It’s your last chance … to avoid retaliation

Last month, the EEOC announced a half-million dollar settlement with BASF Corporation. The agency alleged that BASF retaliated against a poor performing employee by insisting, as part of a “last-chance agreement”, that the employee not file any charges of discrimination with the EEOC. Concerned about the agreement’s effect on his civil rights, the employee refused to sign; the company fired him.

Agreements are wonderful tools to use with our employees. They come in all shapes and sizes—employment agreements, severance agreements, settlement agreements, and last-chance agreements, to name a few. One benefit from an agreement is that it can limit an employee’s ability to bring suit against an employer. For example, many employment agreements contain clauses that waive one’s right to ask for a jury trial. Severance agreements customarily contain releases of claims, waivers of rights, and covenants not to sue.

No matter the agreement, however, there is one clause that it cannot contain—a covenant by the employee waiving his or her right to file a charge of discrimination with the EEOC. Employees have an absolute right to seek vindication of their rights with the EEOC, and a requirement that an employee waive that right is retaliation. You can require that the employee waive his or her right to collect any money as a result of any charge filed with, or lawsuit filed by, the EEOC. Once you cross the line and mandate a waiver of the right to file a charge, you have retaliated.

In this case, this lesson cost BASF $500,000. The EEOC and I do not always see eye to eye. The lesson for employers to take away from this case, however, is valuable, and comes courtesy of the agency:

“The EEOC has an inherent, institutional interest in maintaining open lines of communication with people who believe they may be victims of discrimination,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “That is why employers who attempt to break that line of communication by dissuading employees from filing EEOC charges are breaking the law.  Courts get that, and with this case, we hope more employers will as well.”

The EEOC’s Chicago District Director John Rowe, added, “Cognis presented the victims in this case with a terrible, illegal choice: lose your job or lose your civil rights. Under the law, no worker has to make that kind of choice. Employers would be better served by working to ensure that their employees are free from discrimination, rather than threatening their workers with termination in an effort to make sure that employees don’t complain.”

This post originally appeared on The Legal Workplace Blog.

Customer preference does not protect employers from race discrimination claims

CNN reports that a Flint, Michigan, nurse is suing her hospitalbecause it kowtowed to a man’s request that no African-American employees care for his baby. The lawsuit [pdf] outlines her key allegations:

     11. The father told the Charge Nurse that he did not want any African Americans taking care of his baby. While telling the Charge Nurse, he pulled up his sleeve and showed some type of tattoo which was believed to be a swastika of some kind.

     12. After the father made the discriminatory request to not allow African Americans to take care of his baby, instead of flatly denying the request, the Charge Nurse called the Nurse Manager, Defendant Osika.

     13. Defendant Osika told the Charge Nurse, Herholz, to re-assign the baby to another nurse and to advise Plaintiff that Defendant Osika, would speak to her supervisor and take care of it the next day.

     14. Plaintiff was re-assigned on or about October 31, 2012 because she is African American….

     19. When Plaintiff reported to her work, she learned that during that day there was a note prominently posted on the assignment clipboard that read as follows: “NO AFRICAN AMERICAN NURSE TO TAKE CARE OF BABY.” Plaintiff was shown a picture of the note.

Let’s make this as clear as possible. Adhering to the request of a customer is not a defense to a race discrimination claim. As one court succinctly stated : “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” (Note that the same might not hold true for a customer preference based on gender, because employers can claim a bona fide occupational qualification as a defense to a sex discrimination claim).

If you find yourself in a position of having to face down a customer making such a request, take a stand. Tell the customer, “We don’t treat our employees like that, and if you can’t deal, we don’t need your business.” Be the better corporate citizen. It’s not just the legal way to act, it’s the moral way to act.

Of storks and honesty—avoid shifting reasons when defending an employment decision

“Norah doesn’t want to have babies when she’s older because she doesn’t want them cut out of her belly.” This is what my wife reports our six-year-old daughter told her a few weeks ago.

“I told her,” my wife continues,” that they don’t always have to cut them out of your belly. Sometimes, babies come out through your private parts.” Then she tells my daughter to leave it at that until she’s older. Norah,  curiosity apparently sated, hasn’t brought it up since.

My response: “What’s wrong with the stork?”

“I don’t want to lie to her,” my wife retorts.

“Santa Claus, Easter Bunny, Tooth Fairy … Stork. We lie to her all the time about these things. What’s wrong with the stork?!”

As it turns out, my wife is right (don’t let her read this; I’ll never hear the end of it). When we are caught in a lie, we lose credibility. And when we lose credibility, we are not trusted on the important stuff.

Case in point—Jones & Carter, Inc., which the National Labor Relations Board decided earlier this month. In that case, the Board found that the charged employer had unlawfully fired an employee for discussing salaries with coworkers. In and of itself, this case is not newsworthy. As the November 26, 2012, opinion of the Administrative Law Judge in the same case [pdf] pointed out in ruling for the terminated employee:

The Board has long held that an employer cannot lawfully prohibit employees from discussing matters such as their pay raises, rates of pay, and perceived inequities. Accordingly, when an employer forbids employees from discussing their wages among themselves without establishing a substantial and legitimate business justification for its policy, the employer violates the Act.

Pay attention, however, to why the ALJ and the NLRB ruled in the employee’s favor. They ruled for the employee because the employer lied about the reason for the termination:

Williams [the HR manager] and Cotton [the chief operating officer] gave markedly different testimony at the [unemployment] hearing as compared to their testimony in these proceedings. During the hearing before the Board, both Williams and Cotton maintained that Teare was terminated for harassing Janik rather than for discussing salary information. During the [unemployment] hearing, however, both Williams and Cotton asserted that Teare’s discharge resulted from her violation of Respondent’s confidentiality policy…. [A]n employer’s shifting reasons for discharge may provide evidence of an unlawful motivation.

It’s trite to say honesty is the best policy. But, when defending an employment case, honesty and consistency are essential. And, if you can’t be honest because the honest reason is illegal, then maybe you should consider biting the bullet and settling.

photo credit: Enokson via photopin cc

Obsessing (compulsively) over reasonable accommodations

I grew up with a guy who really liked the Presidents of the United States (the actual Presidents, not the 90s alt-rock band). He was so fond of them, in fact, that he had a complete collection of presidential figurines in his bedroom. He kept them in chronological order, in perfectly straight rows, on his dresser. And he instinctively knew if you moved one out of line. He’d swoop in and fix it almost as quickly as one could say “John Adams.”

As far as I know, this person did not have obsessive-compulsive disorder. But, what if he did, and he what if he worked for you? Would you have to accommodate this employee’s OCD, and if so, how?

The first question is the easy one to answer. Under the ADA’s liberal definition of disability, OCD is almost certainly a covered mental disability.

The second question, however, is trickier. If the OCD inhibits the employee’s ability to perform the essential functions or his or her job, then, yes, you have to make a reasonable accommodation, but only if you can do so in way that will enable the employee to perform those affected essential functions.

In other words, it depends. Consider these two examples—

• In Earl v. Mervyns, Inc. (11th Cir. 2000), the plaintiff, a retail manager, claimed that his OCD prevented him from arriving to work on time in the morning. The court agreed with the employer that punctuality was an essential function of his position, and concluded that no accommodation would meet the needs of his OCD. Thus, the court deemed the plaintiff “not qualified” under the ADA and upheld the dismissal of his disability discrimination claim.

• Yet, in Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001), the court concluded that the employer failed to consider whether either a leave of absence or telecommuting arrangement would have enabled the plaintiff, a medical records transcriber, to perform her job with her OCD.

The lesson here is not so much about accommodating OCD as an ADA-covered disability, but a broader lesson about handling any disability in the workplace. You need to have a dialogue with an employee about reasonable accommodations. Without opening the channels of communication, you will never know what is feasible. More importantly, without the dialogue, you probably have not satisfied your obligations under the ADA. As the court in Humphrey correctly pointed out:

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations…. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees…. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible….

Moreover, … the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.

In other words, talk with the employee. You’d be surprised how many employment problems you could head off with an earnest and open conversation.

Until tomorrow…

WIRTW #261 (the “lonely hearts club” edition)

Since this is Valentine’s week, I thought I’d share of the best “workplace romance” themed posts I read this week:

• Don’t Break Hearts When Drafting Your Company’s Policy for Office Romance — from Workplace Insights
• Sexual Harassment and “Love Contracts” — Office Romance to Paperwork! — from WinWinHR
• Happy Valentine's Day, 70% Of Office Romances Fail — from Workplace Diva
• Managing Workplace Romance...Or Not? — from ERC Insights Blog
• Surprising Findings Revealed in New Survey on Workplace Dating Habits — from EmployerBrief
• Valentine’s Day Lesson: Why Office Relationships Are Self-Destructive — from TLNT
• Office Romances – Is Love in The Air – In-House? — from InhouseBlog

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

• EEOC Seeks Recommendations for Future Investigations and Conciliations Quality Control Plan — from Washington D.C. Employment Law Update
• Civil Rights Commissioner Takes Exception to EEOC Background Check Rules — from Nick Fishman at employeescreenIQ Blog
• The EEOC on Lesbian/Gay Employees and Sex Discrimination — from Workplace Prof Blog

Social Media & Workplace Technology

• Internet-prompted firings: Are they lose-lose for employers? — from Technology for HR
• 8 Tips to Prevent a Social Media Meltdown — from Evil HR Lady, Suzanne Lucas
• Why You Can't Delete Your Way Out of Your Social Media Mess — from Employer Law Report
• Damning E-mails: Can We Talk? — from The D & O Diary

HR & Employee Relations

• HARASSED: Why You Need to Add These Text Exchanges to Whatever Harassment Training You Do — from The HR Capitalist, Kris Dunn
• Implementing a dog-friendly workplace policy — from Employment Law Bits
• Does the Pope Get Severance Pay? — from Blogging4Jobs
• Your New Dress Code Policy Should Include a “No Side Boob” Clause — from KnowHR Blog

Wage & Hour

• Going Gaga over the Not-So-Little Overtime Monster — from Molly DiBianca’s Delaware Employment Law Blog
• Swag bag message to NY Fashion Week attendees: “Pay Your Interns” — from Minding the Workplace
• 20 Years After FMLA, What's Changed and What Hasn't? — from Harvard Business Review
• Toasting 20 Years of FMLA — from SHRM Blog
• New FMLA Regulations Effective Now — from Mike Haberman’s Omega HR Solutions
• Maternity, paternity leave and ‘sensitive situation’ bring up FMLA questions — from HR Hero Line
• Keep an eye out for a new paid-sick-leave bill in Congress — from Eric Meyer’s The Employer Handbook Blog
• Connecticut’s Paid Sick Leave (PSL) Law: Does It Work? — from Dan Schwartz’s Connecticut Employment Law Blog

Labor Relations

• President Obama Re-nominates Block and Griffin to the NLRB — from Labor Relations Today
• If At First You Don’t Succeed… — from LaborPains

 

photo credit: SunnySideUpStudio via photopin cc

We ♥ our phones, but should employees be paid for using them off-duty?

True confession time. I have a Pavlovian response to the new message chime on my iPhone. I can’t help myself. When my phone beeps, I reach for it. I have no choice.

I’m an exempt employee, which means that I am paid a weekly salary, with no eligibility for overtime, regardless of how many hours I work per week. What, however, if I was non-exempt? Could I be owed overtime for my Pavlovian email checking?

Three and a half years ago, I asked, “Lawsuits over off-the-clock smart phone use ask, “What is work?” Last month, one federal court provided us the beginning of an answer.

In Allen v. City of Chicago, a police sergeant filed a collective action on behalf of himself and all similarly situated employees for the city’s failure to pay overtime for time spent outside of work reading and responding to emails on their city-issued Blackberries. According to the plaintiff:

All of the depositions taken to date reveal a workforce… that is expected to be available twenty-four [hours] per day via Blackberry. All of the deponents receive and respond to an onerous amount of email and telephone calls on a daily basis. All deponents felt obligated to respond to these email communications and telephone calls while off duty. Regrettably, a culture has developed where police officers feel compelled to work for free in order to possibly gain a promotion and/or maintain their coveted assignment in a specialized unit.

The district court conditionally certified the collective action:

[W]hile the amount of overtime officers spent on their department-issued BlackBerries may have varied, the policy that allegedly violated the FLSA did not vary: the policy of not granting overtime compensation for off-duty work on BlackBerries…. At the first stage, despite the potential variations in or de minimis use of the department-issued BlackBerries, the Court can “envision a scenario” where the Plaintiffs  and potential class members are similarly situated.

A few points to make—

1. This opinion is not a decision on the ultimate issue of whether the employees are owed overtime for their off-the-clock use of their mobile devices. It is a conditional certification of a collective action based on a low threshold showing of similarity. We will have to wait and see how the court handles the central legal issue, whether reading and replying to work emails off the clock is compensable “work” under the FLSA.

2. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

3. In reporting on the opinion, The Huffington Post quotes the plaintiffs’ lawyer, “Everybody can relate to this because people are being asked all the time these days to work for free and they are being told to work for free using their phones.” In other words, these claims are dangerous. If you require non-exempt employees to be available by email 24/7, then you are potentially exposed. To protect yourself, let your non-exempt employees go off the clock. If you provide them mobile devices, or let them BYOD and connect them to your network, have a written policy that tells them they are not required to read or reply to emails after hours. Create a culture that lets your employees escape from work while not at work. You cannot prevent a wage and hour lawsuit raising these issues from being filed against you, but you can position yourself to present the best defense possible, and (hopefully) head off the defense of an expensive class or collective action.

Happy ADEA Day (to me). Now let’s rewrite the age discrimination laws.

I’m a white male, which means I’ve spent my entire life unprotected by the various civil rights laws to which I’ve devoted my career. Yes, I’m Jewish, but the legal profession isn’t known for its mistreatment of Jews. In other words, I’ve been exposed and unprotected for the first 40 years of my life.

All that changes today. Today, I turn 40. Today, I fall under the generous protections of the age discrimination laws.

The thing is, I don’t feel old; I feel young. I have young kids (6 and 4). I still watch cartoons and play video games. Alt Nation is my go-to channel on Sirius. My back only hurts some of the time.

Scientists say 40 is the new 30. If that’s the case, then why does the law protect 40 as age discrimination? If 40 is the new 30, then 50 is the new 40.

Today, to mark the ruby anniversary of my birth, I am starting a movement to change the protections of age discrimination laws from age 40 to age 50. If I can’t get cheap AARP hotel rooms for another 10 years, then I shouldn’t be able to claim age discrimination either. I am willing to give up my newly found protected status for an age cutoff that makes sense.

Now, I’m heading outside to yell at those kids to get off my lawn.

photo credit: Beautification Syndrome via photopin cc