WIRTW #284 (the “help if you can” edition)

I’ve never used this space to ask anyone to donate to anything. This week is an exception.

My niece had a scare. After months of knee pain, doctors found a 6 cm mass on her tibia. We feared the worst. After Wednesday’s surgery we received the best possible news—a benign giant cell tumor that had eaten away her leg until her tibia resembled Swiss cheese. She is on the road to recovery, which includes long and difficult rehab coupled with the risk that her repaired and rebuilt leg could fail.

She also faces crippling out-of-pocket medical expenses that will saddle her family for years, which includes my 1- and 2-year-old great-nieces, and her husband, a veterinary resident who’s taken an unpaid leave of absence to be with his family.

If you want to read the entire story, jump over to EncouragingErin.com, a blog/donation site we established to help my niece and her family. All help, thoughts, and words of encouragement are appreciated. Thanks for reading.

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

Discrimination

• “Race-based claims thrown out in Paula Deen lawsuit” — from Walter Olson’s Overlawyered
• How The EEOC’S Scrutiny Of Background Check Practices Has Employers Between A Rock & A Hard Place — from Employment Essentials
• Interactive Process is Two-Way Street — from Dan Schwartz’s Connecticut Employment Law Blog
• The EEOC Is Now Officially An Employee Side Employment Law Firm — from The Labor and Employment Law Blog
• NFL player’s racist comment sparks debate — from John Phillips at HR Hero Line (welcome back old friend)
• Go Figure: The EEOC Clears Itself on Discrimination Charges — from Labor & Employment Law Perspectives
• Are EEOC Guidelines for Employment Background Checks Still Confusing? — from employeescreenIQ Blog
• When it comes to ADA accommodations, reasonable is good enough — from Eric Meyer’s The Employer Handbook Blog

Social Media & Workplace Technology

• Kansas Court Mitigates the Risks of a BYOD Workforce — from Molly DiBianca’s Delaware Employment Law Blog
• Online in 60 seconds — from SocialFish
• 72% of Adults Online (Your Employees) Use Social Networking Sites — from EmployerBrief
• Legal implication for employers when employees download apps on work devices — from Employment Law Bits
• More than a third of Americans use Facebook every day — from The Verge
• HR: Corporate America’s social media cops — from Business Management Daily

HR & Employee Relations

• An Employee Says She's Being Sexually Harrassed. Now What? — from The Evil HR Lady, Suzanne Lucas, writing at Inc.com
• Who Should Conduct Your Workplace Investigation and Why Does it Matter? — from The Emplawyerologist
• Is it Harassment or Just Questionable Behavior in the Workplace? — from i-Sight Investigation Software Blog
• Most Embarrassing Termination Ever — from The Tim Sackett Project
• “Hell or High Water” or Fraud: Court Rules That Supermarket Scion Was Entitled To ‎Post-Termination Benefits Despite Misconduct ‎— from Suits by Suits
• How to Bust the Most Common Age-Related Stereotypes at Work — from Lifehacker
• Are you prepared for very old workers? — from Mike Haberman’s Omega HR Solutions
• Working Fathers Need Balance, Too — from Harvard Business Review
• The One Sentence HR Handbook — from Fistful of Talent
• Have you taken a personality test for a job or any other reason? If so, was it a useful tool? — from ABA Journal Daily News

Wage & Hour

• Take 2: Does Annual FMLA Certification First Require an Employee's Absence? — from Jeff Nowak’s FMLA Insights
• DOL Recognizes Same Sex Marriage for FMLA — from Phil Miles’s Lawffice Space
• Independent contractor’s email was key factor in finding he had apparent authority to bind principal — from Internet Cases

Labor Relations

• Text “FRONTGROUP” to … — from LaborPains.org
• Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use — from Ross Runkel Report
• NLRB Judge Says Employer’s Baseball Cap Logo Restriction Violates Employees’ Section 7 Rights — from Labor & Collective Bargaining

Clearing up some misconceptions on social media and privacy

“Bosses force woman to show Facebook page to prove she's not lying,” reads this headline on the venerable technology website, CNET. According to the article, the New Zealand Employment Relations Authority has required a fired flight attendant to provide her ex-employer with access to her Facebook page to prove, or disprove, the fact that her use of sick leave was legitimate.

What follows are three incorrect statements in an attempt to deconstruct this issue:

1. “If such precedents continue to be set, everything that is digitally accessible may become evidence if an aggressive litigator decides that it might be useful.” In reality, the precedents are wildly inconsistent. Courts across the country are weighing the privacy rights of a litigant versus the relevance of the requested social media information. In this case, the judge favored the latter. A different judge could have reached a different result. One case, however, cannot be read as an indictment of the erosion of personal privacy rights.
   
2. “Employers all over the world have begun to demand Facebook access to private accounts—some at the job interview stage.” This statement is not one of fact, but instead one of hyperbolic opinion. In reality, my research reveals that very few employers engage in this practice. Don’t just take my word for it. Also take the word of an Australian law firm that conducted a similar survey, with similar results.
   
3. “Six U.S. states have now deemed it illegal for employers to do this.” In gross over-reaction to this issue, it’s sadly 11 states that have banned employers from requiring access to an employee’s social media account. Regardless, these laws do not prohibit a judge from providing access as part of the discovery process.

Employers are not requiring employees to turn over access to their personal social media pages. Court sometimes require litigants to turn over social media information when it might be helpful to prove or disprove a claim. End of story.

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.