Can a poor performance review count as an “adverse action?”

For an act to be considered an “adverse employment action” sufficient to support a discrimination claim, it must constitute
”a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Traditionally, a negative performance review does not constitute an adverse employment action, unless “the evaluation has an adverse impact on an employee’s wages or salary.” Or does it?

In Goldfaden v. Wyeth Laboratories (5/14/12) [pdf], the Sixth Circuit concluded that a warning letter issued to an employee constituted an “adverse action” even though the employee quit her job before she could suffer any consequences from the warning:

She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been…. We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment….

This result is even more troubling because the same opinion affirmed summary judgment for the employer on Goldfaden’s constructive discharge claim. In other words, the warning letter was not so intolerable that it compelled Goldfaden to quit, but it nevertheless could rise to the level of an adverse employment action because it could, maybe, have resulted in a lower year-end bonus.

It’s cases like this one that make it so difficult (and often frustrating) to attempt to predict outcomes for clients.

WIRTW #226 (the “press 9 for more options” edition)

You’d think that with all the posting I do about Labor & Employment Law, it’s the only area in which my law firm—Kohrman Jackson & Krantz—practices. You’d also be very wrong. Our diverse practice also covers, for example, telemarketing law.

In fact, my parter, Brett Krantz, recently co-published an article on this issue:

Brett Krantz, Chair of the Litigation group, and associate Melissa Yasinow have co-authored an article with Mark Rasch, the director of Cybersecurity and Privacy Consulting at technology company CSC. The article, entitled Please Press #5 Now: How Businesses Can Use UETA and E-SIGN to Create Signed, Written Contracts Over the Telephone, explains how businesses can use recent federal and state pro-technology laws to create signed, written contracts over the telephone. Connections Magazine, the nation’s premier magazine for the telemarketing and teleservices industry, will be publishing a shortened version of the article in its upcoming July/August Issue. The full article has already been published online in Connections Magazine’s “White Papers” Section. Please click here to access the full article.

Enjoy!

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

Discrimination

• Is Being Gay a Choice? Should It Be Protected at Work? — from Jessica Miller-Merrell’s Blogging4Jobs
• “Teacher fired over pregnancy can sue religious school” — from Howard Bashman’s How Appealing
• EEOC now publishes charge data, by state. Have a look… — from Eric Meyer’s The Employer Handbook Blog
• New Decision On The EEOC’s Pre-Suit Investigation Requirement, Giving Nod To Investigation And Conciliation Tactics Criticized By Eighth Circuit — from Workplace Class Action Litigation
• EEOC, alcoholism and discrimination: an interesting new persepctive — from Employment Law Bits
• Hiring manager: “How old are you?” — from CareerDiva by CareerDiva, Eve Tahmincioglu
• Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee's Return From Alcohol Rehab — from Employer Law Report
• New York EEOC Intends to Enforce “Ban the Box” — from employeescreenIQ Blog
• Funding Blocked for EEOC Enforcement Guidance on Criminal Records — from National Review Online

Social Media & Workplace Technology

• Use social media? Memorize these vital 12 words — from Evil HR Lady, Suzanne Lucas
• A Call for Lean and Mean Social Media Policies — from Social Media Today
• HR Struggling with Facebook Snitches — from SHRM
• Social Media background checks: Big brother in reverse — from Mike VanDervort’s The Human Race Horses
• Relax – You’ll Never, Ever be Asked For a Facebook Password — from TLNT
• Why Delaware’s Proposed Workplace Privacy Act Is All Wrong — from Molly DiBianca’s Delaware Employment Law Blog
• Slowly Stripping Away Privacy Rights? — from Social Media Employment Law Blog
• Are Employees’ Social Media Connections The Property Of Their Employer? — from Eric Welter’s Laconic Law Blog
• Alleged voyeur boss cannot pursue Computer Fraud and Abuse Act claim — from Internet Cases
• Mobile Stats — from HR Examiner with John Sumser
• Avoiding an E-discovery Nightmare in a Workplace Investigation — from i-Sight Investigation Software Blog

HR & Employee Relations

• Could You Handle Being an Employee? — from You’re the Boss Blog
• Gratuitous Sex or Sex for Gratuities? An HR Story — from Robin Schooling’s HR Schoolhouse
• How to Remove Lies From Your Resume (and LinkedIn) Without Getting Fired… — from The HR Capitalist, Kris Dunn
• Lies, Statistics, and Resumes — from costofwork
• Lessons from Yahoo’s CEO debacle: Look into EVERY job candidate — from HR Cafe
• Terminated for Minor Offense Committed 40 Years Ago — from The Proactive Employer Blog
• Dear Evil Skippy: Should We Allow Dogs At Work? — from Evil Skippy at Work
• Carefully Defining “For Cause” Termination in Employment Contract Critical to Avoid Paying for Misconduct — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• When can an employer fire an employee for medical leave fraud? — from Robin Shea’s Employment and Labor Insider
• Two Health Conditions Combine to Qualify for FMLA — from Phil Miles’s Lawffice Space
• Seventh Circuit: Pharmaceutical Sales Reps Are Exempt Administrative Employees — from Healthcare Employment Counsel
• Seventh Circuit Concludes that “Travel Time” Following Clothing Change Is Not Compensable, Setting Up a Circuit Split — from Wage & Hour Counsel
• Compensatory Time Is Only For Exempt Employees, As Law Firm Class Action Settlement Illustrates — from Wage & Hour - Development & Highlights
• Wage-and-hour litigation outpacing all other workplace class actions — from Business Insurance

Labor Relations

• District Court Strikes Down National Labor Relations Board's New “Quickie” Election Rule — from Seth Borden’s Labor Relations Today
• NLRB Suspends New Election Rules After Court Ruling — from Dan Schwartz’s Connecticut Employment Law Blog
• Your “At-Will” Policy is in Danger! — from Mike Haberman’s Omega HR Solutions

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