discrimination claim.

According to the 6th Circuit in Brooks, the honest belief rule has limits:

[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Although we will not “micro-manage the process used by employers in making their employment decisions,” we also will not “blindly assume that an employer’s description of its reasons is honest.”

In Brooks, the 6th Circuit concluded that the employer was not entitled to the benefit of the honest belief rule, because it could not “point to specific facts that it had at the time the decision was made which would justify its belief in the proffered reason.”

What’s the lesson for employers? If you want to be able to argue that your honest belief justifies your decision, you better be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence, is best. As if you need another reason document, document, and document some more?

Woman fired for IVF will test bounds of Title VII’s ministerial exception

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Ohio Employer’s Law Blog. Yet, despite my management-side tendencies, I call ‘em as I see ‘em, and every now and again a story about an employer’s treatment of an employee outrages me. This is one of those stories.

According to ABC News, an Indiana Catholic church has fired one of its school teachers, Emily Herx, after it learned she was undergoing fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church official told that her attempt to become pregnant through in-vitro fertilization made her a “grave, immoral sinner.” According to the lawsuit, when Herx appealed her termination to the Bishop, he called IVF “an intrinsic evil, which means that no circumstances can justify it.”

If those two statements are true, there should be little doubt that the church fired Herx because of her IVF treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

1. Does Title VII’s prohibition against sex and pregnancy discrimination cover IVF treatments?
2. Does Herx’s employment falls outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

On the first issue, I defer (as will the court) to the 7th Circuit’s 2008 decision in Hall v. Nalco Co., which concluded that Title VII’s pregnancy discrimination amendments cover IVF as a medical conditions related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures, such as IVF treatments.

This case, however, is complicated by the fact that Herx’s IVF is contrary to the doctrine of her religious employer. According to Herx’s lawsuit, she worked as a secular literature and language arts teacher. She is not Catholic, never taught any religion classes, and was not required to complete any training or education in the Catholic faith as a condition of her employment. If there is nothing religious about Herx’s employment or responsibilities, it would seem that her job falls outside the ministerial exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed, this is exactly what the Southern District of Ohio held in a strikingly similar case just last month.

To prevail under the ministerial exception, the Diocese will have to convince the court that all of its teachers, even those of a different faith like Herx, serve as “moral exemplars” for its students. Rick Garnett, associate dean and professor of law at Notre Dame Law School, articulates this argument:

A lot of Catholic schools … every teacher brings the kids to Mass, is involved in sacramental activities…. It’s not just one teacher who teaches religion, religion is pervasively involved. The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision. [Huffington Post]

This case will be fascinating to follow, much more so for the religious implications than for the pregnancy discrimination implications. Whether Title VII protects a woman’s right to undergo fertility treatments is a fairly well-settled issue. Whether a Catholic Church has to provide that right to its secular employees, however, is open to vigorous debate. As someone who thinks that people should not have to choose between having a family and holding a job, I am rooting for Emily Herx.

WIRTW #223 (the “or are you just happy to see me” edition)

This has been a busy week in employment law land, with the EEOC protecting transgendered employees and announcing its long-awaited guidance on the use of arrest and conviction records in employment decisions. Yet, the most tantalizing story of the week comes from Murfreesboro, Tennessee, where an unfortunately-named county employee, Bill Boner, was accused of sexual harassment. The Murfreesboro Post settled on the headline, Boner rejects sexual harassment allegations. Thankfully, jimromenesko.com is all over this story to bring you the unprintable headlines the The Murfreesboro Post rejected (really):

• Boner Says Women Faking It
• Female Workers Say Boner Intimidated Them
• Boner Taking It Hard
• Sticky Situation for Boner
• Boner: “It’s Hard … on My Wife”
• EEOC to Probe Boner

There’s nothing funny about sexual harassment. But, if you can’t giggle about this story, you’re in the wrong line of work.

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

Discrimination

• Connecticut Supreme Court Stakes Out “Similarly Situated” and Statistical Standards — from Dan Schwartz’s Connecticut Employment Law Blog
• Breakdown of EEOC Guidance on Criminal Background Checks — from Nick Fishman at employeescreenIQ Blog
• The Broad Boundaries of Discrimination in the Workplace — from Dawn Lomer at i-Sight Investigation Software Blog
• Lawsuit Filing: Woman fired after donating kidney to her boss — from Chris McKinney’s Texas Employment Law Blog
• Failure to provide timely COBRA notice, retaliation? No, Sensei!!! — from Eric Meyer’s The Employer Handbook Blog
• Pregnant Employees Make Very Sympathetic Plaintiffs — from Labor & Employment Law Perspectives
• Attendance May be an Essential Function of the Job — from Employment Matters Blog
• EEOC charge against you? It need not turn into a long, costly war — from HR Cafe

Social Media & Workplace Technology

• Facebook Message Leads to Disability Claim — from Molly DiBianca’s Delaware Employment Law Blog
• U.K. Judge Allows Suit to be Served via Facebook — from Ethan Wall’s Social Media Law & Order
• Socializing Over State Lines: Social Media as a Basis for Personal Jurisdiction — from Augmented Legality
• California Provides Social Media Guidance for Financial Institutions — from Socially Aware Blog
• Employer’s Duty to Report Crimes: Employee Using a Personally-Owned iPad for Work Purposes — from From the Sidebar
• 1 In 3 Employers Reject Applicants Based On Facebook Posts — from AOL jobs

HR & Employee Relations

• Is that a whistle in your pocket? — from Walter Olson’s Overlawyered
• An Employer’s Response Guide to Whistleblower Claims — from Jason Shinn’s Michigan Employment Law Advisor
• Your BMI is 35: Should You Pay More For Healthcare? — from The HR Capitalist, Kris Dunn
• Does Smoking Affect Your Employability? — from The Proactive Employer Blog
• Worker’s Suit Claims His Boss Took over His Computer and Placed the F-Word on It — from ABA Journal Daily News
• Valve’s “Handbook for New Employees” leaked, hilarious illustrations included — from The Verge
• Dear Evil Skippy: Is It Illegal To Go Through My Employee’s Desk — from Evil Skippy at Work
• Oops!! Sorry – We Just Laid Off the Entire Staff via Email — from TLNT
• Just Because You Can, Does Not Mean You Should: What Non-Compete Lawyers and Their Clients Can Learn From Bo Ryan and “Transfergate” — from Trade Secret Litigator Blog

Wage & Hour

• Anatomy of a Wage and Hour Complaint — from Casey Sipe’s The Employer’s Lawyer
• Huffington Post Wins Victory In Bloggers’ Compensation Suit — from Wage and Hour Law Update
• Wage and Hour Cases ─ Not Going Away Anytime Soon — from The Wage and Hour Litigation Blog
• A Start-Up Nightmare: the Department of Labor Audit and How to Avoid It — from Social Media Today
• Nail Salon Must Pay Almost $236K After Court Rejects Immigration Defense Under FLSA — from Smart HR Manager
• What Does It Mean to Sell? Ask the U.S. Supreme Court — from Harvard Business Review Blog

Labor Relations

• NLRB issues guidance on new election rules, take effect April 30 — from Mike VanDervort’s The Human Race Horses
• Do You Know Your Rights? – NYT Editorial on NLRB Notice Posting Rule (Guess Whose Side They’re On?) — from Labor Relations Institute
• Senate Rejects Resolution That Would Have Nullified the NLRB’s Revised Election Rules — from Wyatt Employment Law Report
• Labor Board Meets Rising Resistance — from The Wall Street Journal
• Obama’s Renegade NLRB Is Disrupting the Recovery — from U.S. News & World Report
• Micro Union Case Hits Federal Court Of Appeals — from Labor Relations Update