Congress enacts the Americans with No Abilities Act

According to a trusted news source, Congress has enacted the Americans with No Abilities Act:

The act … is being hailed as a major victory for the millions upon millions of U.S. citizens who lack any real skills or uses.

The ANAA will:

• Prevent discrimination again the non-abled.
• Provide corporations with tax incentives to hire non-abled workers.
• Create more than 25 million important-sounding “middle man” positions in the white-collar sector for non-abled persons.

Employers best ready their businesses and HR practices for this important piece of legislation.

(Happy April Fools’ Day)

WIRTW #267 (the “may the font be with you” edition)

I’m a font geek. When I read a brief that has been drafted in Times New Roman, I get mad. It’s lazy, I think, to use a font just because you can’t figure out how to hit Ctrl-D, pick one more pleasing to the eye, and then click the “Set As Default” button.

Typography for Lawyers agrees with me:

When Times New Roman appears in a book, doc­u­ment, or adver­tise­ment, it con­notes apa­thy. It says, “I sub­mit­ted to the font of least resis­tance.” Times New Roman is not a font choice so much as the absence of a font choice, like the black­ness of deep space is not a color. To look at Times New Roman is to gaze into the void.

For the record, any document you receive under my signature will have been written in Constantia.

In which font do you draft, or are you a lazy Times New Roman writer? Leave a comment below, or tweet your answer using the hashtag #LawyerFont

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

Discrimination

• Sex(y?) Discrimination in Vegas — from Workplace Prof Blog
• Handling Complaints of Harassment Made Against Non-Employees — from Labor & Employment Law Perspectives
• Can A Corporation Sue For Hostile Work Environment, Or What Is A “Making-The-Owners-Miserable” — from Employment Discrimination Report
• The one thing an employer can do to prevent pay equity claims that’s easy, cheap, and doesn’t involve lawyers — from Employment and Labor Insider
• Sexual orientation discrimination: be ahead of the curve — from Sindy Warren
• Mandatory Employee Medical Exams — from Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Donglegate: HR Gone Wild — from Blogging4Jobs
• Survey Says: Are Facebook Profiles Fair Game for Employers? — from EmployeeScreenIQ Blog
• Social media and nonsolicitation agreements — from Work Matters
• Do You Have A Social Media Will? — from The Mac Lawyer
• Social Media’s Real Legal Issues — from HR Examiner
• BYOD: What’s Your Policy? — from Attorney at Work
• Who Owns Your Online Persona? Re: Social Media and Employment Litigation — from The National Law Review

HR & Employee Relations

• Non-competes: HR’s version of the Prenup — from Steve Boese at Fistful of Talent
• How to Conduct a Termination Meeting that Won’t Invite a Lawsuit — from i-Sight
• Your Employees Are Stealing Your Data — from Molly DiBianca’s Delaware Employment Law Blog
• Why I Don’t Fire the Jerks — from Evil HR Lady, Suzanne Lucas
• The Importance of Documentation in HR — from Mike Haberman’s Omega HR Solutions
• Lies Your Employer Tells You — from Donna Ballman’s Screw You Guys, I’m Going Home
• You’ll Get Sued Over the Office March Madness Pool? — from New Jersey Employment Law Blog

Wage & Hour

• Key Wage-and-hour Language to Have in Your Employee Handbook — from SmartHR
• The Beginning of the End for Wage & Hour Class Actions Through Arbitration Agreements? — from Dan Schwartz’s Connecticut Employment Law Blog
• Actual Duties Define Exempt Status of Managerial Retail Employees and Precludes Class Certification — from Wage & Hour Defense Blog
• Worker Misclassification: A Tough Issue, and Getting Tougher Every Day — from Workplace Insights
• Did The Earth Just Move? Comcast Suggests Individual Damage Calculations Prevent Class Certification — from The Wage and Hour Litigation Blog
• Feeling “maybe overworked” is not an FMLA “serious health condition” — from Eric Meyer’s The Employer Handbook Blog
• FMLA FAQ: How Long Can an Employer Rely on a Second or Third Opinion under the FMLA? — from Jeff Nowak’s FMLA Insights
• Employee on FMLA leave fired for “moonlighting” — from EmployerLINC

A cautionary tale on what happens when you botch a litigation hold

All the way back in October 2010, I provided 10 tips for issuing an effective litigation hold. What happens, however, if your litigation hold is not effective, or, worse yet, not issued in the first place? EEOC v. JP Morgan Chase Bank (S.D. Ohio 2/28/13) should be required reading for any company on the serious consequences that can occur from a botched litigation hold.

In this Title VII litigation, the EEOC claimed that the bank removed female employees from a mortgage call center queue and instead directed the more lucrative calls to male employees. In support of this claim, the EEOC sought the production of certain records that would show which calls an employee should have received based on their level of skill. According to the EEOC, a statistical analysis of that data would show sex discrimination. When the bank refused to produce the records, the EEOC filed a motion to compel, which the court granted for a limited period. The bank, however, could not produce certain of the records, as it had already destroyed them as the result of its routine purging of electronic records.

The court concluded that the bank’s admitted destruction of evidence was inexcusable:

Plaintiff provided Defendant with notice on numerous occasions of the need to retain the destroyed data…; these notices came immediately prior to the destruction of relevant data from the three years prior. This data likely would inform Plaintiff’s claims and Defendant’s defense….

Defendant’s failure to establish a litigation hold is inexcusable. The multiple notices that should have triggered a hold and Defendant's dubious failure if not outright refusal to recognize or accept the scope of this litigation and that the relevant data reaches beyond the statutory period present exceptional circumstances….

Defendant’s destruction of evidence under the auspices of routine purging has hampered the ease of if not the ability to uncover exactly what if anything impermissible has transpired here.

As a sanction, the court denied the bank’s motion for summary judgment and provided the EEOC with an instruction that the jury could draw an inference adverse against the bank based on its document destruction.

The importance of this lesson cannot be overstated. As soon as you reasonably anticipate litigation, you have an absolute duty to implement a written litigation hold that both instructs employees to preserve paper and electronic records relevant to the case, and suspends any automated processes that otherwise might result in the destruction of such records. If your lawyer is not having this conversation with you, it’s time to find a new lawyer. As JP Morgan Chase illustrates, the penalties for non-compliance can devastate your case.

More on retaliation for firing after complaints of third-party discrimination

Yesterday’s post on #Donglegate — the firing of Adria Richards after she tweeted her displeasure at the off-color jokes told by a pair of fellow attendees at an industry conference — created quite the debate.

On Twitter, Chris McKinney argued that I confused the questions:

Meanwhile, blog reader Kent Mannis commented that the employer should be liable because Richards was “opposing” unlawful harassment:

Richard’s employer isn’t potentially liable for what the conference attendees did, but it may be liable for what it did (e.g., retaliate against her for her complaint)…. So, does she lose protection for using social shaming as a way of opposing another harassing drip? We want employees to try (if they can) to say “stop that” to their harassers before suing; we want them to stand up for themselves. Isn’t that what Richards did? Wasn’t she protected for “opposing”?

Despite the criticism, I do not believe that my opinion that Ms. Richards’s termination is lawful is off-base. For Title VII to protect her complaints as opposition conduct, she must have a reasonable belief that she is complaining about something unlawful. Yet, Title VII does not protect an employee from a hostile work environment created by a non-employee unless the employer can exert some reasonable degree of control over the non-employee. If Ms. Richards’s employer cannot control the people about whom she was complaining, why should Title VII protect the complaints at all?

Additionally, recall that “venting” does not qualify as “opposition” under Title VII. There is a good argument to be made that Ms. Richards was not complaining about harassment or discrimination, but merely blowing off steam about the boorish behavior of some follow conference goers.

Moreover, even if Title VII protects Ms. Richards’s online venting as “opposition,” it is doubtful she will be able to establish a nexus between her comments and the termination. Her employer did not terminate her because of the contents of her tweet, but because of the very public nature of her complaints. Had she raised the issue privately with her employer, it is fair to assume that she’s still be employed and we would not be having this healthy debate.

What do you think about Ms. Richards’s termination? Eric Meyer wants you to answer a short, one-question poll and let him know whether you think her firing was fair. I can’t wait to read the results.

Should employers be liable for conduct they cannot control? Fired for tweeting about third-party misconduct

While attending a conference, Adria Richards became offended by two attendees sitting behind telling inappropriate jokes. So, she tweeted her grievance. Then, she blogged about it. Then, her employer fired her. Ars technica has the full details.

If the people about whom Ms. Richards complained were co-workers, or they made the offensive comments while in her place of employment, she would have an easy retaliation claim. The perpetrators, however, did not work with Ms. Richards, and the only relation between the alleged misconduct and her employment is the coincidence that she had the experience at a conference she was attending on her employer’s dime.

The question, then, is whether Ms. Richards can claim retaliation based on complaints about which her employer was powerless to remedy?

At his Employer Handbook Blog, Eric Meyer argues that Ms. Richards’s complaints are protected by Title VII:

If a conference attendee engaged in behavior that amounts to discrimination or sexual harassment, then Ms. Richards’s social media complaints could amount to protected activity.

Remember also that even if the law does not technically recognize the actions of which Ms. Richards complained as unlawful discrimination, to engage in “protected activity,” she need only have a reasonable belief that what she experienced was unlawful.

I disagree. For Ms. Richards to have a reasonable belief that she experienced unlawful discrimination or harassment, her employer needs to be able to do something about the alleged discrimination or harassment. What could Richard’s employer have done? It couldn’t conduct an investigation. It couldn’t discipline the alleged perpetrators. All it could do is alert the conference of the issue and suggest that Ms. Richards distance herself from the situation.

Ms. Richards did not complain about illegal discrimination. She complained about boorish behavior by two individuals completely outside of her employer’s sphere of control. I do not believe Ms. Richards’s complaints in these circumstances should be protected. To hold otherwise would hold employers accountable for the behavior of the entire world, whether or not the employer has the ability to influence the conduct or punish the misconduct. Title VII’s anti-retaliation provisions should not cast this wide of a net.

6th Circuit holds that an insurer’s “special investigators” are exempt administrative employees

One of the most difficult issues employers face under the wage and hour laws is properly classifying employees under the “administrative” exemption. Much of a difficulty comes from the FLSA’s use of the word “administrative.” Many employers confuse the exemption with the performance of administrative tasks.

The mere performance of administrative tasks, however, will not qualify an employee for this exemption. Instead, the exemption only covers salaried employees whose primary duties (1) are the performance of office or non-manual work directly related to the management or general business operations of the employer or its customers, and (2) include the exercise of discretion and independent judgment on matters of significance.

Last week, the 6th Circuit opined on the application of this exemption to an insurance company’s “special investigators” (SIs). In Foster v. Nationwide Mutual Ins. Co. (6th Cir. 3/21/13) [pdf], the court concluded that Nationwide properly classified this group as exempt administrative employee.

Nationwide’s SI investigate claims that the company’s adjusters flag as presenting certain indicators of fraud. The SIs are generally experienced investigators with prior background in law enforcement or insurance claims. The SIs work with the claims adjusters to develop a plan for the investigation, which the SIs then conduct free from any supervision. They spend most of their time investigating suspicious claims, but are not allowed to adjust claims or make any decisions on whether to pay or deny a claim.

The 6th Circuit concluded that these employees are fall under the administrative exemption:

1. The SIs’ investigative work is directly related to Nationwide’s business, as it “drives the claims adjusting decisions with respect to suspicious claims.”
2. The SIs use discretion and independent judgment on matters of significance, as they are not merely fact-gatherers, but are charged with applying those facts to resolve the indicators of fraud, and to determine whether to refer fraudulent claims to law enforcement.

The holding of this case is narrow. Unless you are an insurer or similar company employing similar Special Investigators, Foster likely will not impact your business.

This case, however, has a broader lesson to teach. FLSA exemptions are highly fact specific. Before classifying an employee, or group of employees, as exempt, you must engage in a careful analysis of all of the facts and circumstances of your business, their jobs, and how the latter impacts the former. It’s also a good idea to run your exemptions past an employment lawyer knowledgeable on these issues. Because courts give employees the benefit of any doubt with exemptions, you should not classify an employee an exempt unless it is a reasonably clear case. You may think you are saving a few pennies in overtime, but you will spend a whole lot more defending your decision in court if challenged.

WIRTW #266 (the “Reader is dead … long live Feedly” edition)

Today, I’m going to break down the 4th wall. To the outside observer, these weekly Friday roundups appear incredibly time consuming to compile. Often, I’m asked, “How do you track all of the links you post in your Friday wraps, and how long does it take you to write that post?”

The truth is that my “WIRTW” are the easiest posts I write all week. During the week, I use my RSS reader to save all of the blog posts that I find interesting from the blogs to which I subscribe. Then, it’s nothing more than cut, paste, and a little sorting to make the magic happen every Friday.

“What is RSS,” you ask? RSS stands for Really Simple Syndication. It is a web format used to publish frequently updated works—such as blog entries, news headlines, audio, and video. RSS feeds let publisher automatically syndicate content, typically through a feed reader. Users subscribe to a website’s RSS feed, and the site automatically pushes updates to the reader upon publication. In other words, instead of checking hundreds of websites each date, RSS lets me check one (my feed reader), which automatically updates every time a site to which I have subscribed publishes new content.

Up until this week, my RSS app of choice was Google Reader. Heck, I think it was the RSS app of choice of 99% of the blog-reading community. Then, tragedy struck. Google announced that it was closing Reader. My initial thought was how the heck am I going to keep writing “WIRTW” without my trusty Google Reader.

Then, I found Feedly. Feedly should be the go-to blog reading app for anyone who used Google Reader. Since Google announced Reader’s closure, 500,000 users (including me) have flocked to Feedly. Feedly was even so nice as to post an 8-step guide to migrating from Reader.

So, if you receive updated to my blog via RSS, I suggest you jump over to Feedly, import your Google Reader account through its automated process, and keep on reading as if nothing’s changed.

If you are new to the RSS game, give it a try. It will likely revolutionize how you consume Internet content. Or, you can always subscribe the old-fashioned way, via my daily email newsletter.

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

Discrimination

• Can We Be a Christian Company? — from Current Employment
• Man fired over zero-tolerance sexual harassment policy loses appeal — from West Virginia Record
• Dear Evil Skippy: Is It Harassment To Post Pictures Of The New Pope? — from Evil Skippy at Work
• Is rejecting a sexual advance, without reporting it, protected activity? — from The Employer Handbook Blog
• When Bad Things Happen to Good Employers: An Equal Employment Opportunity — from HR Defense Blog
• Can Body Odor Fall Under Religious Protection? — from Evil HR Lady
• Is the EEOC Really Out to Force Employers to Hire Applicants with Criminal Histories? — from The Emplawyerologist
• Survey Says: Criminal Records Aren’t Automatic Disqualifiers for Employers — from EmployeeScreenIQ Blog

Social Media & Workplace Technology

• Don’t Ignore The Risks Of BYOD Programs — from Employment Law Watch
• Court: Hijacking ex-employee’s LinkedIn account violates PA law — from Ars Technica
• More Trouble With Work-Related Social Media Accounts — from Socially Aware Blog
• Ex-BP Engineer Accused Of Deleting Voicemails — from The Huffington Post

HR & Employee Relations

• Non-competes: HR’s version of the Prenup — from Fistful of Talent
• Office Pools in Connecticut: Jump In? Maybe — from Connecticut Employment Law Blog
• Mediating Non-Compete Disputes in the Medical Device Industry — from Non-Compete and Trade Secrets
• Electronic Cigarettes in the Workplace — from Minnesota Employer
• Employees: You Have The Right To Say No — from Screw You Guys, I’m Going Home
• Workplace Investigations: Assessing Witness Credibility from WinWinHR
• Firing for insubordination – the right way — from HR Cafe

Wage & Hour 

• Supreme Court Rejects Plaintiff’s Attempt to De-CAFA-nate Class Action Lawsuit — from The Wage and Hour Litigation Blog
• Court Rules That Third Party Administrators Can Be Held Liable for FMLA-Related — from FMLA Insights

Labor Relations

• Can’t Say You’re Coming in if You’re Going to Strike — from Labor & Employment Law Perspectives
• NLRB Lightens Grip on At-Will Language in Employer Handbooks? — from Labor Relations Institute