6th Circuit permits employers to enforce reasonable call-in rules for FMLA leave

In Cavin v. Honda of America Manufacturing, he 6th Circuit held that “the FMLA does not permit an employer to limit his employee’s FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.” Six years later, however, the Department of Labor amended the key FMLA regulation that underpinned the Cavin decision. 

That regulation, 29 C.F.R. § 825.302(d) now reads as follows:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.… Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

So, what happens now when an employer has a call-in rule that is more strict than the FMLA? According to White v. Dana Light Axle Manuf. (6th Cir. 8/7/13) [pdf]:

An employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements.

What does this case mean for you? It means that you should consider implementing reasonable call-in requirements to help curb FMLA abuse and over-use. If the statute allows you to take advantage of these policies, why not help level the playing field against a statute that, more often than not, favors the employee.

Federal court slams the door on EEOC’s criminal background check lawsuit

In EEOC v. Freeman (D. Md. 8/9/13) [pdf], the U.S. District Court for the District of Maryland dismissed a race discrimination lawsuit filed by the EEOC. Consistent with its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII, the EEOC alleged that Freeman’s criminal background checks on all job applicants violated Title VII by disparately impacting African-American job seekers.

In dismissing the lawsuit, the Court focused on the factual failings of the EEOC’s statistical expert. Eric Meyer’s Employer Handbook Blog has the details of the Court’s opinion.

The opinion also provides the most scathing indictment to date of the EEOC’s position on the use of criminal background checks by employers. Despite its length, it’s worth reprinting in its entirety.

For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable….

The present case is only one of a series of actions recently brought by the EEOC against employers who rely on criminal background and/or credit history checks in making hiring decisions. For example, in two recent complaints filed against discount retailer Dollar General Corp. and car manufacturer BMW, the EEOC claimed that those employers improperly used criminal background checks to bar potential employees, resulting in a disparate impact on African-American applicants….

Indeed, the higher incarceration rate [of African-Americans than Caucasians] might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90 percent of its positions….

By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

This case is an important first step towards a reasoned and rational understanding of the role of criminal background checks for employers. The Freeman case, however, will not be the final word. District courts nationwide will face this issue and, depending on the judge hearing the case, will agree or disagree with the EEOC’s hard-line position. It will then be up to the appellate courts, and, hopefully, the Supreme Court, to have the final say.

In the meantime, employers need to understand that criminal background checks are the EEOC’s hit list. Regardless of how this issue ultimately plays out, using a conviction record as a disqualifying factor for employment without engaging in the individualized inquiry required by the EEOC’s Enforcement Guidance will raise the EEOC’s ire and could subject an employer to an enforcement lawsuit.

I am hopeful that, in the end, common sense will prevail and rescue employers from the Hobson’s choice recognized by the Freeman court. Until then, these practices remain risky. Employers will have to balance the risk of an EEOC enforcement action against the benefit to be gained from the access to and use of criminal conviction records in hiring and employment.

6th Circuit rejects contract that shortens statute of limitations for wage claims

Twice in the last three years, the 6th Circuit has signed off on contracts between an employer and employee that shortened the time for an employee to bring a discrimination claim (here and here). 

Last week, however, that same court reversed course and refused to recognize a contractual clause that limited an employee’s right to file a wage and hour claim.

In Boaz v. FedEx (6th Cir. 8/6/13) [pdf], the 6th Circuit reviewed the following clause in an employment agreement:

To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.

Boaz sued FedEx in 2009—both for wage and hour violations and violations of the Equal Pay Act—that she alleged occurred between 2004 and 2008. FedEx moved to dismiss the lawsuit, claiming that the six-month limit in her employment agreement barred her claims.

The 6th Circuit disagreed:

An employment agreement “cannot be utilized to deprive employees of their statutory [FLSA] rights.” That is precisely the effect that Boaz’s agreement has here. Thus, as applied to Boaz’s claim under the FLSA, the six-month limitations period in her employment agreement is invalid.…

Congress enacted the Equal Pay Act as an amendment to the FLSA. By then the Supreme Court had already held that employees cannot waive their FLSA claims for unpaid wages and liquidated damages. We therefore presume that, by folding the Equal Pay Act into the FLSA, Congress meant for claims under the Equal Pay Act to be unwaivable as well.

FedEx argued to the 6th Circuit that this holding establishes a split among the statutory limitations periods that employers can contractually limit.

FedEx responds that courts have enforced agreements that shorten an employee’s limitations period for claims arising under statutes other than the FLSA—such as Title VII. And FedEx argues that the discrimination barred by Title VII (i.e., racial discrimination) is just as bad as the discrimination barred by the FLSA, and hence that, if an employee can shorten her Title VII limitations period, she should be able to shorten her FLSA limitations period too. 

The 6th Circuit rejected FedEx’s argument for two reasons. 

     First, unlike claims under the FLSA, employees can waive their claims under Title VII. 

     Secondly, an employer that violates the wage and hour laws gains a competitive advantage that does not exist by violating the FLSA.

Despite this case, I still believe that agreements that lessen statutes of limitations are an important tool to limit risk, especially in a state like Ohio, which has a six-year statute of limitations for discrimination claims (except age). If nothing else, you can limit your risk for discrimination and other employment claims, even if your wage-and-hour risk might carry forward longer. 

WIRTW #283 (the “vaycay” edition)

According to a recent survey conducted by TeamViewer, 52 percent of employed Americans plan on working during their summer vacations. While it will be impossible for me to get away from email, I will be taking the week off from writing blog posts.

I’ll see everyone with fresh content on Monday, August 12. In the meantime, however, do not forget that the deadline to submit your nominees for consideration in the ABA Journal’s Blawg 100 is Friday, August 9.

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

Discrimination

• An employee who sleeps on the job may still be qualified under the ADA — from Eric Meyer’s The Employer Handbook Blog
• State AGs Warn The EEOC: Your “Misguided” Position On Criminal Background Screens Is “Gross Federal Overreach” — from EEOC Year-End Countdown
• Workers in “The Twilight Zone” — should you offer them harassment training? — from Robin Shea’s Employment and Labor Insider
• 5 Sticky Legal Situations Employers Should Avoid — from employeescreenIQ Blog
• Protecting Older Workers Against Discrimination Act Reintroduced in Both Chambers — from Washington D.C. Employment Law Update

Social Media & Workplace Technology

• Which Employees Are the Biggest Security Risk? — from Fox Small Business Center
• Most Social Media Users Unaware Posts Can Be Used in Court — from Lawyers.com
• The Perils of Being a Social Media Holdout — from Harvard Business Review
• Recruiting Socially, But Not Allowing Employees to Be Social is a Classic Bait and Switch — from Acacia HR Solutions
• Court Holds That Employer Did Not Have “Possession, Custody or Control” of Text Messages Sent or Received on its Employees' Personal Cell Phones — from Employer Law Report
• BYOD: is personal information visible over corporate networks? — from First Reference Talks
• Manage BYOD Risks with an Effective Mobile Device Policy — from i-Sight Investigation Software Blog

HR & Employee Relations

• First Day of Work: An Employment Lawyer’s Perspective of Onboarding — from Dan Schwartz’s Connecticut Employment Law Blog
• An Employment-Law Perspective on the Anthony Weiner Story — from Molly DiBianca’s Delaware Employment Law Blog
• Five Tips for Conducting Lawful Employment Background Checks — from Michigan Employment Law Advisor
• How to Avoid Becoming Part of “No Vacation Nation” — from Lifehacker
• The 5 Things You Need to Communicate During a Layoff — from TLNT
• Improve Your Workplace Documentation Practices: When to Document? Immediately! — from Southwest Florida HR Law & Solutions
• Can I Tape My Employer If I Have Poor Memory? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• Often Asked - Never Resolved - Who owns my LinkedIn Contacts? — from Smooth Transitions
• Wanted: Fair Wages Mobile App — from InformationWeek
• Does The FMLA Protect a Supervisor’s Right To Defend a Subordinate’s Leave Of Absence? — from Hunton Employment & Labor Law Perspectives™
• In Its Most Surprising About-Face To Date, DOL Abandons Administrator's Interpretation and Sides With Employer — from The Wage and Hour Litigation Blog

Labor Relations

• The NLRB Is Back — from Workplace Prof Blog
• A whopper about fast-food wages — from Walter Olson’s Overlawyered
• Fast Food Strikes Catch Fire — from Workplace Fairness
• Your Social Media Policy Can't Be Too Restrictive, Says NLRB — from In House
• The NLRB Could Learn From the Seventh Circuit — from The Employment Brief

What to look for in the coming year from the EEOC

Yesterday, I had the pleasure of speaking on social media at ACI’s Employment Discrimination Conference in New York City. One of the benefits of speaking at such an event is the ability to hear the other great speakers. Yesterday was no exception.

The conference’s keynote speaker was Constance Barker, one of the EEOC’s two Republican Commissioners. She was thoughtful and eloquent in sharing her personal opinion on the direction of her Agency.

One of the highlights of her remarks was the sharing of four issues on the Agency’s radar that she expects will appear as formal, written Enforcement Guidance in the coming year.

• Reasonable accommodations of disabilities
• Reasonable accommodation of pregnancy under Title VII
• Unemployment as a “protected class” under Title VII
• Credit history as a “protected class” under Title VII

Needless to say, the EEOC’s activism is not going away (at least between now and 2016). Employers need to keep an close eye on these issues as the develop in the future at the Agency.

Fired news reporter, Shea Allen, illustrates the meaning of “profersonal” for today’s workers

It’s exactly a year to the day that I first wrote about the disappearing line between the professional and personal online. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal, social media’s intertwining of our professional and personal personas.

Yesterday, the Today Show brought us a textbook example. Shea Allen, a Hunstville, Alabama, television news reporter, lost her job because of a post she wrote on her personal blog. The post, entitled, “No Apologies: Confessions of a red headed reporter,” included the following:

• I’ve gone bra-less during a live broadcast and no one was the wiser.
• My best sources are the ones who secretly have a crush on me.
• I am better live when I have no script and no idea what I’m talking about.
• I’m frightened of old people and I refuse to do stories involving them or the places they reside.
• I’ve taken naps in the news car.
• If you ramble and I deem you unnecessary for my story, I’ll stop recording but let you think otherwise.

That an employee was fired for something she posted on her personal blog is not necessarily newsworthy. However, it makes for an interesting juxtaposition with a recently published report on business ethics and social media.

According to the National Business Ethics Survey® of Social Networkers:

• 79 percent of social networkers (defined as an employee who has an account on at least one social network) consider how their employer would react before posting something work-related on a personal social networking site
• 64 percent consider how their employer would react to personal information posted to a personal site
• 26 percent believe it is acceptable to post about their job even if they do not identify their employer.

It is comforting to read that nearly 8 out of 10 social networkers consider their employer before posting. Yet, when one considers that according to the Today Show, 53 percent of Americans side with Shea Allen and feel that she shouldn’t have lost her job, it is clear that there still is work to be done in educating employees about what it means to profersonal.

Thus, I’ll leave you with my words on this topic from one year ago, which bear repeating:

Employees need to realize that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination (even if employers can overreact in these situations). Until people fully understand that social media is erasing (has erased?) the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in a “profersonal” world.

The DOL’s “Fair Labor Data Challenge” presents an interesting strategy, but is it fair?

The Department of Labor is asking for help to create an iPhone/Android app to aid employees in tracking corporate wage-and-hour compliance.

The DOL Fair Labor Data Challenge will “help consumers locate … establishments and view their federal enforcement and violations history as well as read consumer reviews to help them decide where to spend their hard-earned wages.”

According to the DOL, the “app … would work with existing social media and would allow consumers to see if an establishment that they want to frequent has been in compliance with federal labor laws.” Its hope is that by “providing consumers with information at their fingertips about which businesses have treated their workers fairly and lawfully, the app will empower them to make informed choices about where to shop, eat, or even vacation.” Thankfully, in addition to flagging underpaying scofflaws, it “also will recognize those employers who are doing the right thing and playing by the rules.”

In other words, the DOL wants to shame employers into wage-and-hour compliance. The DOL itself says, “Our investigators can’t be in every workplace, and we’ll never reach every establishment through our traditional forms of outreach.” So, to compensate for its enforcement black-hole, the DOL is turning to viral outreach to create a way for people to soft-boycott those businesses that employees say do not comply with the wage-and-hour laws.

I will be very curious to see what this final product looks like if it ever hits the App Store. For this app to live up to its “fair” name, it must provide employers the ability to rebut negative comments. Otherwise, this app will be nothing more than a one-sided vent for disgruntled employees. Regardless, employers should keep this issue on their radars as yet another reason to get their wage-and-hour practices in line.