WIRTW #299 (the “Yuletide confessions” edition)

I have confession to make. I’m a Jew who loves Christmas. I knew it from an early age. We’d leave temple on a December Friday night and swing by a few streets on the way home to check out the lights. I loved going to Feeney’s garden center in Feasterville, PA, to see the decorated trees and Christmas displays. Some of my best childhood memories are riding the bus downtown with my Grandmom Annie to see the Christmas Light Show at Wanamaker’s and the Enchanted Colonial Village at Lit Brothers. And, I couldn’t wait for A Charlie Brown Christmas and Rudolph the Red-Nosed Reindeer to air each year.

Now, I am part of an interfaith family, in which we celebrate both Hanukkah and Christmas. I’m so proud of my seven-year-old daughter, who, earlier this week, visited with her old first-grade teacher to share the story of Hanukkah with this year’s batch of first graders.

Despite my Jewish roots, I jokingly say I am 13 in Christmas years, since this the 13th Christmas my wife and I have spent together. And, For the record, despite my religiously diverse family, and despite Jon Stewart’s opposition of the “War on Christmas,” I am not opposed to people wishing others a “Merry Christmas.”

So, pick your poison: Merry Christmas, Happy (belated) Hanukkah, Happy Kwanzaa, or Happy Holidays. Whichever you choose, have a joy-filled December.

Here’s the rest of what I read the last two weeks:

Discrimination

• “Weight” Of Authority Leads To Denial Of Employer’s Summary Judgment Motion In Hotly Contested EEOC Pregnancy Discrimination Lawsuit — from EEOC Year-End Countdown
• Pregnancy isn't a workplace disability, but how about morning sickness? — from Eric Meyer’s The Employer Handbook Blog
• When employee has difficult pregnancy, don’t get creative with FMLA, ADA — from Business Management Daily
• Employee Who Was Repeatedly Sniffed by Co-Workers and Fired For Swatting a Fly May Bring Retaliation Claim — from The Employment Brief
• Employee Discrimination on a Genetic Level — from Corporate Counsel
• Termination of employee for entering alcohol rehab after a last chance agreement not necessarily a violation of the ADA — from Employment Law Matters
• Appellate Court Upholds Summary Judgment for Employer — from Dan Schwartz’s Connecticut Employment Law Blog
• Take Two? EEOC Moves For Reconsideration After Losing High-Profile Religious Discrimination Case Over Abercrombie’s “Look Policy” — from EEOC Year-End Countdown

Social Media & Workplace Technology

• “Using Social Media to Discriminate”: Please Read the Fine Print — from Currents: Hot Topics in Employment Law
• Email, Twitter and the always-on lifestyle: Today’s double-edged sword — from Boy Genius Report
• Cyber Monday is Here - 54% of Workers to Shop Online at Work this Season — from Phil Miles’ Lawffice Space
• With a Few Clicks of the Mouse You Can Uncover What Job Applicants Leave Off Their Resumes — from Employment Law Lookout
• How BYOD Can Really Help to Change the Way You Hire — from TLNT
• BYOD Policy and Best Practices for When Employees Leave — from i-Sight Investigation Software Blog
• How Corporations are Responding to BYOD  — from Social Media Strategies Summit Blog

HR & Employee Relations

• Children’s Books Helped Shape the American Workplace, Says the DOL — from HR Daily Advisor
• Reining in the costs of the U.S. litigation system — from PointOfLaw Forum
• What Your Employees Steal May Be Used Against You In a Court of Law — from Molly DiBianca’s Delaware Employment Law Blog
• Incivility… The Signs Aren’t Always Obvious — from Fistful of Talent
• Happy Birthday to the FACTA! The Often Forgotten Law that Imposes Obligations and Provides Helpful — from Employer Law Report

Wage & Hour

• Seventh Circuit Finds Insurance Company’s Internal “Answer Man” Proper Classified as Exempt Administrative Employee — from Wage and Hour Law Update
• New York Federal District Court Endorses Use of Fluctuating Workweek Overtime Payment Method Where Employer Pays Performance-Based Bonuses to Non-Exempt Salaried Employees — from Employment Matters Blog
• Pending Legislation Alert: FLSA Notices On Worker Classifications — from Mike Haberman’s Omega HR Solutions
• Are Your Employees Properly Classified Under the FLSA? — from The Emplawyerologist
• ERISA & The Affordable Care Act: A Primer — from The L•E•Jer

Labor Relations

• “Americanized Labor Policy Is Spreading in Europe” — from Overlawyered
• Walmart Should Have Listened To Me About Firing Striking Workers — from Donna Ballman’s Screw You Guys, I’m Going Home
• No Solicitation / No Distribution Policies Must be Applied Evenly — from Matt Austin Labor Law
• Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration — from Wyatt Employment Law Report
• NLRB's GC Determines That Employees Must Expressly Invoke Their Right to Access Employer Property When They are Part of a Larger Group — from Vorys on Labor

When an extended leave of absence is NOT a reasonable accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the EEOC says that hard-capped leave of absence policies violate the ADA. For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s the harm in providing a few extra weeks of unpaid leave?

Attiogbe-Tay v. SE Rolling Hills LLC (D. Minn. 11/7/13) provides hope to employers that under the right circumstances, an employer can refuse to extend an unpaid leave of absence without violating the ADA.

Attiogbe-Tay worked the night shift at a senior living facility (The Colony) as a Licensed Practical Nurse, caring for 160 assisted living patients. Her job description required her kneel, squat, and be able to lift more than 100 pounds. As the only LPN working the night shift, she would have to lift patients if they fell, sometimes with help from other staff members.

Following years of knee pain resulting from degenerative joint disease and arthritis, Attiogbe-Tay elected to have knee replacement surgery, for which her employer granted her 12 weeks of FMLA leave. She returned to work at the end of the 12 weeks with a note from her doctor clearing her to work, but restricting her for six weeks to no kneeling, squatting, or lifting more than 50 pounds. The company’s employee handbook provides: “If medical restrictions exist at the end of the leave, the company will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.” Instead of discussing potential reasonable accommodations with Attiogbe-Tay, her employer fired her.

In her disability discrimination lawsuit, Attiogbe-Tay argued that the company should have reasonably accommodated her by extending her leave for six additional weeks until her restrictions expired. The court, however, disagreed, concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of this case it posed an undue hardship on the employer:

Here, Attiogbe-Tay was the only overnight LPN on duty. To cover Attiogbe-Tay’s shifts during her twelve-week FMLA leave, The Colony paid other nurses on its staff overtime and employed temporary LPNs from a staffing agency…. The Colony also bore considerable expense—$8,000 in additional staffing costs—as a result of Attiogbe-Tay’s twelve-week FMLA leave. Given The Colony’s relatively small staff size, its concerns over the quality of resident care, and the negative effects on its budget and staff, no reasonable jury could decline to find that the extended leave was an undue hardship…. As a result, Attiogbe-Tay was not qualified to perform the essential functions of the LPN position either with or without reasonable accommodations, and summary judgment is warranted.

Given the handbook violation by the employer, I’m surprised it won summary judgment. Nevertheless, this case illustrates that in the right circumstances, an employer can deny granting an extended medical leave without violating the ADA.

If you are planning on denying an unpaid leave as a reasonable accommodation, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation to extend a leave of absence as a reasonable accommodation:

• The cost of the accommodation.
• The employer’s overall size, number, composition, structure, and functions  of employees, and the financial resources.
• The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources, and operations.
• The relationship of the facility in question to the overall operations of the employer.

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.