Do your agreements provide for waivers of collective actions?

Earlier this year, KeHE Distributors underwent a reduction in force. It offered a retention bonus to any sales representatives who would continue their employment for a period of time, as long as they signed a Separation and Release Agreement. Each Agreement contained a “General Release of Claims and Covenant Not to Sue,” which included a promise not to join “any class or collective action” against KeHE arising under the FLSA or other federal laws. 69 employees accepted the retention bonus and signed the agreement. Within weeks, two employees launched collective actions under the FLSA claiming that KeHE unlawfully denied them overtime compensation. In Killion v. KeHE Distribubtor (N.D. Ohio 8/3/12) [pdf] the Court dismissed from the lawsuit any employees who had signed the Agreement.

The plaintiffs argued that because of the relatively small amount of money at stake in any individual wage and hour claim, preventing employees from joining collective actions would gut their substantive rights under the statute. The court, however, disagreed:

This Court recognizes that the ability to form a collective action necessarily implicates policy considerations regarding the enforcement of the FLSA. Because the amount of money at stake may be small, the right to join a larger pool of similarly situated individuals enables the pool to attract counsel who, if victorious, is entitled to recover fees….

Here, this Court has no idea how much money is at stake…. Nor does the record disclose how many potential Plaintiffs would comprise the collective action, whether Plaintiffs can afford to pursue their claims individually, or how much it would actually cost them to pursue individual claims. Moreover, attorneys’ fees are mandatory…, which means individual Plaintiffs will still be able to vindicate their rights under the FLSA….

The statute permits a collective action, but it does not require one…. Section 216(b) is clear: Plaintiffs may proceed collectively, not shall. By signing the Agreement they waived that right.

Simple enough, right? An employee is permitted to waive his or her right to file or join a collective action under the FLSA. Killion involved a separate agreement signed as part of a reduction in force. This rule, however, is not limited to post-employment covenants. The same rationale would apply to employment agreements, or other pre-employment documents such as employment applications, offer letters, or other documents signed by an employee incidental to his or her employment.

Of course, Killion is but one opinion of one district court, and this issue is unsettled enough to warrant some cautious deliberation. Before embarking on a campaign to require that your employees sign away their participation in collective actions, you might want to wait for the 6th Circuit to have its say on the issue.

Telecommuting as a reasonable accommodation

More than two years ago, I hypothesized that the breadth of the ADA’s 2009 amendments would likely cover fringe medical conditions such as chemical sensitivities. I wrote:

The ADA amendments are intended to make it much easier for individuals to demonstrate that they meet the definition of “disability.” To have a disability, an individual must be “substantially limited” in performing a “major life activity” as compared to most people in the general population. An impairment need not prevent, or even significantly or severely restrict, the individual’s performance of a major life activity…. Major life activities include daily functions, as well as the operation of major bodily functions (which would include, for example, the respiratory system).If an employee has a chemical sensitivity to certain smells, that allergy will likely substantially affect the employee’s respiratory system, thus rendering the employee “disabled” under the ADA.

Core v. Champaign County Board of County Commissioners (S.D. Ohio 7/30/12) [pdf], confirms my prediction. In that case, an Ohio federal court ruled that an employee sufficiently pleaded a claim for disability discrimination under the ADA based on an alleged sensitivity to perfume. The plaintiff, Pamela Core, claims that her employer failed to accommodate her chemical sensitivity to certain perfumes worn by her co-workers. She had asked that her employer ban certain scents in the workplace. When it ignored her requests, she asked to be allowed to work from home as an accommodation, which the employer rejected.

The issue of whether a sensitivity to perfume qualifies as a disability protected by the ADA only begs this question—what is the appropriate accommodation for this disability? The court in Core concluded that telecommuting may be a reasonable accommodation in this case:

With regard to the assertion that working from home is an unreasonable accommodation as a matter of law, such blanket assertion is not necessarily supported by Sixth Circuit precedent. Certainly, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home[;]” however, the court also recognizes the possibility of exceptions to the general rule “in the unusual case where an employee can effectively perform all work-related duties at home[.]”

Certainly, communications technology has advanced to such a state that the proposition of employees working from home is not quite as burdensome or untenable…. Today, in this Court’s view, it may not “take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.” Nevertheless, the ultimate determination of reasonableness is a fact specific inquiry and a question for the fact-finder.

The Court did not go as far to conclude that telecommuting is a proper reasonable accommodation in this or any other case, but instead ruled that a jury should decide the reasonableness of the accommodation in this case.

Some employers, rightly or wrongly, believe that employees need to be present in the workplace to effectively perform their jobs. If you fall on this side of the debate, what steps can you take to safeguard against a court second-guessing your decision to deny a telecommuting request as a reasonable accommodation?

1. Prepare job descriptions that detail the need for time spent in the office.
2. Document the cost of establishing and monitoring an effective telecommuting program.
3. Engage in a dialogue with disabled employees to agree upon an alternative accommodation with which both sides can live.

The appropriateness of telecommuting as a reasonable accommodation will vary from case to case. As Core points out, telecommuting as a reasonable accommodation remains the exception, not the rule. The line that separates exception from rule, however, will continue to shift as technology makes telecommuting more feasible, widespread, and accepted.

[Hat tip: Employer Law Report]

Does a "good faith belief" about an illegal pay practice support an FLSA retaliation claim?

April Hurd worked as a nurse’s aide for Blossom 24 Hour We Care Center. The company fired her 10 days after she complained about unpaid overtime. Easy case for the employee? If you think this is an open and shut case of retaliation under the FLSA, you are mistaken.

In Hurd v. Blossom 24 Hour We Care Center, Inc. (Ohio Ct. App. 8/2/12) [pdf], the court quickly disposed of Hurd’s retaliation claim:

There is no evidence that Hurd engaged in protected activity by requesting overtime. The U.S. Supreme Court has held that home health care workers are not entitled to overtime compensation because they constitute FLSA-exempt “domestic service” employees. Thus, because Hurd is exempt, her request for overtime did not constitute a protected activity. 

Should this case have been this simple? In Title VII retaliation cases, there is a long-standing rule that an employee engages in protect activity by opposing an alleged unlawful employment practice with a reasonable a good-faith belief that the employer has violated Title VII. Some courts have extended this rule to retaliation cases brought under the FLSA.

If an exempt employee has a good faith belief that he or she is not exempt and complains about missing overtime pay, shouldn’t that employee receive the same benefit as an employee complaining about an alleged unlawful employment practice under Title VII? Shouldn’t the employee’s good faith belief in the perceived illegality be put to the test?

What is the lesson for employers? Despite the ruling in Hurd, if an employee you have classified as exempt complains about overtime pay, do not assume it is safe to retaliate. The court deciding that employee’s case might not be as generous as the court was in Hurd.

WIRTW #236 (the “reactions” edition)

Wednesday’s post dissecting the NLRB’s attack on confidential workplace investigations received a lot of feedback, on Twitter, in various LinkedIn groups, and in the comments. Here’s two of the best:

The best comment, however, came via email from a reader who has asked to remain anonymous:

In its attempt to stay relevant, the NLRB has revealed how very out of touch it really is.

I couldn’t have said it better myself (and thanks to everyone for contributing to the discussion).

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

Discrimination

• Recent Religious Discrimination Cases: Thou Shalt Train Recruiters About Religious Discrimination — from Employer Defense Law Blog
• Is Obesity Now a Disability Under the ADA? — from Hiring & Firing
• “An employee walks into a hospital wearing a Jesus lanyard…” — from Eric Meyer’s The Employer Handbook
• Whoa Baby! Managing pregnancy in the workforce — from Employer Legal Advocate
• ABC, 123, EEOC and Pregnancy Discrimination — from The Proactive Employer Blog
• Marissa Mayer’s Pregnancy: An Interesting Window into Women, Pregnancy, and the Workplace — from Jason Shinn’s Michigan Employment Law Advisor
• When the EEOC Goes Too Far — from Molly DiBianca’s Delaware Employment Law Blog
• Fifth Circuit Rejects Case Asserting Sex-Stereotyping Theory of Sexual Harassment — from Russell Cawyer’s Texas Employment Law Update
• Sexual Harassment is more than Innocent Fun — from Mike Haberman’s Omega HR Solutions
• Five sure-fire ways to get an age-based harassment complaint — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• Fourth Circuit Adopts “Narrow Reading” of Authorization under the Computer Fraud and Abuse Act — from Trade Secrets and Noncompete Blog
• Social Media Lessons from the 2012 Olympics — from i-Sight Investigation Software Blog
• How the Right Social Media Strategy Now Will Help You in a Crisis Later — from Social Media Today
• “Facebook Firing” Claims Under State Law Too — from Social Media Employment Law Blog
• Stop Trying to Micro-Manage Employees’ Use of Social Media — from Chris McKinney’s Texas Employment Law Blog
• Inside The Mind Of A Person Who Stalked A Female Co-Worker — from Kashmir Hill’s The Not-So Private Parts
• Top 10 Guidelines for Social Media Background Checks — from ere.net
• Illinois Enacts Social Media Privacy Law — from Shear on Social Media Law
• A Guide to F**king Up in the Digital Age — from Lifehacker
• Is Social Media Use @ Work Dropping? — from Mark Toth’s Manpower Employment Blawg

HR & Employee Relations

• How Do I Deal With Unwelcome Questions About My Down Syndrome Son? — from Evil Skippy at Work
• I Swear Because I Care — from Jason Lauritsen
• Use the Chik-Fil-A Mess to Teach Your Employees About Freedom of Speech — from The HR Capitalist, Kris Dunn
• Distraction or Stress Reducer? Why a Dog-Friendly Workplace Might Work — from TLNT
• 6 Tips For Asking Terminated Employees To Leave the Workplace Immediately — from Minnesota Employer
• Top 10 tips for conducting an effective sexual harassment investigation — from HR Hero Line
• I don’t like how you smell—you’re fired! — from EmployerLINC
• The Catch-22 of Criminal-Background-Check Guidance — from Human Resource Executive Online
• Bill Would Generally Ban Pre-Employment Criminal History Inquiries — from Washington D.C. Employment Law Update

Wage & Hour

• Chart of FLSA Claims by Year - It's a New Record! — from Phil Miles’s Lawffice Space
• Individual employees can privately settle FLSA claim without court/DOJ approval, rules 5th Circuit — from Mike Maslanka’s Work Matters

Labor Relations

• NLRB Seeks Feedback on Backpay Award Questions — from Labor Relations Counsel
• NLRB Acting General Counsel Begins Attack On At-Will Policies — from Wyatt Employment Law Report
• Ignoring it Doesn’t Make it Go Away: What Non-Union Employers need to know about the NLRA — from Fistful of Talent
• Court Reaffirms Ruling Striking Down NLRB’s “Quickie Election” Rules — from Labor Relations Today
• New “Union-Relations” Privilege Recognized — from LE Blog

How late is too late for an FMLA medical certification?

Under the FMLA, an employee requesting leave for a serious health condition must provide a medical certification for the leave upon request by the employer. The employee has 15 days to return the requested certification, unless it is not practicable to do so under the particular circumstances. If an employee fails to provide certification, the employer may deny the FMLA leave.

What happens, however, if an employee returns the requested medical certification late—after the expiration of the 15-day time limit? According to the Northern District of Ohio, in Kinds v. Ohio Bell Telephone Co. (7/30/12) [pdf], an employer can lawfully deny FMLA benefits when an employee submits the medical certification beyond the 15-day deadline, even if the employee only misses it by a short amount of time.

Ohio Bell’s decision to deny Kinds FMLA coverage due to untimely certification is justified…. In spite of ample notification by Ohio Bell, Kinds did not submit certification by the 13th…. Ohio Bell would have been justified in denying coverage for this failure alone, but the company nonetheless granted Kinds an extension. Kinds failed to submit certification by the January 27, 2010, deadline as well. Finally, on February 16, 2010, Kinds submitted the medical certification, but it failed to provide an explanation—a request made by FMLA Operations as a condition for giving Kinds a third extension—as to why she failed to submit certification earlier. As a matter of law, it cannot be said that Ohio Bell’s refusal to accept Kinds’s twice late and still inadequate certification—submitted one month past the FMLA required 15-day period—constituted interference with Kinds’s FMLA rights.

To sum up:

• How late is too late for an employee to submit a medical certification to support a request for FMLA leave? One day.
• Can you extend the 15-day period and accept a late certification? Yes.
• Do you have to? No.

A letter to the NLRB on its latest position against confidential workplace investigations

Dear National Labor Relations Board,

You and I have not always seen eye to eye, especially on the issue of protected concerted activity. You might think I’m out to get you. I’m not. I just want to make sure that you fully understand the real-world implications of the rules you are making. For example, take your latest target: workplace investigations.

In Banner Estrella Medical Center [pdf], you concluded that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity:

To justify a prohibition on employee discussion of ongoing investigations, an employer must show that it has a legitimate business justification that outweighs employees’ Section 7 rights…. Respondent’s generalized concern with protecting the integrity of its investigations is insufficient to outweigh employees’ Section 7 rights. Rather, in order to minimize the impact on Section 7 rights, it was the Respondent’s burden “to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.”

Workplace interviews are high-stakes affairs that carry serious liability repercussions for the employer. Moreover, it is often difficult to determine who is telling the truth and who is lying. This difficulty is exacerbated by the fact that those conducting these investigations are not trained detectives, but often HR personnel.

One sure-fire tool one can use to figure out who’s telling the truth and who’s lying is to see how everyone’s stories jive or contradict. For this reason, one of the key instructions that should given in any workplace investigatory interview is that the employee should keep everything said confidential. That way, later interviewees will not be influenced, and do not have an opportunity to compare (and prepare) their stories. 

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

NLRB, I implore you to consider the real-world implications of your rulings on protected concerted activity. Halting confidential workplace investigations serves no one’s interest, including the employees you are sworn to protect.

Very truly yours,

 

Jon Hyman

“Bitch” as sexual harassment: context matters (sort of)

Bitch (n): 1) A lewd or immoral woman; or 2) a malicious, spiteful, or overbearing woman—sometimes used as a generalized term of abuse.
– Merriam-Webster Online Dictionary

According to a recent survey, half of all employees swear on the job. Passananti v. Cook County (7th Cir. 7/20/12) answers the question of whether there exists a line between swearing as workplace banter and swearing as unlawful harassment.

After losing her job as a deputy director with the Cook County Sheriff’s Department, Kimberly Passananti sued, claiming that her director had subjected her to sexual harassment by calling her a “bitch” on “numerous occasions” over a “progressive period of time.” A jury awarded Passananti $4.2 million in damages, of which $70,000 was compensation for the sexual harassment. The trial court set aside the entire verdict. The 7th Circuit reinstated the verdict on the sexual harassment claim.

The Court started its analysis of whether the use of the word “bitch” constitutes sex-based harassment by dismissing any argument that its common use has neutered the word:

We recognize that the use of the word “bitch” has become all too common in American society, and its use has permeated many workplaces. Common use, however, has not neutralized the word as a matter of law.

The Court concluded that even though “bitch” is sexually based, its use must be examined in context to determine whether it constitutes harassment “because of sex.”

We do not hold that use of the word “bitch” is harassment “because of sex” always and in every context…. [T]he use of the word in the workplace must be be viewed in context…. But we do reject the idea that a female plaintiff who has been subjected to repeated and hostile use of the word “bitch” must produce evidence beyond the word itself to allow a jury to infer that its use was derogatory towards women. The word is gender-specific, and it can reasonably be considered evidence of sexual harassment….

Whether its use is sufficient evidence of actionable sexual harassment is, of course, another matter. As with so many other things, when gender-specific language is used in the workplace, these cases and others recognize that context is key. We must proceed with “[c]ommon sense, and an appropriate sensitivity” to that context to distinguish between general vulgarity and discriminatory conduct or language “which a reasonable person in the plaintiff’s position would find severely hostile or abusive.”

In other words, “bitch” is sufficiently gender-specific such that in most cases a jury should apply its common sense to determine whether the pejorative use of the word towards a female employee constitutes harassment because of sex.

In the day-to-day management of your employees, however, you should not get bogged down in legal minutia whether one employee calling another employee a “bitch” is actionable sexual harassment. If an employee complains that he or she is being called vulgarities or other offensive names, you have only one option—investigate and take appropriate corrective action.

[Hat tip: Judy Greenwald at Workforce]