Heads Up: My RSS feed has changed

For those of you who follow the Ohio Employer’s Law Blog via RSS. I have changed the RSS feed for the sight.

If you have no idea what I’m talking about, you can skip the rest of this post. If you receive your daily updates via email, you can also skip the rest of this post; you’ve already been moved over, and, except for a new look to the daily email update, you won’t notice any difference and shouldn’t miss any updates.

If, however, you subscribe to the RSS feed, and read updates in a reader such as Google Reader, then please read on.

Historically, I used FeedBurner to provide the site’s feed. Google acquired FeedBurner a few years ago. Many believe that Google will soon shut FeedBurner down. In fact, last week Google shut down one major piece of FeedBurner, with only one day’s notice.

I cannot sit around and wait for Google to do the same with the entire FeedBurner service. So, I’ve migrated the feed from FeedBurner to FeedBlitz. For now, you should not see any interruptions. However, if FeedBurner shuts down, you will stop getting updates unless you re-subscribe to the new feed.

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So that you do not miss any updates, please take a moment and re-subscribe to the new feed address: http://www.ohioemployerlawblog.com/feeds/posts/default

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I know that a lot of you read my content via RSS. Please know that I’ve done my best to minimize disruptions, and accept my apology in the unlikely event you experience any inconvenience from the change.

The right way to use subjective criteria in layoffs

Reductions-in-force present a unique issue for an employer defending its decision in a subsequent discrimination case. The employer already has its legitimate, non-discriminatory reason baked into the termination—the economics of a layoff, which often causes qualified employees to lose their jobs. For this reason, reduction-in-force cases are often singularly focused on the issue of pretext.

In Beck v. Buckeye Pipeline Services Co. (6th Cir. 9/28/12) [pdf], the plaintiff claimed that the employer’s use of subjective criteria to select her for inclusion in the layoff created an inference that the employer singled her out because of her age or gender.

While agreeing the subjective decision-making can prove problematic in some cases, the court disagreed that its use is per se discriminatory.

Subjective criteria, it is true, sometimes make it difficult to distinguish between lawful and unlawful employment actions, and they deserve careful scrutiny…. When all is said and done, the use of subjective evaluation criteria does not by itself show discrimination, particularly in a reduction in force case. 

What factors did the court rely upon to conclude that this employer’s use of subjective criteria in this layoff did not create an inference of discrimination?

• There was no evidence that a disproportionately high rate of women or older workers were included in the layoff.
• There was no evidence that the employer’s use of subjective evaluation procedures was a deviation from its normal decision-making process.
• There was no evidence of dishonesty in the subjective decision-making process.

What lessons does this case teach hold for employers considering the use of subjective criteria in determining which employees to include in a workforce reduction?

1. What do your workforce demographics look like before and after the RIF, company-wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria.
2. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm, an explanation that may be enough for the employee to survive summary judgment and get his or her case to a jury.
3. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Are their objective criteria (sales numbers, for example) that could contradict a subjective evaluation? 

WIRTW #245 (the “bald IS beautiful” edition)

According to the ABA Journal, “balding men who want to advance in their careers might want to consider shaving their heads.” The ABA Journal cites an article in the Wall Street Journal discussing a recent study out of the University of Pennsylvania's Wharton School, which concluded, “Men with shaved heads are perceived to be more masculine, dominant and, in some cases, to have greater leadership potential than those with longer locks or with thinning hair.”

Hot damn! I love being masculine and dominant, with great leadership potential.

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

Discrimination

• Religious Frustration — from Smelling Some Roses
• Believe it or Not – White Male Proves Discrimination — from Texas Employer Handbook
• The Four Corners Of An EEOC Charge Can Make All The Difference In A Nationwide Employment Discrimination Class Action — from Workplace Class Action Litigation
• Nooses And The “N Word” Are In The Employment News These Days — from Employment Discrimination Report
• $$$ reasons to have a second-language anti-harassment policy — from Eric Meyer’s The Employer Handbook Blog
• A Bill to Make Employers Less Mean to Pregnant Women — from Workplace Fairness
• No, Seriously - EEOC Targeting Pregnancy Discrimination — from Phil Miles’s Lawffice Space
• 10th Circuit Finds Transferring Disabled Employee to Different Geographical Location for Better Access to Medical Care is Reasonable Accommodation — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• California’s Comprehensive Social Media Privacy Law — from Social Media, Esq.™
• Survey: 75% of Workers Are Accessing Social Media While on the Job — from TLNT
• Social Media Workplace Freedom a Hot Button for College Students and the NLRB — from Social Media Today
• Instagram surpasses Twitter in daily active mobile users in U.S. — from Boy Genius Report
• One billion people now “actively using” Facebook — from The Verge

HR & Employee Relations

• Fighting Back: Bullies and Obesity — from Molly DiBianca’s Delaware Employment Law Blog
• The Benefits of Criminal Background Screening for Your Company — from From the Sidebar
• Survey Says … 50% of Employers Have Hired People with Criminal Records — from Nick Fishman’s employeescreenIQ Blog
• Checking Your Background Check: Is Your Authorization in Compliance with the FCRA? — from LE Blog
• Here’s Your New Motivational Script to Use When Firing Someone — Or to Those Who Dare Fire You … — from The HR Capitalist, Kris Dunn
• 6 Tips to Lower Risk in High-Risk Employee Terminations — from i-Sight Investigation Software Blog
• Workplace Investigation Tip: Outside Investigators are not Tainted by Internal Politics — from Strategic HR Lawyer
• The 3 best ways to stop employee rumors — from Ragan.com
• Laughter in the Workplace Increases Productivity and Job Satisfaction — from Workplace Insights
• Trade Secret Misappropriation - $taggering Numbers For Employers to Consider — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Six Steps to Having an Unpaid Intern — from Blogging4Jobs
• ABCs of the ACA for Employers — from Stephanie Thomas’s The Proactive Employer Blog
• Take Care When Applying the Outside Sales Exemption — from HR Defense Blog
• Employer Burned for Failing to Return Employee to Equivalent Position After FMLA Ended — from Jeff Nowak’s LA Insights

Labor Relations

• NLRB Keeps Doing What It Always Does. Why Is Anyone Surprised? — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Condones Sexual Harassment — from Mike Haberman’s Omega HR Solutions
• Employee Flare: I Will Have a Venti, Half-Caf., Cappuccino - Hold the Union Propaganda — from The Labor and Employment Law Blog

New pregnancy discrimination legislation is unneeded, redux

On September 19, the Pregnant Workers Fairness Act [pdf] was introduced in the Senate. It is identical to the bill by the same name introduced in the House back in May. The bill would amend Title VII to to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. At the time, I critiqued the bill as unnecessary:

The Pregnancy Discrimination Act [already] requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

Last Friday, HuffPost Live ran a story on the re-introduction of this legislation. The host, Nancy Redd, cited my May blog post as support for the argument that this bill is unneeded. Some on the panel took issue with those that argue against the need for this legislation.

So that my position is crystal clear, I am not saying that pregnant women should be discriminated against. What I am saying, however, is that because the law requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition, Title VII already guarantees the rights laid out in the Pregnant Workers Fairness Act.

In other words, we do not need legislation to duplicate rights that already exist. If employers are not granting these rights, and pregnant workers are not receiving the accommodations they need and are requesting, then pregnant workers should be filing discrimination lawsuits. The answer lies in educating employers on their obligations under existing laws, not passing new, duplicative ones.

EEOC goes nuts as its fiscal year closes

How do you know that last Friday marked the end of the EEOC’s fiscal year? Because it filed over two dozen lawsuits that week. The filings provide a glimpse into the agencies enforcement priorities:

• 14 of the cases allege disability discrimination
• 5 allege race discrimination
• 3 allege retaliation
• 3 allege pregnancy discrimination
• 2 allege sexual harassment
• 2 allege racial harassment
• 1 alleges age discrimination

What’s more interesting than the flurry of filings, however, is the fact that only 6 allege systemic discrimination—discrimination against a group of employees based on a common policy or practice. Earlier in September, the EEOC published its draft strategic enforcement plan for the next 5 years. Its number 1 claimed priority is “eliminating systemic barriers in recruitment and hiring.” Yet, only approximately 20 percent of its flurry of filings strike at these systemic barriers.

What does this activity by the EEOC mean for employers?

• You have to remain vigilant in your efforts to rid your workplaces of all kinds of discrimination. The EEOC is watching, and, where the facts warrant, will litigate on behalf of an aggrieved individual.
• Disability discrimination is a prime enforcement target. Invest some time and money (i.e., training) to ensure that your managers and supervisors understand their obligations under the ADA to reasonably accommodate disabled employees. Review your policies to ensure that they do not single-out disabled employees or operate to deny them reasonable accommodations.

[Hat tip: Dan Schwartz]

Pay attention: NLRB issues its second social media decision in a month (Knauz BMW)

Late last week, the NLRB issued its second decision in a case involving employee use of social media. In Karl Knauz BMW, the Board concluded that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected. For the background on this case, please go here to read my post from a year ago discussing the Administrative Law Judge’s earlier decision.

The case hinged on whether Knauz BMW terminated a salesperson for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event, or for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership. The NLRB concluded that it was the latter, which did not invoke the Act’s safeguards for protected concerted activity:

It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

This case, however, is not a total victory for employers. In addition to ruling on the legality of the termination, the NLRB also ruled on the illegality of the employer’s “Courtesy” rule, which stated:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

As was the case in the Costco case decided last month, the NLRB took issue with a facially neutral workplace policy that, if taken to its illogical extreme, could potentially chill employees’ conversation about workplace conditions:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements … that object to their working conditions and seek the support of others in improving them…. A reasonable employee who wishes to avoid discipline or discharge will surely pay careful attention and exercise caution when he is told what lines he may not safely cross at work.

As was the case in Costco, Member Hayes dissented. He criticized the majority for making a stretched and tortured interpretation of the work rule at-issue. He instead called for a reasoned reading of the rule as a whole:

Reasonably construed and read as a whole, the rule is nothing more than a common-sense behavioral guideline for employees…. Nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages); rather the rule concerns the tenor of any conversation. In short, by its “Courtesy” rule the Respondent sought to promote civility and decorum in the workplace and prevent conduct that injures the dealership’s reputation—purposes that would have been patently obvious to Respondent’s employees, who depend on the dealership’s image for their livelihoods.

Unfortunately for employers, Member Hayes was out-voted 2 – 1.

What now for employers, as we are starting to receive some clarity on these issues from actual Board decisions instead of advice memoranda?

• Unfortunately, the rationale of these decision on the legality of workplace communication policies is as strained as that suggested by the Office of General Counsel earlier this year. For now, the best course of action is to tread cautiously when dealing with these issues (and hope that November’s election brings some relief to the American business community from activist federal agencies).
• In the meantime, however, employers need to pay careful and diligent attention to this issue. Social media and other employee communication policies remain on the forefront of the NLRB’s hit parade. No matter how this issue ultimately shakes out, and no matter how ludicrous this result seems, this case, Costco, and Fresenius USA Manufacturing (giving employees a right to make vulgar, offensive, or threatening statements, and then lie about them to their employer) deserve the attention of every company doing business in America.

[Hat tip: Workplace Prof Blog]

Now the NLRB says employers can’t regulate threatening or offensive speech (this is getting ridiculous)

Hopefully you’re not getting tired of me railing against the National Labor Relations Board for its parade of opinions designed to undermine the rights of employers to regulate the workplace. As long as the NLRB keeps pumping out these opinions under the generic umbrella of “protected concerted activity,” I feel a moral obligation to continue writing about them.

The latest victim is Fresenius USA Manufacturing [pdf], which concluded that an employer cannot discipline or terminate employees who make vulgar, offensive, or threatening statements.

In this case, an open and active supporter of the union, employee Kevin Grosso, anonymously scribbled vulgar, offensive, and threatening statements on several union newsletters left in an employee breakroom. The anonymous notes included “Dear Pussies, Please Read!” and “Warehouse workers, RIP.” No one disputed that Grosso was attempting to encourage his fellow employees to support the union in an upcoming decertification election.

In a good-faith response to female employees’ complaints about those statements, Fresenius investigated the statements. The investigation included questioning Grosso, during which he lied about writing the statements. Upon confirming Grosso’s authorship, the company suspended and discharged him for making the statements and lying about writing them.

The NLRB concluded that the employer was within its rights to investigate the statements and question Grosso, but could not suspend or discharge him as a result.

[A]lthough we find that Fresenius did not violate the Act by investigating and questioning Grosso, we find … that Fresenius did violate the Act by suspending and discharging him…. Grosso’s handwritten comments encouraged warehouse employees to support the Union in the decertification election. We therefore conclude that, in writing them, Grosso was engaged in protected union activity…. Fresenius discharged Grosso for writing those comments.

You might be thinking to yourself, why can’t we circumvent all this nonsense with a simple conclusion that the employer was within its rights to terminate Grosso for his dishonesty? Well, the NLRB has an answer to that question, too … and you’re not going to like it either:

Fresenius’ discharge letter to Grosso also cited his false denial of responsibility for the comments, but Fresenius could not lawfully discipline him on that ground…. Fresenius’ questioning of Grosso put him in the position of having to reveal his protected activity, which Board precedent holds an employee may not be required to do where, as here, the inquiry is unrelated to the employee’s job performance or the employer’s ability to operate its business…. As a result, although Fresenius had a legitimate interest in questioning Grosso and lawfully did so, Grosso had a Sec. 7 right not to respond truthfully.

Do you read that quote the same way I do? Did the NLRB really say that investigating complaints of harassment, consistent with an employer’s obligations under Title VII, is “unrelated to the employee’s job performance or the employer’s ability to operate its business.”

Perhaps the dissenting opinion put it best:

Notwithstanding their disavowals, my colleagues thereby impermissibly fetter the ability of employers to comply with the requirements of other labor laws and to maintain civility and order in their workplace by maintaining and enforcing rules nondiscriminatorily prohibiting abusive and profane language, sexual harassment, and verbal, mental, and physical abuse.

The business community needs to pay careful attention to cases such as Fresenius USA Manufacturing. The NLRB continues to dangerously regulate employers rights to control and remedy workplace misconduct, all in the name of “protected concerted activity.” Forcing employers into a Hobson’s Choice between the NLRA and Title VII is just plain silly. If the NLRB continues its path, employers will be left with little recourse against misbehaving employees, and at-will employment may become an historical relic.