Confidential workplace investigations are under attack … by the EEOC?

Earlier this month, I took the NLRB to task for its holding in Banner Estrella Medical Center 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. Lorene Schaefer, writing at One Mediation, brings us news that the EEOC has joined the fray and is also attacking the confidentiality of workplace investigations.

According to Ms. Schaefer, the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.

I’m speechless. Confidentiality is a cornerstone of any thorough and meaningful internal investigation. As one of my readers astutely stated in a comment to my post about the NLRB’s attack on confidentiality:

Permitting folks to talk about the investigation impacts the investigator’s strategy, possible spoliation of evidence by witnesses who now know about the investigation when under normal circumstances we would have at best a pretty good chance of keeping the investigation confidential, interfering with work relationships the more and more people talk about the investigation, the more things become both diluted and exaggerated (remember the game of telephone?), it is so much more than just the word “Confidential.”

The EEOC is supposed to prevent workplace discrimination and harassment. How can it possibly take issue with a key component of the crucial tool employers use to weed out unlawful harassment? This position simply does not make any sense. The EEOC should be championing confidential investigations, not signaling that they constitute a “flagrant” violation of Title VII. Prohibiting employers from keeping workplace investigations confidential will render investigations meaningless. I do not think this is a result the EEOC wants to foster.

WIRTW #237 (the “don’t judge a book by its cover” edition)

One of my earliest law school memories did not occur inside the lecture halls, but instead was a passing meeting in the hallway. I recall noticing a classmate’s turban, beard, and dark complexion, and thinking, “terrorist.” Soon thereafter, when Amardeep Singh and I became good friends, I learned he was a Sikh (and definitely not a terrorist). My initial reaction to seeing Amar for the first time embarrasses me to this day.

When I heard the news on Sunday about the tragedy in Wisconsin, I immediately thought of my old friend, who, after law school, co-founded the Sikh Coalition and currently serves as its National Director of Programs. Earlier this week, The Guardian ran a poignant piece written by Amar, entitled The post 9/11 prejudice that menaces American Sikhs. This is part of what he said:

Fed a steady diet of Bin Laden and Taliban images, most Americans simply associate the turban, which Sikh men wear as an expression of faith, with terrorism. Turban equals terrorist in the minds of too many.

In part, Sikh Americans are collateral damage of a modern climate that rarely has time for explanations of our culture, our heritage, and our beliefs. This enduring legacy of 9/11 continues to stubbornly attach itself to our community. Not only do many people not know of the peaceful beliefs of our faith, but they wrongly associate us with acts of unspeakable terrorism….

We all deserve to live in a society where no one need fear violent attack—whether at a temple, mosque, synagogue or church—simply because of our ethnic and religious identity.

As a society (especially one that calls itself a melting pot), we should not need an excuse to confront our own biases and prejudices. This awful catastrophe reminds us that we should view people as people, and not as colors, religions, or stereotypes.

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

Discrimination

• Facebooking about "naked Twister" may doom one's sexual harassment claims — from Eric Meyer’s The Employer Handbook Blog
• Some Employers Health Plans Deny Pregnancy Coverage For Dependents — from TLNT
• Three New High-Visibility Lawsuits—Seven Types of Alleged Discrimination — from Employment Discrimination Report
• Construction worker too “manly” to win same‑sex harassment claim — from EmployerLINC
• “Court Revives Discrimination Lawsuit against … the EEOC” — from Walter Olson’s Overlawyered
• When the EEOC Goes Too Far--Part II — from Molly DiBianca’s Delaware Employment Law Blog
• Can I Be Fired for Being Gay? — from Jessica Miller-Merrell’s Blogging4Jobs
• Getting ADA accommodations right from the very beginning — from HR Cafe
• Chick Fil-A and the Trickle Down Effect — from Tim Eavenson’s Current Employment
• The EEOC Came Knocking (Part One): What Should I Do? — from Suzanne Boy’s Southwest Florida HR Law & Solutions

Social Media & Workplace Technology

• Will the Chick-fil-A YouTube firing pass legal muster? — from Robin Shea’s Employment and Labor Insider
• Facebook says 'Likes' fall under free speech, supports sheriff fired over political controversy — from The Verge
• Chris Rock: Social Media Disasters Only Matter If Your Fans Care — from Kashmir Hill’s The Not-So Private Parts
• Facebook And Twitter Subpoenas, Privacy And The Law — from From the Sidebar

HR & Employee Relations

• HR’s Same-Sex Marriage Policy — from Tim Sackett at Fistful of Talent
• “Ascent of the A-Word” — from Bob Sutton
• I don’t talk about my sex life at work — from Mike VanDervort’s The Human Race Horses
• Forced to resign: What are your options? — from Evil HR Lady, Suzanne Lucas
• Mergers & Acquisitions: Don't Forget About Employee Compliance with Nondisclosure Agreements — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• It Will Cost Me How Much? A Story of Misclassification and Improper Deductions — from Mike Haberman’s Omega HR Solutions
• Third Circuit Defines “Joint Employment” Under FLSA — from Phil Miles’s Lawffice Space
• What Is the Minimum Value of Work? — from Jim Brennan at Compensation Cafe
• Fourth Circuit: CEO's Administrative Assistant Properly Classified As An Exempt Administrative Employee — from Wage and Hour Law Update
• Litigation Over Unpaid Internships Under the FLSA Heats Up — from Workplace Prof Blog
• Employers Violating Overtime Laws On The Rise — from Overtime Lawyer Blog
• Seventh, Third Circuits Reach Opposite Conclusions in FMLA Cases — from Joe’s HR and Benefits Blog

Labor Relations

• Employers must be able to recognize a Weingarten request in order to avoid liability under the NLRA — from Employment Law Matters
• NLRB Decision Complicates Investigations in the Workplace — from Labor Relations Update

Richard Kimble and the ADA

Lt. Philip Gerard: Why don’t you stop running and turn yourself in, Kimble?

Dr. Richard Kimble: There’s a man I have to find. A one-armed man. When I find him, I’ll turn myself in.

Lt. Philip Gerard: Still sticking to that same tall tale? “A one-armed man killed my wife.” The truth is … you’re guilty not only in my eyes, but in the eyes of the law.

– The Fugitive (1965).

In Rosebrough v. Buckeye Valley High Sch. (6th Cir. 8/8/12) [pdf], the 6th Circuit concluded that an individual born without a hand was qualified under the ADA to work as a bus driver trainee.

Here are the facts. Tammy Rosebrough, born without a left hand, applied for cook’s position at Buckeye Valley North High School. During the interview process, a supervisor told her that if she was interested in a position the school was in desperate need of bus drivers. Rosebrough applied for the bus driver job. The Ohio Department of Education requires a waiver before an individual missing a limb is allowed to operate a school bus, for which Rosebrough also applied. While she was waiting to receive her waiver, the school district began Rosebrough’s training. Perceiving bias against her because of her missing hand, Rosebrough never finished her training, and ultimately sued for disability discrimination.

The Court never reached the issue of whether the school district discriminated against Rosebrough on the basis of her disability. Instead, it reversed the trial court’s determination that she was not “qualified” to work as a bus driver trainee, and remanded the case to be decided on the remaining issues.

The plain language of the ADA covers discrimination on the basis of disability during job training…. The statutory inclusion of “job training” protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer.

When the events at issue in this litigation occurred, Rosebrough was in the job training period necessary to obtain her CDL and learn how to perform as a school bus driver…. It is unnecessary to speculate as to whether she was “otherwise qualified” for the training position because Buckeye Valley concedes Rosebrough “was qualified to be a ‘trainee,’ was in fact a ‘trainee,’ and was given the training.”

In other words, the Court did not permit the school district to argue that Rosebrough wasn’t qualified to work as a bus driver training because it permitted her to train for the position.

The odds are slim that you will have a one-armed applicant seeking to drive one of your commercial vehicles. Yet, the lesson from Rosebrough is much broader. Allowing an employee to work in a position makes it difficult to argue later that the employee was not qualified for that same position.

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