WIRTW #234 (the “have it your way” edition

Recently, Reddit listed the nine menu items that fast food workers say you should never eat at one of their restaurants. I think number 10 should be anything with lettuce on it from a Mayfield Heights, Ohio, Burger King. Earlier this week, the franchise owner fired three employees who believed they had anonymously posted the following photo of one of them using bins of lettuce as shoes:

Here’s the full story, as reported by WKYC:

The lesson for employers and employees? Online photos are not really anonymous. They almost always contain something called “metadata,” which tells when and where the photo was taken. In this instance, the metadata enabled the franchise to track down, and fire, the offending employee. In fact, according to Mashable, it took all of 20 minutes for someone to decipher the metadata, post the address of the store, contact the news, and inform Burger King’s corporate website.

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

Discrimination

• Is obesity a disability under the new ADA? Probably. — from Robin Shea’s Employment and Labor Insider
• Court Ruling Highlights Effect of Obesity on Employers — from Thompson’s HR Compliance Expert
• 7 ways to avoid trouble with the EEOC — from Inside Counsel
• What is Discrimination? — from ERC Insights Blog
• Solving the Smelly Problem of Fragrance-Induced Disabilities — from Washington Workplace Law
• Cocktail Waitresses, Discrimination, and the Entertainer Exemption — from Stephanie Thomas’s The Proactive Employer Blog
• How Not To Retaliate — from Troutman Sanders HR Law Matters
• Marriage and the Workplace - Not Always a Perfect Match — from Jason Shinn’s Michigan Employment Law Advisor
• Sleeping at Work Probably Won't Help Plaintiff's Discrimination Claim — from Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Discovery of Plaintiff's Social-Networking Profile — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Posts From An Employee’s Termination Meeting? Plan for It — from Dan Schwartz’s Connecticut Employment Law Blog
• Can liking a Facebook status protect an employee from termination? — from Employment Law Bits
• Social Media Madness in the Modern Workplace — from i-Sight Investigation Software Blog
• The Cost of Social Media Distractions in the Workplace — from Minnesota Labor & Employment Law Blog
• Personal vs. Professional on the Job: Where Do We Draw the Line? — from TLNT
• Ten Apps Topping Enterprise Blacklists — from Social Media Strategies Summit Blog
• Workplace “Bring Your Own Device” Policies Save Money Now, But May Risk Future Litigation — from ABA Journal Daily News
• BYOD Party! — from The Personnel Files

HR & Employee Relations

• Why Women Still Can’t Have It All — from The Atlantic
• New Yahoo CEO Is Six Months Pregnant [Insert Gasp] — from Fistful of Talent
• Doesn’t Marissa Mayer have a Non-Compete??? — from Trade Secrets & Non-Compete Blog
• Why companies must stop office bullying — from Evil HR Lady, Suzanne Lucas
• Lifeguard fired for saving a drowning swimmer? Company policy gone bad… — from Warren & Associates Blog

Wage & Hour

• Unpaid Internships May Prove to be Meal Ticket After All… — from Wage & Hour Defense Blog
• Hearst Must Face Class Action by Interns — from Joe’s HR and Benefits Blog
• Using “Rolling” Method to Calculate FMLA Leave Almost Always the Best Choice for Employers — from Jeff Nowak’s FMLA Insights
• To minimize FMLA lawsuits, hire slow and fire fast (before the FMLA request) — from Eric Meyer’s The Employer Handbook Blog
• Visit to doctor for prescription refill is not “treatment” for purposes of FMLA — from Employment Law Matters

Labor Relations

• Reinventing Unions — from Workplace Prof Blog
• The NLRB Continues to Push the Envelope — from Labor & Employment Law Perspectives
• Top Six Illegal Policies In Your Employee Handbook — from Donna Ballman’s Screw You Guys, I’m Going Home

820,000 reasons to have a social media policy

Yesterday, I read an article entitled, Companies Should Think Twice Before Creating Social Media Policy, which argued that “companies who scrutinize their employees’ personal accounts and social media activity may be doing more harm than good.” Yet, companies that ignore employees’ social media activities squarely put themselves at risk.

For example, consider Espinoza v. County of Orange (Calif. Ct. App. 2/9/12). The plaintiff, Ralph Espinoza, a deputy juvenile corrections officer, was born without fingers on his right hand. Co-workers started an anonymous blog, where they referred to Espinoza as the “one handed bandit” and the “rat claw.” The blog became increasingly offensive, culminating in posts such as, “Fuck you one hand bandit! You can shove that claw of yours up your ass!” and “hey rat claw, wrote a poem 4 you: Roses are red; Violets are blue; I fucked your mother in the ass; And she had you!!!!!!!!!”

Espinoza learned of the blog from a sympathetic coworker. Espinoza complained to management, who did little other than asking employees to put the blog to rest. Indeed, the blog continued unabated for eight weeks while management investigated.

A jury awarded Espinoza $820,000 for the harassment.

The court of appeals upheld the verdict, concluding that an employer can be liable for off-duty harassment conducted by employees:

Defendant seems to be taking the position all of the complained of conduct occurred outside the workplace and summarily claims there was no evidence “a current employee” posted any of the comments…. But even on the merits the argument fails….

Employees accessed the blog on workplace computers as revealed by defendant’s own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues. It was reasonable for the jury to infer the derogatory blogs were made by coworkers.

There are many risks to employers from the un-monitored use of social media by employees. Harassment, such as that seen in the Espinoza case is just the tip of the iceberg. Employers also need to worry about retaliation, defamation, and breaches of confidentiality, not to mention harm to the corporate reputation. For these reasons, employers need social media policies to establish the rules of road for employees, who do not understand that they can be held responsible for their off-duty, online activities.

[Hat tip: Technology for HR Blog]

Disability services provider sued for, what else, disability discrimination

I’m four years older than my brother. For this reason, growing up I would sometimes get punished for things for which my brother was let off the hook. The reasoning? You should know better. And, I’m sad to say that now that I have two kids of my own, I have found myself repeating this refrain to my older child. The sins of the father, I guess.

Apparently, “you should know better” carries over to the world of employment law. The EEOC has filed a disability discrimination lawsuit against Pace Solano, a California disability services provider. According to the EEOC:

After interviewing for a position to teach developmentally disabled adults … Katrina Holly was immediately offered a job and asked to take a pre-employment physical exam. Holly successfully completed all of the tests and disclosed that she had partial paralysis in one hand to the examiner, so that he would have her complete medical information. Despite written verification from its own doctor that Holly was cleared to do the job, Pace Solano withdrew its job offer due to her hand. When she asked the company to reconsider, the response was, “Your injury makes you a liability; you don’t want to get hurt any more than you already are, do you?”

I agree wholeheartedly with these words from EEOC District Director Michael Baldonado: “While we admire the work that Pace Solano performs for the community, there is simply no excuse for rejecting an applicant because of a disability which in no way impacts her performance.” A lawsuit is simply a set of unproven allegations. If, however, there is any whiff of truth in this lawsuit, Pace Solano should settle this case and train its people so that this public relations nightmare is not repeated.

The “cat’s paw” strikes back

In Staub v. Proctor Hosp., the Supreme Court passed judgment on the “cat’s paw” theory of liability in discrimination cases—an employer’s liability for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker. The Staub Court concluded that an employer can be liable for the discriminatory animus of a non-decision making supervisor who intends to cause, and does proximately cause, an adverse employment action.

In Chattman v. Toho Tenax Am. (6th Cir. 7/13/12) [pdf], the 6th Circuit applied Staub to reverse summary judgment in a race discrimination case. Chattman alleged that his employer’s HR director, Tullock, who recommended his termination for horseplay and fabricated that other supervisors supported the decision, was racially biased.

In support of this allegation of race-based animus, Chattman pointed to three separate incidents:

1. Tullock told a “joke” that O.J. Simpson was innocent and that Nicole Brown was killed by their son because O.J. Simpson responded to a question from his son by answering “go axe your mother.”
2. Tullock responded to another employee’s complaint that her son had gotten into trouble at school for fighting by saying “you know what my grandmother always says about boys scuffling? That’s how the nigger graveyard got full.”
3. Tullock commented about then-Presidential candidate Barack Obama by saying “well you better look close at Obama’s running mate because Americans won’t allow a nigger president.”

Even though Tullock was not the decision maker, the court concluded that a jury question existed under the cat’s paw theory:

Chattman has shown that a genuine issue of material fact exists regarding whether Tullock intended that Chattman be disciplined…. There can be little doubt that Tullock desired Chattman’s termination when he made his recommendation and fabricated the agreement of the other supervisors….

Chattman alleges that Tullock knew that white employees engaged in horseplay but never reported any of those incidents to upper management, instead reporting the only incident on record of a black employee engaging in horseplay.

Tullock was the Human Resources manager, and he actively inserted himself in the decisionmaking process. He both misinformed and selectively informed … about the incident. A reasonable factfinder could find Tullock’s actions were a proximate cause of the adverse decisions.

When the Supreme Court decided Staub last year, I cautioned that it upped the ante for employers in discrimination cases:

The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Chattman does nothing to dissuade me of my earlier opinion.

What is the practical takeaway for employers? You better know who you have managing and supervising your employees. Companies do not make personnel decisions in a vacuum. Executives often rely on the front-line managers and supervisors for advice on who and when to discipline or fire. Yet, under Staub, businesses are on the hook for the discriminatory animus of these managers and supervisors, even if they have nothing to do with the ultimate decision. You never want a bigot managing your employees. The cat’s paw, however, provides employers added incentive to purge them from your managerial ranks.

Despite what some think, employers also do not set out to cheat and steal

Earlier this year, I engaged in a debate with plaintiff’s attorney (and author of the excellent employee-side blog, Screw You Guys, I’m Going Home) Donna Ballman over whether discrimination lawsuits are sins of commission or omission. I argued that most employers are well-intentioned, but sometimes act out of inexperience with the complexities of myriad employment laws. Donna argued that many employers act out of malice and deserve to be on the receiving end of discrimination lawsuits.

Last week, writing at Aol Jobs, Donna turned her attention to wage and hour laws. She listed “10 tricks employers use to cheat workers out of overtime.” Donna’s premise, however, is faulty. Managers and executives are not spending their days in locked, smoke-filled conference rooms scheming how to cheat extra hours and steal overtime pay from their employees. Paychecks and timesheets are neither a ploy nor a tactic. Instead, most employers are well-intentioned but ignorant. They are ignorant of the myriad, twisted rules and regulations that govern why, when, to whom, and how much overtime is to be paid.

It’s no secret that I believe the Fair Labor Standards Act is woefully outdated and needs a modernized, top-to-bottom rewrite. As I’ve written before:

Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

Reforming the system into a manageable and understandable set of rules is the best means to ensure that workers are paid a full wage for all hours worked. The system, as it is currently set up, dooms even the most well-meaning employer to failure.

WIRTW #233 (the “Duck Soup” edition)

Yesterday, my friend Dan Schwartz (an A+ employment law blogger) published his (Not So) Definitive Top 10 List of Employment Lawyers To Follow Online (in response to another list published by the HR Examiner). Needless to say, I want to thank Dan for featuring me so prominently on his list. Thanks also to Molly DiBianca (another A+ employment law blogger) and Heather Bussing (writing at HR Examiner), who both had some very kind words to say about yours truly on their blogs in the last 24 hours.

If I was acting as curator of a list such as Dan’s, the only change I’d make is to swap Dan’s name for mine. You cannot go wrong reading the content of anyone he lists, and I’m proud to have all as colleagues and friends. If you are not following each of the employment lawyers recommended by Dan, you are missing out.

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

Discrimination

• EEOC settles complaint over heavy equipment operator with epilepsy — from Walter Olson’s Overlawyered
• Ignoring complaints about air conditioning could subject a business to a discrimination claim — from Employment Law Bits
• EEOC Sends Confusing Signal to Employers — from Hiring & Firing
• It’s tough to prove age bias after getting caught sleeping on the job — from Eric Meyer’s The Employer Handbook Blog
• Huh? EEOC’s now searching for cases of ‘beauty bias’? — from HR Morning

Social Media & Workplace Technology

• BYOD policies jacking up companies’ IT costs — from Boy Genius Report
• Know when to leverage BYOD and when to forget it — from Consumerization Blog
• Cool Things: Deron Williams Signing His New Contract on an iPad — from iPad Insight
• 6 Personal Secrets Your Facebook Profile Isn’t Keeping — from Mashable
• PA Judge Provides Social Media Discovery Rundown — from Phil Miles’s Lawffice Space
• Reading a non-friend’s comment on Facebook wall was not a privacy invasion — from Internet Cases
• Should HR Have Facebook Friends at Work — from hr bartender
• Is Social Media the NEW Smoke Break? — from The Buzz on HR
• Did Glassdoor’s Integration With Facebook Make Your Coworkers’ “Anonymous” Salaries Less Anonymous? — from Kashmir Hill’s The Not-So Private Parts

HR & Employee Relations

• Is Your Boss a Bert or an Ernie? — from Molly DiBianca’s Delaware Employment Law Blog
• Chicken and stitches — from Charlie Plumb’s EmployerLINC
• Why You Should Send Out Rejection Letters — from Above the Law
• HR Lessons from Higgs Boson — from Stephanie Thomas’s The Proactive Employer Blog
• Are flexible schedules a blessing or a curse? — from Evil HR Lady, Suzanne Lucas
• Pros and Cons of Suing the Ex-Employee’s New Employer — from Delaware Non-Compete Law Blog
• Penn State Adopts New Policy on Employee Background Checks — from Nick Fishman’s employeescreenIQ Blog
• How to Conduct Fair and Unbiased Investigation Interviews — from Dawn Lomer’s i-Sight Investigation Software Blog

Wage & Hour

• Supervisor’s Comments After Employee Seeks Leave for Hysterectomy Creates Viable FMLA Claims — from Jeff Nowak’s FMLA Insights
• Be careful what you ask for: retaliatory counterclaims under the FMLA — from John Holmquist’s Michigan Employment Law Connection
• How to Reduce the Salary of Exempt Level Employees — from Mike Haberman at Blogging4Jobs
• Courts Split over FLSA Damages for Emotional Distress — from Smart HR Manager
• Hiring Kids — from Texas Employer Handbook

Labor Relations

• Is It Time We Finally Part Ways With the National Labor Relations Act? — from TLNT
• Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful — from Labor Relations Update
• NLRB Finds Union Waiver in Two Recent Decisions, Including the Closely-Watched Hospital Flu Shot Case — from Healthcare Employment Counsel

When defending employment cases, chasing attorneys’ fees is a snipe hunt

My summer reading list includes Joel Stein’s Man Made: A Stupid Quest for Masculinity. The book recounts the self-proclaimed effete Stein’s journey to become more masculine in the wake of the birth of his son. In one chapter, Stein spends a weekend with a boy scout troop to learn how to camp. The troop’s hazing includes sending Stein on a snipe hunt. For the uninitiated, a snipe hunt is a practical joke played on inexperienced campers, who are sent to hunt an imaginary bird or animal (the snipe).

Believe it or not, snipe hunts have something to do with defending discrimination cases. Often, I hear this outrage from clients: “I can’t believe we’re being sued for this. I want to counter-sue to collect our attorneys’ fees!” Yes, there are statutes and rules in place that permit a defendant, in certain and extreme circumstances, to collect their attorneys’ fees from the plaintiff. But, there are few cases that will meet this high threshold for recovery. In reality, the likelihood of a judge ordering that a plaintiff-employee pay the defendant-employer’s attorneys’ fees under one of these fee-shifting mechanisms is on par with winning the lottery.

If you want to take any solace from this loser-doesn’t-pay system, consider these words, published yesterday by the 6th Circuit Court of Appeals, in Gibson v. Solideal USA, Inc. [pdf]:

As an initial general proposition, we are not entirely unsympathetic to Solideal’s position. Statutes designed to empower employees in the vindication of their rights may, at times, be used as bases on which a plaintiff asserts claims that are later determined to be without merit. Undeniably, large employers may be forced to incur significant litigation expenses in defending against such claims. However, if this Court were to follow the course now advocated by Solideal, it would effectively hold that a plaintiff who elects to forgo formal discovery and whose claims are unable to withstand summary judgment is responsible for paying all fees and costs the defendant incurred in connection with the litigation. This is a bridge too far.

Litigation is time consuming and expensive. Some cases (such as the one discussed yesterday by Dan Schwartz, at his Connecticut Employment Law Blog) can go on for a decade. We all have principles. We don’t like to pay money to an undeserving plaintiff when we know that we are right. And, when we prove that we are right, we think the plaintiff should pay us for our grief and aggravation. The system, however, is not set up to reward even the most deserving of employers in this way. The sooner employers realize that chasing reimbursement of their attorneys’ fees is a litigation snipe hunt, the sooner they can focus their efforts on the task at hand, concluding the case as quickly and cost-effectively as possible.