WIRTW #273 (the “NLRB, fuggetaboutit” edition)

Remember those posters explaining employees’ rights under the National Labor Relations Act that the NLRB wanted all employers (union and non-union) to post. Well, earlier this week, the D.C. Circuit Court of Appeals issued a broad ruling striking down the NLRB’s posting requiring as a violation both of the NLRA’s “free speech” provision and the 1st Amendment of the Constitution. Bravo D.C. Circuit. Here’s some of the commentary on this case from around the blawgosphere:

• Another Bad Day in the DC Circuit for the NLRB — from Jottings By An Employer's Lawyer
• Breaking: No NLRB Union Posters, Says Appeals Court — from Dan Schwartz’s Connecticut Employment Law Blog
• D.C. Circuit Strikes Down NLRB Notice Rule — from Workplace Prof Blog
• DC Circuit Strikes Down NLRB Poster Requirement — from Phil Miles’s Lawffice Space

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

Discrimination

• EEOC Announces Enforcement Priorities — from Maryland Employment Law Developments
• Is your company a target of the EEOC? — from Employment and Labor Insider
• Sexual Harassment Complaints By Males On The Rise: 2012 EEOC Enforcement and Litigation Statistics — from Outten & Golden Employment Law Blog
• Knock knock. Who’s there? The EEOC… — from Warren & Associates Blog
• 10 Reasons To Negotiate Instead Of Suing The Bastards  — from Negotiation Law Blog
• Should Employees Sign A Waiver To Protect Employers: “I Agree Not To Engage In Wild Sex On A Business Trip?” — from Employment Discrimination Report
• When an Employee Says: I’m Gay — from HR Examiner with John Sumser
• Sexual Orientation – Is Conduct Discrimination or Stereotyping? — from HR Gazette
• Pregnancy Disability Discrimination a KEY Target of EEOC — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Rewriting the Employee Handbook for Social Media — from InhouseBlog
• Protecting Privacy or Enabling Fraud? Employee Social Media Password Protection Laws May Clash with FINRA Rules — from Privacy Law Blog
• Should Employers Ask Candidates for Their Facebook Passwords? — from employeescreenIQ Blog
• History of Terminations & Firings Because of Employee Social Media — from Blogging4Jobs
• Patchwork of Social Media Password Protections Laws Impacts Employers — from Digital Workplace Blog

HR & Employee Relations

• Employee Handbook Haiku — from Minnesota Employer
• Doctor Non-Solicitation Agreement Not Supported By Legitimate Business Interest — from Trade Secrets and Noncompete Blog
• Bullying in the Workplace: All Eyes on NBC — from Minnesota Labor & Employment Law Blog
• Beyond Words: How Generation Y is Redefining Learning For Everyone — from TLNT
• Is Your Company’s Customer List Still A Trade Secret If Your Company Uses Labeled Delivery Trucks? — from Trading Secrets
• Shocking examples of sexism in 1960s corporate newsletters — from Ragan.com
• Why You Shouldn’t Try to Match Yahoo’s Fabulous New Maternity Leave Policy — from Evil HR Lady, Suzanne Lucas
• The don of donut discipline — from PassiveAggressiveNotes.com
• Paid Sick Leave Has Some Business Owners Feeling Ill — from You’re the Boss Blog

Wage & Hour

• Wage Hour Lawsuits Continue to Skyrocket — from The Wage and Hour Litigation Blog
• California Federal Court Relies on Comcast to Deny Class Certification of Off-The-Clock and Meal Period Claims — from Wage & Hour Counsel
• DOL Audits Will Rise With New Funding Increases — from Wage & Hour - Development & Highlights

Labor Relations

• Fact or Fiction: It’s ok to fire an employee for pro-union Facebook posts to NON-employees — from Eric Meyer’s The Employer Handbook Blog
• The Union Is Knocking at My Door: What Can I Say? — from Labor & Employment Law Perspectives
• NLRB Continues to Get in Your Facebook — from Trade Secret / Noncompete Blog
• Being Tricked into Firing an Employee is Not a Defense – More From the NLRB on Facebook Firings — from netWORKed Lawyers
• NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act — from Management Memo

Debunking myths of a pro-business Supreme Court

Conventional wisdom says that the current iteration of the United States Supreme Court is pro-business. In support of this position, Adam Liptak penned an article in Sunday’s New York Times, arguing that the Court led by Chief Justice John Roberts is the most business-friendly since World War II. A recent study published in the Minnesota Law Review [pdf] by Judge Richard Posner of the 7th Circuit Court of Appeals, University of Chicago economist William Landes, and University of Southern California law professor Lee Epstein (h/t ABA Journal) makes the same argument, albeit in painstaking law-review detail.

In employment cases, however, the realities of the court’s rulings have often bucked this conventional wisdom. Repeatedly, this Court had sided with the employee in cases deciding substantive individual rights under the various federal anti-discrimination statutes:

• Crawford v. Metropolitan Gov’t of Nashville — Retaliation for participating in internal discrimination or harassment investigations
• Staub v. Proctor Hospital — The cat’s paw: holding employers liable for the discriminatory animus of non-decision-makers
• Kasten v. Saint-Gobain Performance Plastics Corp. — Protecting oral wage and hour complaints under the FLSA’s anti-retaliation provision
• Thompson v. North American Stainless — Protecting oral wage and hour complaints under the FLSA’s anti-retaliation provision
• Hosanna-Tabor Evangelical Lutheran Church and School — Allowing non-ministerial employees to sue religious organizations for discrimination

Mr. Liptak recognizes, “Employees suing over retaliation for raising discrimination claims have fared quite well, for example.” Yet, much of the rest of his nearly 3,000-word opus takes the Court to task for its pro-business leanings.

The most insightful comment in the entire Times article is courtesy of Case Western Reserve School of Law Professor Jonathan Adler, who notes that the distinction is not one between business and the individual, but instead between enforcing established rights versus creating new ones. Per Professor Adler, the Roberts Court has not been “particularly welcoming to efforts by plaintiffs’ lawyers to open new avenues of litigation, but it has not done much to cut back on those avenues already established by prior cases.”

Professor Adler is correct. Those who take too great of a license to brand this Court as pro-business are ignoring the Court’s protections of key individual liberties in employment decisions. In procedural matters, this Court has, time and again, sided with the employer (Genesis Healthcare: offers of judgment mooting wage and hour collective actions; Comcast v. Behrend: the scope of class actions for claims seeking individualized damages; AT&T Mobility v. Concepcion: the enforceability of arbitration agreements). These are procedural cases. In cases deciding the application of already established rights, such as the right to be free from retaliation by one’s employer, the Court, over and over, sides with the employee.

There are still two key employment cases pending this term—Vance v. Ball St. Univ., which will decide the meaning of “supervisor” under Title VII, and University of Texas Southwestern Medical Center v. Nassar, which will decide the proper causation standard for retaliation claims under Title VII. These two rulings will help determine this Court’s developing legacy as either pro-individual or pro-business in deciding employment cases.

You’d think we’d all know the dangers of “reply all” by now

Is there any more helpless feeling in today’s business world than sending an email, and then immediately realizing that you made a mistake? The biggest cause of an emailer’s stomach sinking through the floor—”reply all.” We’ve all had it happen. This story from the Toronto Star explains how a reply-all mistake brought one company an expensive wrongful discharge lawsuit:

Maria Fernandes … accidentally received an email discussing whether or not she should be fired.

Court documents allege that Linda Guerin, the company’s Director of Operations intended to send the email to the company’s lawyers. Too late she realized Fernandes was also on the list and she unsuccessfully sent three recall notices. She also sent an email to Fernandes asking that she delete the message without opening it.

Fernandes read it, treated the information in the email as a constructive dismissal and hired a lawyer. She had worked for the company for over six years and was earning $145,000 a year.

This case is a great reminder that a mis-addressed email can cost employers dearly in a wrongful discharge lawsuit. Other reply-all risks include the disclosure of trade secrets and other confidential information.

How do you protect against this problem affecting your business? The Toronto Sun article discusses some add-ons for Outlook that will either remove the “reply all” button or require an extra confirming step to use it.

Technology, however, will only mask the symptoms. It will not cure your workplace of this problem. To really attack the problem, you need to educate and train your employees.

• Do you train your employees on proper email etiquette, including when to use (and, more importantly, not use) “reply all?”
• Do you teach your employees to proofread entire emails carefully before they click “send,” including double-checking the “to,” “cc” and “bcc” boxes?

Taking issue with the term “wage theft”

Lately, I’ve read a lot of blogs that accuse employers of committing rampant wage theft (e.g., here, here, and here).

I have a huge problem with the term “wage theft.” It suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not.

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better.

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win.

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft statutes that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation.

In my most recent book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law, I summarized this issue best:

Congress enacted the FLSA during the great depression to combat the sweatshops that had taken over our manufacturing sector. In the 70 plus years that have passed, it has evolved via a complex web of regulations and interpretations into an anachronistic maze of rules with which even the best-intentioned employer cannot hope to comply. I would bet any employer in this country a free wage-and-hour audit that i could find an FLSA violation in its pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive….

I am all in favor of employees receiving a full day’s pay for a full day’s work. What employers and employees need, though, is a streamlined and modernized system to ensure that workers are paid a fair wage.

Big verdicts might grab headlines, but it’s the final judgment that counts

I never thought I’d read about a case in which I could say to myself, “A $240 million jury verdict doesn’t seem all that out of whack.” Then I read about the EEOC’s recent $240 million jury verdict against Henry’s Turkey Service. The agency alleged that the farm subjected its 32 mentally disabled workers to decades of abuse:

The EEOC’s press release describes the horrible working conditions to which the turkey processing plant subjected these individuals:

Specifically, the EEOC presented evidence that for years and years the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.

Verbal abuses included frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  The Henry’s Turkey supervisors, also the workers’ purported caretakers, were often dismissive of complaints of injuries or pain.

Robert A. Canino, regional attorney of the EEOC’s Dallas District Office, which tried the case, … told the jury that Henry’s Turkey treated the men “like property.” … Canino urged the jury to think of the “broken lives of 32 hard-working but vulnerable intellectually disabled men” who were employees of Henry’s Turkey.

For more background on the Henry’s Turkey labor camps that this case helped bring to an end, I recommend this story from the Des Moines Register, which includes a timeline summarizing the camps’ 40-year history. In this context, the $7.5 million awarded to each of the 32 disabled employees ($5.5 million in compensatory damages, on top of another $2 million in punitive damages) begins to look more reasonable.

While the $240 million verdict is historically large (he biggest ever obtained by the EEOC), ultimately it will only serve as a symbol of the cruelty these 32 men endured. As the Des Moines Register articles points out, Henry’s Turkey’s assets cover less than two percent of the total verdict. Additionally, the Civil Rights Act of 1991 caps these non-economic damages, depending on the size of the employer:

• For employers with 15 – 100 employees, damages are capped at $50,000.
• For employers with 101 – 200 employees, damages are capped at $100,000.
• For employers with 201 –  500 employees, damages are capped at $200,000.
• For employers with more than employees, damages are capped at $300,000.

Thus, Henry’s Turkey maximum exposure for non-economic damages is $9.6 million.

Perhaps the lesson that employers should take away from this horrible story is that a verdict is only the first step in a plaintiff attempting to remedy a wrong. A verdict is simply the jury’s unfiltered opinion about what those eight people think the case is worth. That opinion, however, is not the final say; it is still subject to the law. A judge can lower the amount because of damage caps or for some other reason. A judge can take away the entire verdict by entering judgment notwithstanding the verdict for the defendant, or by ordering a new trial. A court of appeals can find some error in the case and reverse the judgment. Moreover, even if some or all of the verdict survives to a final judgment on which a plaintiff can execute, the plaintiff still has to be able to collect. A multi-million judgment against an insolvent defendant is not worth more than the paper on which it is printed.

We put so much effort into, and place so much emphasis on, the jury verdict that we can lose sight that often it is merely the end of the first act of a much longer play. The verdict might grab headlines, but for a defendant, the war is not over until the final judgment is entered.

WIRTW #272 (the “sensual harassment” edition)

We’ve all heard of sexual harassment. But, have you heard of “sensual harassment?”

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

Discrimination

• No, I am not from the Midwest. Sex Discrimination Lives On — from Molly DiBianca’s Delaware Employment Law Blog
• Third Circuit says VIPs cannot sue for Title VII discrimination — from Eric Meyer’s The Employer Handbook Blog
• Initial Discovery Protocols in Discrimination Cases: A Connecticut Update — from Dan Schwartz’s Connecticut Employment Law Blog
• First Circuit Rejects Age Discrimination Claim Based on Isolated Comment — from Employer’s Law Blog
• Sexual Harassment Complaints By Males On The Rise: 2012 EEOC Enforcement and Litigation Statistics — from Outten & Golden Employment Law Blog
• Ostracism and petty mistreatments may collectively rise to the level of hostile work environment — from Employment Law Matters
• Bills Would Extend Workplace Protections to LGBT Employees — from Washington D.C. Employment Law Update
• What It Takes To Win An Age Discrimination Suit — from Forbes

Social Media & Workplace Technology

• New Jersey Federal Court Issues Sanctions For Deletion of Facebook Profile — from Trading Secrets
• FireMe! App rescues tweeting employees from own indiscretions? — from Employment Law Worldview
• Time for those six second “selfies” with latest Vine update — from TiPb
• Twitter: A Sleeping Discovery Giant? — from Law.com
• The Mayo Clinic and Healthcare Social Media — from SocialFish
• The “Employee Tricked Me Into Firing Her” Defense — from Social Media Employment Law Blog
• NLRB Issues Facebook Firing Decision — from Phil Miles’s Lawffice Space
• “Catfishing” Gets Its First Legal Mention — from The Not-So Private Parts
• If a Tweet falls in the forest — from iFractal

HR & Employee Relations

• Workplace Violence, Part 2: Crisis management tips for employers — from Robin Shea’s Employment & Labor Insider
• When Uncle Sam calls your employees, what do you do – and not do? — from HR Cafe
• Alcohol Testing in the Workplace: An Employer’s Dilemma — from i-Sight Investigation Software Blog
• An Observation on Work-Life Balance — from Blogging4Jobs
• Paid Sick Leave Has Some Business Owners Feeling Ill — from You’re the Boss Blog
• The don of donut discipline — from PassiveAggressiveNotes.com

Wage & Hour

• DOL Audits Will Rise With New Funding Increases — from Wage & Hour - Development & Highlights
• Eighth Circuit Holds Plaintiffs Must Provide Evidence of Actual Damages Even when Employer Doesn't Keep Accurate Time Records — from Wage & Hour Counsel
• “Comp Time” Proposal: Be Careful What You Wish For — from Wage and Hour Laws Blog
• The Unpaid Internship Dilemma: Everyone Loses in This Crackdown — from TLNT

There’s no such thing as a free lunch

Your accounting records might soon look a little different—that is, if you provide perks at work such as free meals and if the IRS gets its way.

According to the Internal Revenue Code, certain employer-provided meals are exempt from the definition of “gross income” and, therefore, not taxed. To be considered non-taxed, an employer must provide a meal on its premises and for its convenience. Examples that might qualify:

• Employees working at remote sites (e.g., oil rigs).
• Emergency workers who have to be on-call.
• Employees whose peak work coincides with the lunch hour (e.g., bank tellers).

Silicon Valley’s tech companies are famous for the perks they offer to lure the best and brightest employees. One such perk—elaborately gourmet free meals (how does Facebook’s spicy she-crab soup and grilled steak with chimichurri sauce sound?). Never one to leave money on the table, the IRS is reportedly examining the taxability of these meals.

From the Huffington Post:

The free meals that tech companies like Facebook, Google, and Yahoo provide their employees should actually be taxed. But what does that really mean? Who should be paying for these meals and where is the line drawn? According to Martin J. McMahon, Jr., professor of tax law at the University of Florida, companies like Facebook and Google report these meals as tax-free fringe benefits, when they should be considered taxable fringe benefits. The cost of these meals, McMahon explains, should be considered a part of the employee’s salary. “Let’s say that an employee gets $2,000 in free meals and makes $50,000 a year. The company should report to the IRS that it paid the employee $52,000 in compensation on which the employee would be taxed,” McMahon says….As Professor McMahon explained … : “A company cannot provide tax-free meals if workers commute from home and have the ability to bring their lunches with them.”

I’m not a tax attorney. I don’t want to be a tax attorney. This might be the only tax-based post I will ever write. Here’s what to take away from this story. If you provide free food to your employees, however, you might soon need to start accounting for that food as a taxable benefit instead of tax-free benefit.

This post originally appeared on The Legal Workplace Blog.

[photo credit: Rich Anderson via photopincc]