Happy 75th Birthday, FLSA

75 years ago yesterday, President Franklin D. Roosevelt signed the Fair Labor Standards Act. By establishing a minimum wage, setting an overtime premium for any hours worked in excess of 40 in any week, and creating child-labor protections, the FLSA is one of the most important pieces of employment legislation ever enacted.

In the 75 years since its passage, the FLSA has morphed into one of the most confounding statutes with which employers must comply.

To celebrate the FLSA’s Diamond Jubilee, please take a walk through 10 of my greatest wage-and-hour hits from the archives (in no particular order):

1. Taking issue with the term “wage theft”
2. We ♥ our phones, but should employees be paid for using them off-duty?
3. Are employers screwing up the FLSA’s lactation mandate? Probably not.
4. The 5 little words that will cause your company a huge headache
5. SCOTUS rules pharmaceutical reps are exempt outside salespeople
6. “Eat Shop Sleep” underscores the importance of proactively addressing wage and hour issues
7. “If I could press a button and instantly vaporize one sector of employment law?”
8. Paying overtime to salaried, non-exempt employees
9. Administrative employees vs. the administrative exemption
10. The ticking time bomb of overtime

 

 

Vance v. Ball St. narrows employer liability for harassment

In its prologue to yesterday Supreme Court opinion in Vance v. Ball. St. Univ. [pdf], Justice Alito, writing for the five-member majority, frames the importance of the issue facing the Court:

Under Title VII, an employer’s liability for such har­assment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employ­ment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the em­ployer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unrea­sonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Under this framework therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.

Ultimately, the Court held that to qualify as a supervisor for purposes of vicarious liability for harassment, one must be able to impart a “significant change in [the] employment status” of the plaintiff:

An employer may be vicariously liable for an employee’s unlawful harassment only when the em­ployer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “sig­nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits.”

Make no mistake, this is a huge victory for employers. Vicarious liability for unlawful harassment is a huge problem for employers. It means that that if the unlawful harassment occurred, the employer is liable, whether or not it knew about it, should have known about, or even took efforts to stop it from occurring. This case limits that vicarious liability only to those are in an actual position to affect the plaintiff’s terms and conditions of employment/

The majority made it clear that it was drawing this bright line to aid parties embroiled in harassment litigation:

The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervi­sor, and in others, the alleged harasser’s status will be­ come clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolv­ing the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.

In other words, the court’s bright-line rule is meant to weed out for resolution those cases in which vicarious liability exists. As Kevin Russell correctly pointed out at SCOTUSblog, these cases “will provide judges greater authority to prevent the case from getting to a jury in the first place.”

To ensure that employers avail themselves of the benefits of this decision as often as possible, it is best that businesses review organizational charts, chains of authority, and job descriptions. Businesses should spell out, in detail, those supervisors who have the authority to effect a “sig­nificant change in employment status.” They should also spell out which supervisors have the express authority to hire, fire, demote, or reassign which employees. Businesses should spell out which supervisors lack that authority. By establishing clear chains of authority, employers will place themselves in the best position to limit the risk of vicarious liability.

The importance of Vance as a win for employers cannot be understated. When you couple this decision with the Court’s retaliation decision in Nassar, it’s fair to say that yesterday, employers had their best day in recent memory at the Supreme Court.

BREAKING: SCOTUS decides on but-for causation standard for retaliation under Title VII

In a busy, end-of-term day at the Supreme Court, the Court has issued its decision in University of Tex. S.W. Med. Ctr. v. Nassar. In this 5-4, partisan-line decision, the Court decided that but-for causation is the appropriate standard for retaliation claims under Title VII.

Thus, going forward, an employee cannot succeed on a Title VII retaliation claim without proving that the employer would not have taken the adverse employment action but for an improper, retaliatory motive.

Needless to say, this is huge win for employers by narrowing an employee’s likelihood of proving retaliation. It eliminates mixed-motive retaliation. Retaliation must be the cause for an employee to prove retaliation.

Aside from its legal implications, this case is significant because it is the first retaliation case that this Court has decided in favor of the employer.

Perhaps the most curious part of the opinion, however, comes from Justice Ginsberg, who calls for passage of a “Civil Rights Restoration Act” in light of this opinion and the opinion in Vance. Given the political climate in Congress, I’d say this is unlikely. The drumbeats of employment-law reform, however, will begin to beat loudly from the left.

The Court’s opinion is available for download here.

BREAKING: SCOTUS issues decision in Vance v. Ball St. Univ.

Hot off the presses, the Supreme Court just issued its decision in Vance v. Ball St. Univ.

Via SCOTUS Blog, the Court held that “an employer is a supervisor for vicarious liability under Title VII only if she has the power given by the employer to take tangible employment actions against the victim.”

The opinion was 5-4, split down partisan lines.

You can download a pdf of the opinion here. The case background is here and here.

I’ll have analysis of the opinion later today.

Employee medical information and social media

Hopefully, you know that the ADA protects employee medical information as confidential. According to the EEOC:

The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.” Regardless, these examples potentially implicate the ADA’s confidentiality provisions.

What can a company do to guard against this type of ADA violation? Businesses should build confidentiality protections into their social media policies. Just as companies should be reminding employees that employee medical information is confidential and should only be disseminated on a need-to-know basis, so should they carry over those protections to their social media policies.

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. I can almost guarantee that a violation of the ADA’s confidentiality protections is the furthest from a manager’s or supervisor’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, some training—on this issue could save you a headache in a disability discrimination lawsuit down the road.

Title VII does not give employees the right to proselytize

I believe that everyone’s relationship with God (whether you call that deity Yahweh, Jesus, Allah, Vishnu, Buddha, or something else) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today’s discussion, which centers on Hall v. Tift County Hosp. (M.D. Ga. 6/10/13). In that case, the court rejected an employee’s religious discrimination case stemming from discipline for sending a Christian-themed email sent to a gay co-worker.

Pamela Hall, a Baptist, learned that one of the her co-workers, Amanda Dix, was a lesbian. Believing that she had a duty to save Dix from the “sin” of “homosexuality,” Hall placed a pamphlet, entitled, “How Should Christians Respond to ‘Gay’ Marriage?” in Dix’s locker. Rightfully concerned that Dix would ignore the pamphlet, Hall sent her a follow-up email, which said in part:

I saw that book in Kentucky when we went to the creation museum. I don’t want to hurt your feelings but I felt led to leave that for you and I would not be a true friend if I ignore the responsibility that God has left for his children to share the message and hold each other accountable…. Sodomy is a sin, gay people live in sin. It is not about self gratification…. When we are in God’s will we will WANT to live right and live for him and do what the Bible says and that is to go and tell! Everything else is not important…. There is only one way to heaven.

Dix complained to management, which investigated and demoted Hall from her supervisory position. In her lawsuit, Hall alleged that when the HR Administrator communicated the demotion, she said, “We could not share our faith at work. We could not talk about Jesus at work.”

Hall claimed that discipline for discussing religion at work discriminated against her because of her religion. In dismissing Hall’s case, the court disagreed.

Other employees have been disciplined for sending offensive or harassing emails. Two employees were terminated in April of 2009 for distribution of racial, ethnic, and religious materials in the form of an email that was offensive to other employees. The email makes specific reference to Islam, blacks, black Muslims, and Hispanics….

The question is whether Plaintiff was discriminated against because of her religion — was she discriminated against because she is a Christian? Without producing evidence of a non-Christian employee in the same job being treated differently after engaging in the same activity, Plaintiff cannot establish a prima facie case.

As I’ve said before, religious proselytization does not belong in the workplace. If you permit one employee to share his or her religious views in the workplace, you will have a difficult time disciplining or terminating another for the same reason. Employers and their employees should keep religion where it belongs—in the home and in places of worship.

photo credit: danny.hammontree via photopin cc

Classification of obesity as a “disease” has huge employment law implications

News broke yesterday that the American Medical Association voted to re-classify obesity from a condition to a disease.

Conventional wisdom has been that normal, run-of-the-mill obesity, unlinked to an underlying medical condition such as diabetes, is not a disability protected from discrimination by the Americans with Disabilities Act.

This decision by the AMA, however, will likely flip that conventional wisdom on its head. The ADA, as amended in 2009, is so broad that it covers virtually any diagnosed medical condition as a “disability.” Now, employers will have to consider reasonable accommodations for anyone with a body mass index of 30 or over. Also, anyone who appears to have that BMI will have potential protections from terminations and other adverse actions related to that perceived “disease.”

While this expanded coverage of the ADA is problematic, this issue raises a deeper, more troubling problem. The goals of the ADA are commendable. Yet, as we expand the ADA to cover non-traditional medical conditions, a backlash is inevitable. Protecting the unworthy will erode the desire to protect the worthy. Every time an overweight worker sues for disability discrimination will cost those suffering from illnesses that deserve to be protected.

Congress was correct in amending the ADA to restore the original intent of the statute. Obesity protections, however, illustrate that perhaps those amendments went too far.