5th Circuit upholds legality of class action arbitration waivers

D.R. Horton v. NLRB [pdf] concerns whether, under the National Labor Relations Act, an employer can enforce against its employees an arbitration agreement under which the employees agree to arbitrate all employment claims, but waive their right to do so as a class or collective action in any forum.

The NLRB had held that such an agreement violates the NLRA by unlawfully limiting the employees’ rights to engage in protected concerted activity.

Yesterday, in reviewing that NLRB decision, the 5th Circuit Court of Appeals disagreed, and overturned the NLRB’s efforts to invalidate all attempts by employers to ban class arbitrations.

In its ruling, the Court concluded that the Court had overstepped its bounds by ignoring the implication of the Federal Arbitration Act. The opinion is an interesting read for those interested in agency deference and statutory interpretation. Otherwise, all you need to know about this opinion is that class action waivers are legal, so long as employees cannot reasonably read them to restrict their right to file unfair labor practice charges with the NLRB.

Readers of my blog will know that I am not a fan of employment arbitration agreements. Nevertheless, for employers who favor this tool, this case is a huge victory in confirming the scope of how far an employer can go with such an agreement.

Don’t be a jughead by thinking that white men aren’t a protected class

A group of male employees of Archie Comics filed a gender discrimination lawsuit against their employer. They allege, among other things, that Nancy Silberkleit, the company’s co-CEO, constantly referred to them by their male anatomy instead of by name.

In her defense, Silberkleit claims that she cannot be liable because “white men” are not a class protected from discrimination.

Rest assured, that defense is a loser. Title VII does not just protect minorities from discrimination. It protects all employees from discrimination. Thus, a male employee enjoys the same rights as a female employee to a workplace free from discrimination, just as a white employee has the same rights a black employee. An employer cannot treat men differently than women, or whites differently than blacks, and the disparately affected and marginalized class (whether or not a historical minority) has a claim.

My advice to Nancy Silberkleit? Abandon your defense, get out your checkbook, and take some EEO training.

[Hat tip: BuzzFeed]

Sometimes, employees get what they deserve

At 10:35 Saturday morning, I was stopped at an intersection on my way home from dropping my daughter off at her band rehearsal. From the passenger seat of the car stopped next to me in the left-turn lane emerged a guy, mid-twenties, clad in Ohio State gear and holding a beer. After he slid out of the open door, he proceeded to start dancing in the middle of the intersection while “Hang on Sloopy” blared from the car’s radio. After a minute or so of this folly, the red light turned to a green arrow, he jumped back on the car, and it spend around the turn with his door still open.

My thoughts of what an ass this guy was quickly turned to cheers for justice as I saw the blue-and-reds of a police car fly past me to pull over the dancing fool. I didn’t stick around to see the end of the story, but my hope is that he missed Ohio State’s last-second victory over Michigan from the confines of the police station’s lockup. 

This guy clearly got what he deserved. No one should feel any sympathy that this early-morning partying clown likely missed the Ohio State / Michigan game. Yet, everyday, employers take pity on poor-performing employees. 

It’s okay to fire an employee. If expectations are communicated and not met, if an employee understands what needs to be done to succeed and misses the mark, or if an employee does not improve after a sufficient number of chances, then it‘s okay to let an employee go. Employers, however manage from a culture of fear. They fear lawsuits, which, in turn, paralyzes employment decisions. As a result, mediocre employees (or worse) keep their jobs. 

As we approach the new year, I’d like employers to resolve to break this chain of mediocrity. It’s okay to fire someone, as long as you’re not motivated by an illegal reason. Communicate your expectations, give your people a fair and reasonable chance to meet them, and, if they fail, cut bait. No one feels bad for the dancing Ohio State fan; don’t feel bad for the poor employee who has’t worked out. 

It’s a four-peat—ABA Journal again names the Ohio Employer’s Law Blog to its list of the top 100 legal blogs #Blawg100

The list of pro sports teams that have four-peated their respective championships is a short one:

• New York Yankees
• Boston Celtics
• Montreal Canadiens
• New York Islanders

It’s a rare feat indeed.

Thus, I am humbly honored that the ABA Journal has, for the fourth year in a row, named me to its list of the top 100 legal blogs, simply known as the Blawg 100.

According to the ABA Journal, the criteria for inclusion are “blawgs that are regularly updated, contain original content, opinion and/or analysis. Many are also on our radar because the Journal staff finds the posts useful in terms of tipping us off to news or generating posts we consider worthy of coverage.” As for me, the ABA Journal says that I’m included because of my “frank and conversational style of writing, and “the quality of analysis.” Yes, ABA Journal, I’m blushing.

My blog is listed alongside six others in the “Labor & Employment” category (the most robust blawging community, if you ask me), each of which is very deserving of inclusion (in no particular order): Dan Schwartz’s Connecticut Employment Law Blog (and congrats to Dan for his enshrinement in the Blawg 100’s Hall of Fame), Molly DiBianca’s Delaware Employment Law Blog, Eric Meyer’s The Employer Handbook, Jeff Nowak’s FMLA Insights, Donna Ballman’s Screw You Guys, I’m Going Home, and Seyfarth Shaw’s Trading Secrets. I am particularly proud to be in this group because I consider many of these people to be friends, friendships which developed out of our blogs.

So, as we move towards Thanksgiving, I am especially thankful to all of you who have read what I’ve written for the past six and a half years. Cheers! I’ll see everyone back on Monday, as we start the march to number five.

(If you are inclined to cast votes for your favorites among the Blawg 100, you can do so here, registration required).

Social media background checks as discrimination

I’ve long argued that employers take a risk when they use social media to vet job candidates without putting in place sufficient controls to prevent the disclosure of protected EEO information. Now, we have the empirical evidence to back me up.

Last week, the Wall Street Journal reported on a research study conducted by Carnegie Mellon University:

The study, … involving dummy résumés and social-media profiles, found that between 10% and a third of U.S. firms searched social networks for job applicants' information early in the hiring process. In those cases, candidates whose public profiles indicated they were Muslim were less likely to be called for interviews than Christian applicants. The difference was particularly pronounced in parts of the country where more people identify themselves as conservative. In those places, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims.

Thus, even though employers avoid asking applicants about taboo hiring subject such as religion, social media profiles, which might contain information such as quotes from religious tests or a “like” for one’s place of worship, could lead to the inadvertent discovery of an applicant’s religion, opening the door to unconscious and unintentional biases. 

What is the answer to this problem? According to one lawyer quoted in the WSJ article, “[I]t’s not a good idea to use social media as a screening tool.” 

That view, however, is short-sighted. It ignores all of the valid, legal information one can learn about an applicant from their social media pages—references to illegal drug use, posts of sexual or racist nature, poor communication skills, the disclosure of confidential information, or the trashing of an old boss or employer. The trick is discovering this “good” information while, at the same time, screening out the “bad” protected EEO information. How does a company accomplish this task? My answer to this question hasn’t changed:

Don’t let anyone in the chain of hiring view candidates’ social media profiles. Train an employee who is insulated from the hiring process to do your social media searches, scrub all protected information, and provide a sanitized report to those responsible for making the hiring decision. That way, no one can argue that protected information posted on a social network illegally influenced a hiring decision.

For more information on this timely and important issue, please join me on December 5 at 1:00 pm, when I’ll be the special guest on a webinar hosted by Newton Software, entitled, Avoiding the Biggest Pitfalls of Social Recruiting.

WIRTW #298 (the “thankful” edition)

My daughter’s homework last night was to interview five people about what they are thankful for, and summarize the interviews in a short book. She chose to ask her brother, her grandparents, her guitar teacher, and our dog (bonus points for second-grade creativity). Since I did not get the chance to participate, I thought I’d use this space to list what I’m thankful for this year.

A loving and supportive wife, two amazing children, health and happiness, that my children still have all four of their grandparents, doggie daycare, my firm (which has been overwhelmingly supportive of this blog for six and a half years), and all of my subscribers, readers, and followers.

If you’re so inclined, feel free to share your list in the comments below, or on Twitter with the hashtag #OELBThankful

Happy Thanksgiving to everyone. I’ll have fresh content Monday and Tuesday, and will be taking the rest of next week off.

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

Discrimination

• Third Circuit Decision in Transgender Discrimination Case — from Phil Miles’ Lawffice Space
• You Want to Work Where? Working From Home As a Reasonable Accommodation — from Employment Law Lookout
• Being At Work Is An Essential Job Function — from The Blue Ink
• EEOC issues discussion points on permissible uses of “integrity testing” — from Employment Law Matters
• Court Finds Odor Sensitivity May Be Disability under ADAAA — from The Employment Brief
• Employee medical exams and the law - how much do you know? — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• “My Employee is on Facebook Four Hours a Day. What Do I Do?” — from Dan Schwartz ‘s Connecticut Employment Law Blog
• Employee Privacy and Smart Phones: Even if Employers Give Phones to Employees, Don't Read Personal Content! — from Wisconsin Employment & Labor Law Blog
• Yes, you can get fired for trashing your company on Facebook — from Ragan.com
• 10 Social Media Statistics You Might Not Expect — from Social Media Strategies Summit Blog
• What the Internet Of Things Will Bring to the Workplace — from Innovation Insights
• Personal devices in the workplace: a recipe for cost savings or disaster? — from Technology for HR
• The Circle: Transparency as Prison — from HR Examiner with John Sumser

HR & Employee Relations

• Don’t Ever Apologize for Being a Good Parent, and Other Lessons for Hard-Working Women — from Fast Company
• Parental Leave in the US Really Does Suck — from Fistful of Talent
• Background Check Selfie: Good for Job Seekers, Employers Beware — from employeescreenIQ Blog
• How to Accidentally Hire a Convicted Felon — from TLNT
• It Was The Added “0” That Did It—Among Other Things — from Suits by Suits
• ‘Tis The Season To Be … Sick? — from Manpower Employment Blawg
• HR Lessons from TV’s Parks and Recreation — from Blogging4Jobs

Wage & Hour

• How Much Does It Cost To Make A Wage And Hour Case Go Away? — from The Wage and Hour Litigation Blog
• Surf’s Up: Riding The Wave Of Unpaid Intern Lawsuits — from The Wage and Hour Litigation Blog
• FACT OR FICTION: Giving a part-time employee full-time hours may be FMLA retaliation? — from Eric Meyer’s The Employer Handbook Blog
• Worker With “Crying Spells” After Daughter Was Raped Can Bring FMLA Claim — from Atlanta Employment Lawyer Blog

Labor Relations

• NLRB Digging Deeper Into Corporate Labor Practices — from Corporate Counsel
• NLRB: “Merit” in Some Charges Against Walmart Concerning Handling of Employee Protests — from Joe’s HR and Benefits Blog
• Double Take — An NLRB Win For Employers? — from Social Media Employment Law Blog
• NLRB, UFCW, and Walmart: A Tail of Two Hours Time — from LaborPains.org
• The reach of the NLRA — from Michigan Employment Law Connection
• Is Federal Labor Law Keeping Unions, Employers from Finding Common Ground? — from Law.com
• NLRB will seek to impose revised union election rules again soon — from The Human Race Horses

photo credit: rustiqueart via photopin cc

Are graduate assistants employees or students?

In Al-Maqablh v. University of Cincinnati College of Medicine (11/5/13), an Ohio federal court answered the question of whether graduate assistants are employees entitled to the protections of Title VII. As with most legal question, the answer depends.

The case concerned the race and national origin claims of a grad student placed on academic probation and ultimately dismissed from the University. Al-Maqablh sought Title VII’s protections as an employee because he “received a paycheck from the University and rendered services to the University by performing extensive research through lab work.” The court, however, disagreed:

Plaintiff received a stipend and/or scholarship after being accepted into the Program. Plaintiff has failed to show that this pay stub was based upon is employment with the University and not a portion of his stipend award. Furthermore, the fact that Plaintiff performed extensive research, as required under the Program, does not make him an employee under Title VII.

Instead, the court looked to the “economic realities” of the relationship between Al-Maqablh and the University to determine whether he was an employee or a student:

Plaintiff participated in the Graduate Program as a student engaging in “courses, seminars and laboratory research during the academic year.” … More importantly, the dominant purpose of Plaintiff’s relationship with the University was educational. Plaintiff’s complaint against the University asserts claims solely related to his academic activities as a graduate student…. [T]he undisputed evidence establishes that the University’s decision to dismiss Plaintiff from the Graduate Program was an academic decision unrelated to Plaintiff’s alleged employment with the University. As such, the undersigned finds that Plaintiff should not be considered an employee under Title VII....

Thus, in this case, the graduate assistant was a student, not an employee. The court made the point, however, that this rule is not universal; the status of a graduate assistant must be analyzed based on the “economic realities” of each individual. If the University had paid Al-Maqablh for his services (as opposed to providing him an academic scholarship), or if the University had dismissed him for an employment reason, as opposed to an academic, reasons, this case likely would have turned out differently.

If you are an educational institution using the services of graduate assistants, do not make this mistake of reading this decision as providing carte blanche to discriminate against graduate assistants (indeed, Title IX would instruct you differently). Instead, understand that these rules are fact specific, and seek legal counsel to guide your actions accordingly.