WIRTW #282 (the “shut yo’ mouth” edition)

Language and race have been in the news lately. From Trevon Martin to Paula Deen, it seems that everyone is talking about the meaning of race in 2013-America. It seems appropriate, I suppose, to share this video, and, maybe, bring a little levity to a very serious topic. 

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

Discrimination

• If you want to win your retaliation case, don’t be a donkey. — from Robin Shea’s Employment and Labor Insider
• EEOC suits claim employers violated genetic bias law by asking for family history in required exams — from ABA Journal Daily News
• Zimmerman Trial Leads to Whistleblower Lawsuit — from Phil Miles’s Lawffice Space
• EEOC Lawyers Discuss Misconceptions, Guidance About Criminal History Checks — from Bloomberg Law
• Sexual Harassment Claim Allowed Based On Spankasaurus And Gabbygail Comments — from Atlanta Employment Lawyer Blog
• Male Employee Who Wears “Girly” Shirts May Have Sexual Harassment Claim — from The Employment Brief
• Sexual Harassment: Crowdsourcing advice — from Mike Haberman’s Omega HR Solutions
• Illegal or Ill-Advised? More on Pre-Employment Interview Questions — from The Emplawyerologist

Social Media & Workplace Technology

• The Nasty Side of Social Media … And What Employers Can Learn From It — from Dan Schwartz’s Connecticut Employment Law Blog
• Is There a Reasonable Expectation of Privacy In Your Tweets? — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook “tagging” adds a new wrinkle to social media discovery — from Eric Meyer’s The Employer Handbook Blog
• What Bosses Can and Can’t See On Your Smartphone — from Yahoo! News
• From Crisis 1.0 to Crisis 2.0: The Need for Social Media Responsible Use Training — from Social Media Today
• Proper Etiquette For Online Lurking When You’re the Boss — from from Workplace Diva

HR & Employee Relations

• Courts Continue Chipping Away at Employees’ Rights — from Texas Employment Law Blog
• More Answers To Your Noncompete Questions — from Donna Ballman’s Screw You Guys, I’m Going Home
• Five Year Non-Compete Enforced In Indiana — from Trade Secrets and Noncompete Blog

Wage & Hour

• 7 do’s and don’ts to keep wage-and-hour lawsuits at bay — from Business Management Daily
• First Circuit Federal District Court Holds Automatic Meal Break Deduction Policy Does Not Satisfy Commonality Requirement for Class Certification — from Wage & Hour Counsel
• Wage and Hour Violations at Restaurants — from Nolo’s Employment Law Blog
• Knock, Knock…It’s The Department of Labor! — from Work Place Coach Blog News
• Can you fire an employee on FMLA leave? — from Warren & Associates Blog

Labor Relations

• What to Expect From the Incoming National Labor Relations Board : Labor Relations Today — from Labor Relations Today
• The “new” NLRB: much ado… — from Michigan Employment Law Connection
• What is this in my email? Oh, just the NLRB — from HR idiot

Giving Employee the “Milton Treatment” Leads to Discrimination Claim

And I said, I don’t care if they lay me off either, because I told, I told Bill that if they move my desk one more time, then, then I’m, I’m quitting … I’m going to quit. And, and I told Dom too, because they’ve moved my desk … four times already this year, and I used to be over by the window, and I could see … the squirrels, and they were merry, but then, they switched … from the Swingline to the Boston stapler, but I kept my Swingline stapler because it didn’t bind up as much … and I kept the staples for the Swingline stapler and it’s not okay because if they take my stapler then I’ll have to … I’ll set the building on fire...

– Milton Waddams, Office Space

I love the movie Office Space. One of the movie’s best sub-plots involves Milton Waddams. Milton works for Bill Lumbergh, and is Lumbergh’s punching bag. Lumbergh belittles him, steals his red Swingline stapler, continuously reduces the size of his cube, and, ultimately, transfers him to a basement storage closet. All the while, Milton mumbles under his breath that he’s going to set the building on fire. True to his word, Milton ultimately gets his revenge by burning down the office.

Why am I telling you the plot of Office Space? Because, according to this story in the St. Joseph, Missouri, News-Press, a former employee of the Missouri Department of Transportation is alleging that the department discriminated against her because of her age by … are you ready … moving her out of her office and forcing her to work from a moldy storage closet.

While there are two sides to every story, generally it is a bad idea to react to an employee’s internal complaint about age discrimination by moving her workspace from an office to a storage closet. Milton earned his revenge by arson. This employee is seeking hers via the courts. Either way, giving any employee the Milton treatment, let alone doing so on the heels of a complaint about discrimination or some other protected activity, is a horrendous idea.

This post originally appeared on The Legal Workplace Blog.

Is this the worst fake doctor’s note ever? And what could you do about it?

Buzzfeed recently published the above note, which an employee provided asking his boss for a day off from work. Not only did the employer refuse the time off, but, as you can see above, the employer edited the note, remarked on all of the typos, errors, and misspellings, and returned it to the employee with the caption, “How NOT to fake a doctor’s note.”

Even though an employer might have every reason to believe that a doctor’s note is fake, an employer runs the risk of an FMLA violation by summarily denying time off without following the FMLA’s procedures for authenticating a medical certification.

Authentication

• The FMLA permits an employer to contact the medical provider who purported to provide the certification to authenticate the document.
• Authentication means providing the health care provider with a copy of the certification and requesting verification that the health care provider who signed the document completed or authorized it.
• An employer may not request any additional medical information.
• An employer must first provide the employee with the opportunity to authenticate the note.
• If, however, the employee fails or refuses, the employer, through a health care provider, human resources professional, leave administrator, or management official—but not the employee’s immediate supervisor—may contact the employee’s health care provider directly for purposes of authentication.

Second and Third Opinions

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second (and possibly third) opinion:

• The second opinion must be at the employer’s expense.
• Pending receipt of the second opinion, the employee is provisionally entitled to all of the benefits of the FMLA, including intermittent leave. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the employer then has the right to retroactively designate the leave as non-FMLA.
• An employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider must be one that it does not regularly contract with otherwise regularly use the services of.
• If the opinions of the employee’s and the employer’s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer’s expense. This third opinion is final and binding.
• Upon request by the employee, an employer is required to provide the employee with a copy of the second and third medical opinions within five business days of such request.

Your gut instinct might say fire this employee, but following that instinct could get you in trouble under the FMLA if note turns out to be legit. Following the FMLA’s rules for authentication, and second and third opinions, will give you the legal ammo to fire the offending employee. In the meantime, place the employee on conditional FMLA leave, which is unpaid. A few weeks down the road, once you confirm that the note is inauththentic, you can fire the employee without having incurred much expense or burden in the interim (save a couple of medical exams if you have to go the route of second and third opinions).

For more on verifying FMLA leaves of absence, I recommend Jeff Nowak’s recent post on his FMLA Insights Blog, entitled, Is Your Employee Paying a Deception Service to Provide You a Fake Doctor's Note or FMLA Certification?

Instagram, Vine, and … the NLRB (uh-oh)

Are you concerned about the impact of micro photo and video sites such as Instagram and Vine on your workplace? For the past few months, Dan Schwartz, writing at his Connecticut Employment Law Blog, has been all over this issue, suggesting that in light of the growing popularity of these sites, now more than ever employers need social media policies, while also cautioning that the regulation of workplace photos and videos would be the next social media enforcement frontier for the NLRB.

It appears that Dan’s prediction was right on the money. Last week, the NLRB’s Office of General Counsel published an Advice Memorandum [pdf] (dated March 21, 2012, but, for reasons unknown, which sat unpublished for 16 months).

Among other issues, the memo took up the following prohibition in a supermarket chain’s social media policy:

Do not use any … photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.

According to the NLRB Office of G.C., that policy is, on its face, an overly restrictive ban on employees’ rights to engage in protected concerted activity:

We further find that the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities.

Amazingly, the only citation provided in support of this broad legal statement is a 22-year-old case, which held that an employee’s tape recording of a jobsite to provide evidence in a Department of Labor investigation is protected. Folks, there is a huge difference between recording something at work to gather evidence for a government investigation, and this.

The NLRB needs to allow employers to promulgate reasonable rules that protect their legitimate interests (e.g., confidentiality, or ensuring that employees are actually working during working hours), while protecting the rights to employees to engage in legitimate protected activity (e.g., complaining about discrimination or working conditions, or gathering evidence for a government investigation). Otherwise, the NLRB is attacking facially neutral policies because of an imagined parade of horribles that could never materialize, all the while making it exceedingly difficult for businesses to draft policies that establish reasonable baseline expectations for workers and management.

Hat tip: Labor and Employment Law Perspectives

“That guy” has a valid retaliation claim?

Every workplace has “that guy.” The employee who can’t quite seem to keep his mouth shut, who says inappropriate things, the one you know will someday lead to a harassment lawsuit. (Hint: If you can’t think of who “that guy” is in your workplace, it might be you).

Dunn v. Automotive Finance Corp. (M.D. Tenn. 7/2/13) is about “that guy,” but with a twist. “That guy” was Robert Dunn, a manager terminated by Automotive Finance Corp. for making inappropriate racially based comments during a social gathering following a training session. Present for Dunn’s alleged comments were four other white managers, along with one African-American assistant manager, Rick Hopkins. Several of those present complained about Dunn’s comments; the company investigated and fired Dunn.

Dunn was accused of making three racially insensitive comments:

• A comment that Tiger Woods was being judged by a white man’s standard, as compared to Michael Vick, who went to prison.
• A comment that his mother was Indian and not allowed to sit with White people back in the day.
• In reference to a statement that Hopkins would be the next manager at the company, Dunn said, “Good luck. Have you seen a family photo of this place?” and that the company had very few African-American managers “walking the halls.”

What was Dunn’s explanation when a co-worker expressed her discomfort at his statements? “That’s just how I am, because I’m a country boy.” When that same co-worker complained to management about Dunn’s comments; the company investigated and fired him.

Here’s the twist. Dunn sued for retaliation, claiming that Title VII protected his comment about a lack of upward mobility for African-Americans within the company. Incredibly, the court agreed that Dunn’s statement at least presented a question for a jury to determine as to whether that comment is protected from retaliation under Title VII.

Dunn made one comment or a set of comments that could reasonably be construed as protected activity: complaining in front of the Branch Managers that AFC discriminated on the basis of race with regard to promoting black managers. There are competing accounts as to precisely what Dunn said, although the witnesses who recall the incident appear to agree that Dunn accused AFC of being a racist company and/or that Dunn stated that AFC would not promote Hopkins because he is black…. The fact that Dunn made this comment in front of a black Assistant Branch Manager and that it made the white employees “uncomfortable” was just a side effect of speaking his mind that the company had and would continue to practice illegal racial discrimination.

The company argued that Dunn was merely seeking “to insulate himself from the consequences of [his] inappropriate conduct by concocting a post hoc rationalization that he had actually engaged in some form of ‘opposition’ activity.” I agree.

Cases like this one undermine the protections offered by the anti-retaliation laws, and send the wrong message to employers. The company fired Dunn because a co-worker complained about inappropriate race-based comments. The employer met is obligation under Title VII to investigate the allegations, and implement corrective measures to ensure that the comments stopped. Yet, the employer got punished for meeting its anti-harassment obligations. If the employer retained Dunn, it could have faced a potential harassment lawsuit. An employer should not have to choose between a harassment lawsuit by an offended employee, or a retaliation lawsuit by an alleged harasser who appears less than genuine in his “complaints.”

This case also is a perfect example of the maxim that any employee can sue at any time for any reason, and helps illustrate my point that because of the risk of lawsuits, employers are exceedingly gun-shy about firing employees.

photo credit: foreverdigital via photopin cc

WIRTW #281 (the "is it live or is it Memorex" edition)

Earlier this week, I appeared on Huffington Post Live, in a segment discussing discrimination laws, at-will employment, and the rights of employers to terminate employees. If you missed it live, here’s your chance to see me live and in Internet-buffered color:

Also, if you missed this month’s Employment Law Blog Carnival, hosted by Robin Shea, it is worth a trip down Route 66 to read the best employment-law posts from the past month.

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

Discrimination

• Roadmap for Responding to an Employee’s Request for Religious Accommodation — from Employment Law Lookout
• What Do You Mean I Can’t Ask That Question????!!!! — from The Emplawyerologist
• Boss fired breast-feeding mother: Was it pregnancy discrimination? — from HR Café
• Dear Evil Skippy: Was It Harassment For My Supervisor To Give Me A Massage? — from Evil Skippy at Work
• Court Resists “Irresistible” Employee’s Lawsuit... Again — from Phil Miles’s Lawffice Space
• Beware the Dark Side: “But For” Doesn’t Mean “Sole Cause” In Retaliation Claims — from Donna Ballman’s Screw You Guys, I’m Going Home
• What Exactly Does Vance v. Ball State University Mean to Employers? — from Employment & the Law

Social Media & Workplace Technology

• How 3 NFL players’ mea culpa will improve your social media policy — from Eric Meyer’s The Employer Handbook Blog
• You, Too, Can Move Your Company Into the Cloud — from Harvard Business Review
• What Are Your Rights to Life, Liberty and the Pursuit of Privacy? — from The Sociable Lawyer Blog
• Security is Key to “BYOD” Policies — from Pennsylvania Labor and Employment Law Blog
• BYOD: Do You Feel Lucky? Well, Do Ya Punk? — from Ride The Lightning
• Employers, Facebook, and the SCA Do Not a Love Triangle Make — from Molly DiBianca’s Delaware Employment Law Blog
• Service of Process Via Social Media – a Comparative Approach — from Augmented Legality
• What happens to your smartphone after it’s stolen — from The Verge
• Electronic media use policies must be applied evenly and consistently — from EmployerLINC

HR & Employee Relations

• Top Ten Things to Consider When Drafting A Non-Compete Agreement — from Trade Secrets & Non-Compete Blog
• Would You Hire Someone With a Visible Tattoo? — from hr bartender

Wage & Hour

• When using temps, make sure temp agency retains control of employment relationship — from Business Management Daily
• Why Interns Are Suing ‘Saturday Night Live,’ Hollywood, and Other Dream Employers — from Businessweek
• Sixteen Types of Wage & Hour Records Employers Need to Keep — from Dan Schwartz’s Connecticut Employment Law Blog

Labor Relations

• NLRB General Counsel Keeps Unfriending Employer Social Media Policies — from Employment Law Watch
• “Nuclear Option” Averted (For Now), NLRB Likely To Reach Full Strength Soon — from Labor Relations Institute
• NLRB Truth: 10 Reasons Why the National Labor Relations Board Matters — from Workplace Fairness
  
  
  
  
  
  
  
  
  
  
  

Ohio Supreme Court strikes blow to class action lawsuits

In recent terms, the U.S. Supreme Court has shown some hostility to class action lawsuits. 

• In Wal-Mart v. Dukes, the Court concluded that a district court must examine the underlying merits of a claim to determine if class certification is appropriate, and that a class must have some glue binding disparate decisions to justify certifying all of those decisions for consideration in one class. 
• In Comcast v. Behrend, the Court expanded upon Dukes by concluding that a class that requires individualized proof to establish damages for each class member cannot survive as a class action.

The impact of these two decisions might to send class litigants, if possible, to state court. Dukes and Comcast are federal decisions under Federal Civil Rule 23. If a state’s class-action-certification rules are more lenient, then the class’s attorney will do whatever it takes to keep the class in state court. 

Yesterday, however, the Ohio Supreme Court made this strategy much more difficult. Stamcco, LLC v. United Telephone Co. of Ohio [pdf], is not an employment case. It involves allegations of cramming — claims that the defendant added unauthorized charges the class members’ telephone bills. Yet, this case has huge implications for how all class actions are litigated under Ohio law, including classes alleging, for example, violations of Ohio’s employment discrimination or wage and hour laws.

With extensive citations to, and discussion of, Dukes, the Court held:

At the certification stage in a class-action lawsuit, a trial court must undertake a rigorous analysis, which may include probing the underlying merits of the plaintiff’s claim, but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.

Implicitly adopting the logic of Comcast, the Court also held:

We now recognize that the need for individualized determinations is dispositive in concluding that the class does not comport with Civ.R. 23.

Rejecting the plaintiff’s claim that a court could apply a simple formula to data provided by the defendant to determine each member’s claim, the Court concluded that this case cried out for individualized determinations:

Unauthorized third-party charges are better resolved on an individual basis with the third party or UTO. UTO’s phone bills identify third-party charges, the entity responsible for the charge, and a toll-free number for billing inquiries. Moreover, UTO claims that it has a policy of removing third-party charges for the purpose of maintaining good will with its clients. Finally, for larger charges or where the charge cannot be resolved over the phone, small-claims court is also an option. Accordingly, because ascertaining whether third-party charges are authorized will require individualized determinations, common issues do not predominate.

One could apply the same logic to wage and hour claims. If an employer has, for example an open-door policy, and will consider providing redress to employees on a case-by-case basis for complaints about missing wages, one cannot apply a simple formula to calculate class-wide damages. Moreover, while the plaintiffs’ bar will lose their minds over the idea of small-claims court, it remains a viable option for employees to inexpensively litigate their right to missing wages. The $3,000 limit for small claims will cover the vast majority of individual wage and hour claims.

Stamcco is a huge victory for Ohio businesses. It is now that much harder to establish a class action, confirming that Ohio’s class-action rules fall in line with their federal counterparts.