6s wild! 6th Circuit affirms contractual 6 month limitation for employment claims

Between the following two options—a federal statute or a private employment agreement—which wins?

• The federal statute (USERRA), which, at the time, provided for a four-year statute of limitations, and which states that it “supersedes any … contract, agreement, … or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter.”

–or–

• The employment agreement, which provides, “I … agree that any action, claim or suit against [Defendant] arising out of my application for employment, employment, or termination including, but not limited to, claims arising under State or Federal civil rights statutes must be brought within one hundred and eighty (180) days of the event giving rise to the claim or be forever barred. I waive any and all limitation periods to the contrary.”

In Oswald v. BAE Industries (5/16/12) [pdf], the 6th Circuit ruled that the contract trumped USERRA.

After returning from serving with the Marines in Iraq, Jerome Oswald claimed that BAE limited his duties and responsibilities compared to his pre-deployment work, failed to give him a raise, transferred him to a lesser position, and ultimately fired him.

Unfortunately for Oswald, he waited until almost three years after his termination to file suit against BAE. The 6th Circuit concluded that his feet-dragging doomed his lawsuit:

Plaintiff’s employment contract does not eliminate all procedural rights in that it only shortens the time frame that Plaintiff can raise a USERRA claim. Because the contractual period of limitations diminished a right under USERRA that was merely procedural, [it] does not override the contractual limitations period on that basis….

Because Plaintiff’s complaint was untimely under the 180-day period in the contract, the district court did not err in granting summary judgment to Defendant….

There are two key takeaways from this case:

1. This case might no longer good law under USERRA. In 2008, the Veterans’ Benefits Improvement Act provided that there “shall be no limit on the period for filing the complaint or claim” under USERRA. If there cannot exist any “limit on the period for filing,” it is unlikely that a contract can impose such a bar.
2. Even if employers no longer can shorten the statutory period to file a claim under USERRA, this case serves as a good reminder that employers can use contractual provisions to shorten the statutory period for host of other claims. In a state like Ohio, which has a six-year limitations period for all discrimination claims except age, the ability to significantly shorten the filing period is a powerful weapon that too few employers deploy.

Terminated CFO illustrates the confidentiality risks social media pose

According to a recent survey by Intel (h/t: Lifehacker), 85% of American adults share information about themselves online, while 90% think others are sharing too much. Maybe the former CFO of Francesca’s Holdings Corp., Gene Morphis, should have heeded the latter and shared less about his company’s inner workings.

On Monday, Francesca’s announced that it fired Morphis for improperly communicating company information through social media. A quick review of Morphis’s Twitter feed and (very public) Facebook Wall offers some possible suspects.

Maybe it was this tweet:

Or maybe it was this one:

Or maybe this one:

Or, maybe it was this Facebook post:

Or, maybe it was this one:

Social media presents a real risk of corporate breaches of confidentiality. It is easy to tell your employees, “Think before you click.” (Hey, that’s a catchy title for a book.) Yet, 76% of the Inc. 500 lack a social media policy for their employees, and 73% of all employers conduct no social media training. If you aren’t educating your employees about the risks and benefits of social media, both in and out of the workplace, you are not only missing a golden opportunity, but you also leaving yourself exposed to breaches of confidentiality such as that which befell Francesca’s. These issues are not going away.

Businesses that ignore the possibility that their employees can divulge trade secrets and other confidential and proprietary information via Twitter, Facebook, and other social media do so at their own peril. Did Morphis’s disclosure harm his ex-employer? Probably not. But, the company’s swift and decisive reaction to any breach of confidentiality will make it easier down the road for it to protect its confidential information when it really matters. Mark my words. The day will come when a court will invalidate a corporate trade secret because of a lax social media policy.

As an aside, I’m leading off tomorrow’s NLRB Region 8 Labor Law Conference [pdf], discussing social media policies and protected concerted activity. NLRB Acting General Counsel Lafe Solomon is the lunch speaker. I am very interested to hear his thoughts on how employers can balance their right to limit disclosures of confidential information against his perception that social media policies that prohibit such disclosures violate the NLRA.

Reasonable accommodations and commute times

How far do you have to go to accommodate an employee’s disability? In Regan v. Faurecia Automotive Seating (5/10/12), the 6th Circuit provides some boundaries, and teaches us a lesson about accommodation best practices.

Alisha Regan—an assembly line worker at Faurecia—suffers from narcolepsy, a sleep disorder that causes excessive sleepiness and frequent daytime sleep attacks. When her supervisor pushed back by an hour the start and end times of her shift, Regan advised that her narcolepsy would make it difficult for her to get to work, as it would push her commute into rush hour, causing longer commute times and a greater likelihood of sleepiness.

When the company refused to allow her to work her original schedule, Regan resigned, noting the “tremendous consequence” the change in work hours would have on her narcolepsy. She then filed suit, claiming that the company’s refusal violated the disability discrimination laws.

The court of appeals affirmed the trial court’s decision that the ADA does not require an employer to accommodate an employee’s commute to and from work:

While an employer is required to provide reasonable accommodations that eliminate barriers in the work environment, an employer is not required to eliminate those barriers which exist outside the work environment. We find … that the Americans with Disabilities Act does not require Faurecia to accommodate Regan’s request for a commute during more convenient hours.

This case is not the first I’ve covered discussing whether an employer has an obligation to provide a reasonable accommodation for an employee’s commute. For example, in Colwell v. Rite Aid Corp., the 3rd Circuit reached the opposite conclusion, finding that an employer must change an employee’s work hours if needed to enable a disabled employee to commute to and from work.

The real lesson here isn’t whether employers do, or do not, have to accommodate a disabled employee’s commute to and from work. Given the conflict between Regan and Colwell, I’d say this issue of open for interpretation (even though Regan is controlling in Ohio). Instead, the lesson is how employers should handle these issues when they arise. The ADA requires that the employer and employee engage in an interactive process (a back and forth to determine whether and what type of accommodation would be effective).

What shouldn’t you do in a situation such as this one? Don’t dismiss the employee’s request outright (as the employer appears to have done in Regan). Don’t force the employee to take FMLA leave as a prerequisite to the interactive process (as the employer in Regan appears to have done).

Each conversation with an employee (which should be documented in his or her confidential medical file) is an opportunity to establish your consideration of the employee’s specific needs in light of the specific and essential job requirements. If you legitimately cannot start a production line an hour early to accommodate an employee’s commuting schedule request, then so be it. But, how can you (and a court) judge the reasonableness of your decision if you never even have the conversation in the first place?

I don’t like this opinion; Facebook “like” as free speech?

One of the biggest misnomers that people have about their rights in the workplace relates to free speech and the 1st Amendment. I could comfortably retire if I had a dollar for every time in my career that I have heard, “But I have a right to free speech; I can say what I want and not get fired.” The reality is that private-sector employees have no right to free speech. The 1st Amendment only protects public employees.

The issue of free speech arose in a novel context in Bland v. Roberts (E.D. Va. 4/24/12). B.J. Roberts, the sheriff of Hampton, Virginia, was running for reelection. He learned that some of his employees supported his opponent, Jim Adams, after discovering that they had “liked” Adams’s Facebook page. After Roberts won reelection, he decided not to retain the services of the Adams supporters. The employees claimed that Roberts had violated their free speech rights (as exercised via their Facebook “like” of his opponent).

The court disagreed, concluding that merely clicking the “like” button on a Facebook page is not Constitutionally protected speech:

It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection…. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [the] posts from one click of a button…. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper.

I was going to write a long, detailed, explanation of how the court got it wrong in this case, how “liking” a Facebook page expresses one’s support for, or positive opinion about, that Page. But, Professor Eugene Volokh, writing at The Volokh Conspiracy, beat me to it:

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression—though it takes just one mouse-click, it publishes to the world text that says that you like something….

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous….

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point.

Thanks Professor Volokh. I couldn’t have said it better myself.

[Hat tip: Lawffice Space and Delaware Employment Law Blog]

WIRTW #225 (the “drive thru” edition)

Did you catch my appearance on DriveThruHR yesterday? You mean you weren’t glued to your computer at 1 pm, hanging on my every word about HR, employment law, social media, background checks, the EEOC, and the NLRB? I’ll put aside my offense, and offer you a second chance to hear my musings.

Listen to internet radio with Wempen and Tincup on Blog Talk Radio

Thanks to William Tincup and Bryan Wempen for having me on. Let’s do it again soon.

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

Discrimination

• Conn. Supreme Court Rejects $10M Verdict; Insubordination is Not Protected Speech — from Dan Schwartz’s Connecticut Employment Law Blog
• Hostility At Work Is Expensive (And Wrong) — from Troutman Sanders HR Law Matters
• Do we need another pregnancy bias law, or just a bigger hammer? — from CareerDiva, Eve Tahmincioglu
• How Employee Performance Reviews Can Help or Hurt an Employment Discrimination Claim — from Jason Shinn’s Michigan Employment Law Advisor
• Law and Order: Human Resources Unit — from HR idiot
• FMLA leave meets ADA “reasonable accommodation” — from Walter Olson’s Overlawyered
• Joint Evaluations Reduce Implicit Bias — from Stephanie Thomas at Compensation Cafe

Social Media & Workplace Technology

• Tips for Protecting Social Media Information as Trade Secrets — from Ethan Wall’s Social Media Law & Order
• Who Does Your LinkedIn Profile Belong To? — from Fistful of Talent
• How to Use Twitter to Find Niche Candidates — from Kara Mignanelli’s Social Media Strategies Summit Blog
• Password Protection Act to prohibit employers from gaining access to Facebook accounts — from The Verge
• Why We Need A “Password Protection Act” Against Employers — from Kashmir Hill’s The Not-So Private Parts
• Social Media: Useful Tool or Employment Pitfall? — from CPEhr
• April Fools’ Day Prank Leads To Trade Secrets Litigation — from Trading Secrets

HR & Employee Relations

• Waaah: United States Ranks 25th For Being A Mom — from Workplace Diva
• The Value of Returning Moms to your Workforce — from The Tim Sackett Project
• President Obama supports same sex marriage; what does this mean for HR? — from Warren & Associates Blog
• The Nine C’s of Engagement and Why EVERYTHING is Communication — from Ann Bares’s Compensation Force
• Welcome to Apple — from TiPb
• Can Employers Ask For Applicants’ W-2 or Tax Returns? — from California Employment Law Report
• Does Résumé “Lying” Really Matter if You Can Perform? — from Mike Haberman’s HR Observation’s Blog
• A Lie-Detector Test for Resumes — from Entrepreneur
• What “The Avengers” can teach you about the workplace — from The Work Buzz
• Checking In with Employees (Versus Checking Up) — from Harvard Business Review

Wage & Hour

• Dewey Have Any WARN Act Liability? Let’s Discuss — from Above the Law
• Seventh Circuit Surprise: Appeals Court Finds Pharma Reps Exempt Under Administrative Exemption Without Waiting for Supreme Court — from The Wage and Hour Litigation Blog
• A movement emerges: Will unpaid internships disappear? — from David Yamada’s Minding the Workplace
• You Can’t Be Sick Unless You’re Pre-Sick — from Frank Roche’s KnowHR Blog
• You Can’t Make This Stuff Up! Firefighter, MMA fighter dealt serious blow — from EmployerLINC

Labor Relations

• How you’ve been screwed – whether you know it or not from Mike VanDervort’s The Human Race Horses
• NLRB’s Plan: Expand labor's influence from Employment Matters Blog
• NLRB: Barring employees from discussing salary is a bad idea from Eric Meyer’s The Employer Handbook Blog
• The NLRB’s War on “At Will” Disclaimers from The Personnel Files
• Defense Counsel’s Deposition Questions about Employees’ Union Activity Were Unlawful from Labor Relations Counsel

The FMLA and the honest belief rule: monitoring leave of absence abuse

Last week, I discussed the bounds of the “honest belief rule” as a defense to a discrimination claim. Yesterday, in Seeger v. Cincinnati Bell Telephone Co. [pdf], the 6th Circuit used that same defense to affirm the termination of an employee who claimed retaliation under the FMLA. This case, though, has wider implications for employer who use surveillance to monitor the legitimacy of their employees’ medical leaves.

Tom Seeger took an approved leave of absence under the FMLA for a herniated lumbar disc. Four days after Seeger’s doctor certified him as completely unable to work—including any light duty, which entitled him to receive paid disability leave under the employer’s policy—two of Seeger’s co-workers saw him walking, seemingly unimpaired, at the Cincinnati Oktoberfest. One of the employees, who knew Seeger was collecting paid disability leave, reported his sighting to CBT’s human resources manager.

CBT conducted an investigation, which consisted of obtaining sworn statements from the two employees who saw Seeger, reviewing Seeger’s medical records, disability file, and employment history, and consulting with CBT’s internal medical manager. Based on the inconsistency between Seeger’s reported medical condition and his reported behavior at Oktoberfest, CBT terminated Seeger for “disability fraud” (over-reporting his symptoms to avoid light-duty and continue collecting disability payments).

Relying on the “honest belief rule,” the 6th Circuit concluded that CBT’s termination decision did not violate the FMLA:

CBT made a “reasonably informed and considered decision” before it terminated him, and Seeger has failed to show that CBT’s decisionmaking process was “unworthy of credence.” … The determinative question is not whether Seeger actually committed fraud, but whether CBT reasonably and honestly believed that he did….

CBT never disputed that Seeger suffered from a herniated disc…. Seeger’s ability to walk unaided for ten blocks and remain at the crowded festival for ninety minutes understandably raised a red flag for CBT, giving it reason to suspect that Seeger was misrepresenting his medical condition in an attempt to defraud CBT’s paid-leave policy.

This case has wide implications. There are many laws that entitle employees to take time off from work: FMLA, ADA (disability), PDA (pregnancy), Title VII (religious accommodation), and state workers’ compensation laws, to name a few. Many companies use surveillance to curb leave of absence abuses. I am not suggesting that you surveil every employee who takes leave from your workplace. Without a good faith belief supporting the surveillance, a court could conclude that your actions are unlawful.

If, however, you have a good faith reason to test the legitimacy of an employee’s leave via surveillance or other monitoring, Seeger's invocation of the honest belief rule will offer you some protection if you misinterpret the results of your investigation.

I’ll be guesting at Lunch with DriveThruHR, tomorrow at 1 pm

Tomorrow, I’ll be spending my lunch with DriveThruHR, human resource’s #1 daily radio show. You can listen live at 1 pm EDT at www.drivethruhr.com, which will also archive the show for future listening.

I’m looking forward to my half-hour with hosts Bryan Wempen and William Tincup, talking about HR and whatever else keeps me up at night with corporate organizations. Questions or comments during the show? You can call in at (347) 996-5600, or tweet using #dthr or @drivethruhr.