Deterring the wage-and-hour scofflaw

The New York Times reported late last week that a Manhattan Domino’s Pizza franchisee has settled a wage-and-hour class action lawsuit for $1.28 million.

Sixty-one delivery drivers alleged that managers told them that they would only be paid for 40 hours per week, no matter how many hours they worked. The drivers alleged that they often worked more than 40 hours in a week, sometimes as many as 65. The awards range from $61,300 to $400 per delivery person, depending on length of employment.

I suppose cases like this one shouldn’t stun me, but they still do. I’m appalled that employers, in 2014, remain ignorant about, or, worse, deliberately ignore, their obligations under the wage-and-hour laws. And, I’m not talking about the law’s minutia, like payment for travel time, or calculating an overtime rates on performance bonuses. I’m taking about the basics, such as you have to pay overtime to non-exempt employees who work more than 40 hours in a week.

Some argue that stories like this one illustrate that we need tougher wage-and-hour laws to deter employers from stealing wages from their employees. I think the laws are tough enough. $1.28 million is a tough nut for any business to swallow. Instead, we need education. For the ignorant, we need to teach them about the FLSA and its complex web of requirements. For the scofflaws, we need to continue to publicize cases like the Domino’s Pizza settlement in the hope that they get the message. The laws we have are more than sufficient to protect employees’ wages, provided we do our share to secure compliance.

Is regular attendance an essential job function when an employee asks for time off from work?

I’ve written before about the need for employers to handle with care an employee’s request for unpaid time off as a reasonable accommodation under the ADA. And, I’ve also written about the hard line the EEOC has taken against hard-capped leave of absence policies.

All is not lost, however, for an employer who needs to deny a leave of absence to a sick or injured employee, provided that the circumstances are right and the requests is handled correctly.

To be eligible for protection under the ADA, an employee must be a “qualified” individual with a disability. “Qualified” means that the employee must be able to perform the essential functions of the job with, or without out, a reasonable accommodation. If regular attendance is a bona fide essential function of the job, than an employee who needs a leaves of absence as his or her only accommodation will not be “qualified,”
entitling an employer to deny the accommodation request.

“Isn’t regular attendance essential to every job,” you ask? Unfortunately, in the context of the ADA, the answer is “no.”

Attendance may be an essential function of a job, provided that the circumstances warrant such a finding.

• Is an organization sufficiently staffed such that an employee’s job functions can be performed in his or her absence?
• Will the employer sustain added overtime costs as a result of an employee’s absence?
• Will the employer have to hire substitute employee(s) to cover for the absent employee?
• Does a written job description list attendance as an essential function?
• Does the employer have formal policies providing for leaves of absence, or otherwise have a history of granting leaves to employees?

In other words, does the proposed accommodation impose an unreasonable and undue hardship on the employer? If the answer is yes, then attendance is an essential function, and a leave of absence cannot be a reasonable accommodation.

The Southern District of Indiana recently examined this issue in EEOC v. AT&T Corp. In that case, AT&T denied a leave of absence to an employee, Lupe Cardona, needing time off for Hepatitis-C treatments. AT&T argued that regular attendance was an essential function of the employee’s job as a customer service specialist. The court disagreed, and concluded that a jury should make the ultimate determination:

1. The only evidence AT&T submitted in support of its argument that attendance was an essential function of the job was the disciplinary notices it provided to Cardona for her absences.
2. The job description for Cardona’s position failed to list attendance as an essential function.
3. AT&T maintains 22 different leave-of-absence plans, which belies its claim that attendance is an essential function.

As the court pointed out in AT&T, “regular attendance is important in any job.” Important, however, does not always equate to essential. The bona fides must support the claim. Given the hard line the EEOC has drawn against the rote denial of leaves of absence as an ADA accommodation, employers should make a careful determination before denying a leave of absence as a reasonable accommodation. You might be able to support the decision based on attendance as a reasonable accommodation, but, as the AT&T case illustrates, you must have the facts to support your decision.

WIRTW #306 (the “donning and doffing” edition)

Earlier this week, the U.S. Supreme Court issued its first employment decision of 2014, Sandifer v. U.S. Steel [pdf], which held that the time employees spent donning (putting on) and doffing (taking off) their protective gear is not compensable under their collective bargaining agreement by operation of section 203(o) of the Fair Labor Standards Act. For background on Sandifer, see my coverage of last October’s oral argument. For more on section 203(o) of the Fair Labor Standards Act, see my coverage of a 2010 6th Circuit opinion, which Sandifer reversed. For more on the Sandifer opinion, see the following from my blogging brethren:

• Opinion analysis: “Clothes” are items commonly regarded as articles of dress — from SCOTUSblog
• SCOTUS resolves one unclarity of federal wage and hour law — from Walter Olson’s Overlawyered
• Donning, Doffing and “Changing Clothes”: Supreme Court Says When Employees Get Paid — from Dan Schwartz’s Connecticut Employment Law Blog
• The Supreme Court on FLSA, donning, doffing, and Daft Punk! — from Eric Meyer’s The Employer Handbook Blog
• Supreme Court Defines “Changing Clothes” under Section 203(o) of the FLSA — from Minnesota Employment Law Report
• What the Supreme Court’s Decision on Donning and Doffing DOES NOT MEAN! — from Jonathan Segal
• SCOTUS: No pay for time spent donning and doffing protective gear — from Ross Runkel Report

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

Discrimination

• The EEOC and “English-Only” Policies in the Workplace — from Wisconsin Employment & Labor Law Blog
• Five employer lessons from ADAAA “temporary injury” decision — from Robin Shea’s Employment and Labor Insider
• The EEOC Has A Cow, And Now Must Raise Its Beef On Appeal — from Workplace Class Action Litigation
• Retaliation 201 – you can’t retaliate against someone associated with a person who engaged in protected activity — from Warren & Associates Blog
• Interactive Process is a Must — from The Blue Ink
• Maintaining a religious-neutral workplace — from EmployerLINC
• “Men Who Seduce Like Cavemen” – Sexual Harassment The Way It Was In The US 50 Years Ago — from Employment Discrimination Report
• Dear Evil Skippy: How Long Do We Have To Ignore My Co-Worker’s Obvious Pregnancy? — from Evil Skippy at Work

Social Media & Workplace Technology

• This microsite is one endless, creepy conference call — from The Verge
• Time to Log Off? Take Care When Crafting Workplace Internet Policies — from TLNT

HR & Employee Relations

• Employers Should Have a Bill of Rights — from Evil HR Lady, Suzanne Lucas
• Are You a Co-Employer? — from The Emplawyerologist
• Judges Fuerst and Joseph Russo Join Judges O’Donnell and McMonagle on Cuyahoga CP Commercial Docket — from Cleveland Law Library Weblog
• Fired for What!? - Farting While Singing — from Lawffice Space
• On Entitlement, Regardless Of Your Generation — from Shankman Blog
• Send a non-compete demand letter – buy yourself a lawsuit? — from Trade Secrets & Non-Compete Blog

Wage & Hour

• Students Are Now Employees? OSHA Issues Citations to Vocational Rehabilitation Center for Alleged Safety Violations — from Employment Law Lookout
• Court Makes A U-Turn and Decertifies Class At Trial — from The Wage and Hour Litigation Blog
• A Minimum-Wage Hike Could Help Employers, Too — from Harvard Business Review
• Hours Worked: To Suffer or Permit…. Who Talks Like That? — from Michigan Employment Law

Labor Relations

• Is College Football “Work”? Employment Law Worldview
• Northwestern Football Players File Representation Petition with the NLRB — from Workplace Prof Blog
• NLRB Rescinds “Quickie Election” Rules, But New Election Rules Could be Issued Later This Year — from Labor Relations Today

Eliminating Mad-Men workplace policies #SOTU

During Tuesday’s State of the Union Address, President Obama handed down the following edict:

It’s time to do away with workplace policies that belong in a “Mad Men” episode.

He’s correct. His comment was directed at a commitment to expanding equal-wage and family-leave laws. However, this statement is as much about workplace culture as it is about workplace laws. After all, the FMLA is a floor, not a ceiling.

Coincidentally, the morning after the SOTU, I came across the following post, written by Mary Wright at Blogging4Jobs.com: Build a Culture of Workplace Flexibility. In that post, Mary makes the argument for creating a culture of workplace flexibility, built around these seven tent-poles:

1. Choices in managing time
2. Flex time and flex place
3. Reduced time
4. Time off
5. Flex careers
6. Dealing with overwork
7. Supervisor and coworker support

I’ve been thinking a lot about this issue this week, as my wife has been out of town on a business trip, making me a single dad, solely responsible to get kids to and from school and to attend to two snow days. The practice of law isn’t always conducive to parenthood. Yet, this week I’ve been in the office less than I would otherwise like to be, taking advantage of remote network access from home and the comforts of shifting some work until after the kids are asleep. It’s not easy, and it’s not ideal, but for me, it works, and I appreciate the flexibility. Do the same for your workers, if and when you can. Trust me, they will they appreciate it. Even better, you will keep quality workers engaged and employed, which is a win-win for everyone.

A lesson on union avoidance

Last week, the Department of Labor’s Bureau of Labor Statistics published its annual report of union membership. Private-sector union membership remains steady, at approximately 6.7 percent, which, as Cleveland.com points out, is a marginal increase from the prior year. Nevertheless, and perhaps emboldened by a favorable ear at the NLRB, labor unions have become more active in trying to organize workers. Even the players on Northwestern University’s football team are trying to organize.

Do you know what to do if a labor union comes knocking at your door? Do you know what you can say to your employees if you hear the whispers of unionization floating through your workplace?

More importantly, do you know what you cannot say to your employees about labor unions and their organizing efforts? Take, for example, Phillips 66 (1/15/14) [pdf], in which the NLRB recently concluded that the employer unlawfully interrogated an employee when a supervisor asked him, “What’s your opinion of this union thing?”

Interrogation is one of the four cardinal sins of employer opposition of labor unions. The other three? threats, promises, and spying. The four are easy to remember. They spell the well-used acronym TIPS (Threats, Interrogation, Promises, Spying).

PolicyMic recently published an internal Wal-Mart slide deck (hat tip: The HR Capitalist), which discusses the TIPS strategy in detail. Wal-Mart uses these slides to train its managers and supervisors on the right way, and the wrong way, to respond to union organizing.

PolicyMic took Wal-Mart to task for “encouraging managers into repeating anti-union talking points.” To the contrary, I applaud Wal-Mart for being proactive in ensuring that its managers know what they can, and cannot, say about unions, and for implementing a tactical, measured, and lawful response to union organizing.

Your managers and supervisors are your front-line defense against unions. They will hear the scuttlebutt among the employees. They will know whether your employees are happy and content, or dissatisfied and eager for change. They will be the ones to whom your employees communicate via your Open Door Policy (you have an Open Door Policy, right?) when they have a gripe or concern? And, they will be your mouthpiece to communicate to your employees your lawful corporate stance on labor unions, and the impact a union will have on your workplace.

The Wal-Mart slide deck is a great starting point for you to formulate and communicate your corporate philosophy and message on labor unions. Your friendly neighborhood labor and employment lawyer (nudge, nudge) is another. The point, however, is to have your strategy in place before a union comes knocking. Once the union starts talking to employees, your anti-union torpedo better be in the tube and ready to fire. Otherwise, you might just find yourself at the bargaining table discussing that first collective bargaining agreement.

For more on my ideas on strategic union avoidance, head over to a post I wrote all the way back in 2009, Adopt the TEAM approach to fight unions, or check out Chapter 8 in my book on workplace laws, The Employer Bill of Rights, which covers this topic in much greater detail.

Are temporary impairments ADA-protected disabilities? You bet.

When Congress amended the ADA in 2009, it’s goal was to bring the statute back to its original intent — the protection of the legitimately disabled from suffering discrimination in the workplace.
Suppose an employee suffers a serious injury to his legs that prevents the employee from walking and restricts him to a wheelchair, but with surgery and lots of physical therapy the employee will regain the us of his legs at some point in the future. Is this employee “disabled” under the ADA? More specifically, if the employer refuses even to consider any reasonable accommodation that will permit the injured employee to return to work, and instead fires the employee, has the employer violated the ADA?

According to the 4th Circuit’s decision late last week in Summers v. Altarum Institute, the answer is a resounding “yes.”

The EEOC’s decision to define disability to include severe temporary impairments entirely accords with the purpose of the amended Act. The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits. The EEOC’s interpretation — that the ADAAA may encompass temporary disabilities — advances this goal. Moreover, extending coverage to temporarily impaired employees produces consequences less “dramatic” than Altarum seems to envision. Prohibiting employers from discriminating against temporarily disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.…

In sum, nothing about the ADAAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions. Because Summers alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment “substantially limited” his ability to walk.

Employers should not hold out hope that other circuits will interpret the ADAAA’s application to temporary impairments differently. The 4th Circuit is one of the more notoriously conservative circuits. More employee-friendly circuits (our 6th Circuit, for example) should have little difficulty reaching the same conclusion.

The takeaway for employers is no different from that which I have been cautioning for years. Disability discrimination cases will no longer focus on whether an employee is legally “disabled,” and instead will focus on whether an employer engaged the employee in the interactive process towards a reasonable accommodation. If you focus on the former and ignore the latter, as Summers illustrates, you will be fighting a severely uphill battle in defending your actions in court.

[Hat tip: Workplace Prof Blog and Eric Meyer’s Employer Handbook Blog]

High praise for The Employer Bill of Rights

It’s always nice for someone to post a five-star review of your book on Amazon, but it’s even nicer when one of the most well-respected and insightful HR bloggers writes an entire column singing your book’s praises.

Suzanne Lucas (otherwise known as the Evil HR Lady), at Inc.com, wrote a review of The Employer Bill of Rights that made me blush. Thank you, Suzanne, for such kind words:

If you want to make sure you avoid getting [sued] in the first place, I highly recommend not only getting an employment lawyer, but reading Hyman’s book. It will give you the information you need to make better choices regarding your employees and your business.

I couldn’t agree more. For those who’ve yet to find my tome, it’s available at the following:

• Amazon (paperback and Kindle)
• Apple’s iBooks
• Barnes and Noble (paperback and Nook)
• Apress (my publisher — eBook)

I’ll be back tomorrow with new information to help keep from getting sued, discussing how one court just ruled that the ADA covers temporary impairments.