WIRTW #274 (the “Dunder Mifflin” edition)

Last night brought us the final episode of what may be the greatest ever satire of the American workplace—The Office. Seinfeld, that is how you do a series finale.

In its honor, I bring you one of my favorite clips from my favorite episodes from show’s nine-year run, Diversity Day. If this doesn’t make your employment law skin crawl, nothing will:

 

Here are 59 other reasons we’re going to miss The Office.

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

Discrimination

• Want to cut the line at the Disney park? Call my disabled friend — from Walter Olson’s Overlawyered
• “Bashful Bladder” As A Disability? Running Water The Accommodation? — from Employment Discrimination Report
• Horniest boss ever? His employee still can’t prove sexual harassment — from The Employer Handbook Blog
• Angelina Jolie and Employment Law — from Phil Miles’s Lawffice Space
• Bad Credit Could Cost You a Job — from Nolo’s Employment Law Blog
• EEOC Brings, Settles First Ever GINA Lawsuit — from Employer’s Law Blog 
• “My Prior Complaint Was One of the Reasons for the Adverse Employment Action”: Mixed Motive Theories for Retaliation Claims Under Title VII — from HR Defense Blog

Social Media & Workplace Technology

• Social Media By the Numbers — from Social Media Strategies Summit Blog
• How Can You Avoid Lawsuits While Using Social Media to Screen Applicants? 10 Steps to Consider — from The Emplawyerologist
• Social media and nonsolicitation agreements — from Technology for HR

HR & Employee Relations

• Asking to telework when you have your period — from Ask a Manager
• Should these employees have been terminated? Tell us what you think! — from Robin Shea’s Employment & Labor Insider
• Try Acting More Like a Kindergartner — from Evil HR Lady writing at Inc.com
• Dear Evil Skippy: Can I Refuse To Hire Someone With Tattoos? — from Evil Skippy at Work
• Hipster Bias > Another HR Hurdle? — from Fistful of Talent
• Fired For Voicing My Concerns — from Work Place Coach Blog News
• Using Standard Form Employee Handbooks; Damned if You Do, Damned if You Don’t — from damnedif
• Here’s Why Bullies Are Taking Over Your Organization — from TLNT

Wage & Hour

• To Be Or Not To Be An Independent Contractor — from San Antonio Employment Law Blog
• Congressional Roundup: Republican Comp Time Bill Gets a Vote — from Bloomberg BNA
• “They Owe You” Does Not Always Mean You Can Withhold — from Trade Secret / Noncompete Blog
• FLSA Compliance: Dispelling the Great Myths — from HR Daily Advisor
• Employers Play Whack-A-Mole with Internship Lawsuits — from The Wage and Hour Litigation Blog
• Is Time Spent Traveling to Trainings Outside of Normal Working Time — from Smart HR Manager

Labor Relations

• “The N.L.R.B.’s Contested Poster” — from How Appealing
• Senate Republicans Call for Hearing on NLRB's Budget Request — from Wisconsin Employment & Labor Law Blog

Patriots cutting of diabetic player raises serious ADA issues

The New England Patriots recently cut defensive tackle Kyle Love. This news is not worthy of consideration on an employment law blog until I tell you the reason the Pats cut him. According to FoxNews, the Pats cut him two weeks after his diagnosis with Type 2 diabetes out of a concern over his “recovery time.”

If I’m Kyle Love’s agent, I’m finding him the best employment lawyer possible to argue that the Patriots cut him because of his diabetes, a protected disability.

Yesterday, the EEOC conveniently published guidance on the employment rights of people with specific disabilities. One of the specific disabilities for which the EEOC published new guidance is diabetes.

According to the EEOC, there is little doubt that diabetes is a disability protected and covered by the ADA:

As a result of changes made by the ADAAA, individuals who have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function. Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin, medication, or diet controls a person’s blood glucose levels. An individual with a past history of diabetes (for example, gestational diabetes) also has a disability within the meaning of the ADA. Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of diabetes or because the employer believes the individual has diabetes.

Given the timing of the Patriots’s decision, coupled both with its apparent failure to offer any kind of accommodation for Kyle Love’s disability, and the stated reason for its decision, Kyle Love appears to have a strong disability discrimination case. Had the Patriots called me, I would have counseled against cutting him, at least at this time and in this manner.

Consider Kyle Love’s problem in light of this hypothetical, provided by the EEOC in its diabetes guidance:

When an actor forgets his lines and stumbles during several recent play rehearsals, he explains that the fluctuating rehearsal times are interfering with when he eats and takes his insulin. Because there is no reason to believe that the actor poses a direct threat, the director cannot terminate the actor or replace him with an understudy; rather, the director should consider whether rehearsals can be held at a set time and/or whether the actor can take a break when needed to eat, monitor his glucose, or administer his insulin.

It is an understatement to characterize this termination—undertaken without any apparent consideration of whether the team could accommodate the diabetes—as high risk.

Jeffrey Nye made me aware of this story on Twitter last night, and asked, “The Patriots cut Kyle Love because he has diabetes. How can they do that?”

They can’t (or at least shouldn’t be able to in the manner in which they did it). It would not surprise me in the least if, given the high profile nature of this employment decision, the EEOC takes up Kyle Love’s cause to further its mission of disability-rights awareness.

Employee vs. independent contractor: do you know the difference

Employers take a risk when they classify someone performing services for them as an independent contractor instead of an employee. Because employers owe contractors far fewer obligations than employees, employers risk each of the following if a court determines that a mis-classification occurred:

• Unpaid overtime.
• Unpaid taxes.
• Un-provided benefits.
• A discrimination claim, or claims under other laws that protect employees but not contractors (i.e., the FMLA).

Do you know, however, how to spot the difference? Troyer v. T.John.E. Productions, Inc. [pdf], decided yesterday by the 6th Circuit, provides some insight.

The issue in the case was whether the company failed to pay overtime to three individuals who performed road crew services (setting up and breaking down displays) at the company’s collegiate and corporate events. The court determined that the company had mis-classified them, and owed them unpaid overtime as employees:

Plaintiffs testified that their working relationship with Defendants was relatively permanent, they worked hundreds of hours of uncompensated overtime over several months, and that Defendants exercised strict control over their schedule and day-to-day activities while out on the road. Defendants countered that Plaintiffs worked on a job-by-job, independent contractor basis, that the Plaintiffs had a great amount of autonomy regarding how they completed their work.

In determining whether an worker is an employee or an independent contractor, the IRS looks compares the degree of control exerted by the company to the degree of independence retained by the individual. Generally, the IRS examines this relationship in three ways:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

If you are considering classifying someone performing services for you as an independent contractor, your answers to these three questions will determine whether that individual is a bona fide contractor, or instead, is a employee. When in doubt, err on the side of caution. The government applies these tests aggressively to find employee-status whenever it can. You should too, and the risks are too high to make a mistake.

How much does it cost to defend an employment lawsuit?

Last Friday I had the pleasure of appearing on Huffington Post Live, in a segment entitled, “You’re Fired! No really.” We discussed the current state of employment at-will, and whether American workers need greater protections from being terminated without just cause.If you’ve read my blog for any length of time, you know what I have some pretty strong feelings on this topic. Heck, I’ve even written an entire book on this issue of employer rights.

If you missed the show, you can watch it here, or in the imbedded video below:

Following my appearance, Texas plaintiff-side employment lawyer Chris McKinney tweeted that he was surprised at my statement that it could cost a company $250,000 to defend an employment lawsuit:

Chris was responding to my comment that the myriad laws that already protect employees from arbitrary or capricious terminations (Title VII, ADA, ADEA, FMLA, etc.), coupled with the threat of defending an expensive lawsuit, serve as enough of a deterrent to most reasonable employers from firing an employee without a good reason.

The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment (which, much more often than not, is the case), the employer can expect to spend a total of $175,000 to $250,000 to take a case to a jury verdict at trial.

Most employers, if acting rationally, will chose to retain an employee instead of assuming the risk of a $250,000 legal bill with an uncertain outcome. Moreover, employers cannot avoid this risk simply by settling every claim that is filed, lest the company risk the perception of being an easy mark by every ex-employee.

If you must terminate an employee, however, the safest, most prudent course of action is to offer a severance package—but only in exchange for a waiver and release of claims, and covenant not to sue—for all terminated employees except those terminated for some egregious or intentional misconduct. By offering severance in exchange for a release, you are capping your exposure and buying off the risk of a costly, time consuming, and burdensome lawsuit.

Cruise-ing for a lawsuit: EEOC sues company for forced practice of Scientology

The EEOC has filed against a Miami, Florida, medical service provider, alleging that it has violated Title VII’s religious discrimination provisions by forcing its employees to practice Scientology. According to the agency’s lawsuit, Dynamic Medical Services required its employees, as a condition of their employment, to spend at least half their work days attending Scientology courses.

The EEOC’s complaint [pdf] details the bizarre job requirements, which included:

• Screaming at ashtrays.
• Staring at someone for eight hours without moving.
• Undergoing a “purification audit” by connecting to a Scientology religious artifact known as an “E-meter.”

Employees who refused to participate in the Scientology religious practices, or conform to Scientology religious beliefs, were terminated.

If any of the EEOC’s allegations in the lawsuit are true, the agency is going to have an easy time winning this case, which serves a good reminder that an employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs.

Hat tip: Lowering the Bar

photo credit: Rob Sheridan via photopin cc

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.