EEOC claims retaliation over garden-variety severance terms

The EEOC announced that it has filed a lawsuit against CVS, claiming that a severance agreement it provided to three employees unlawfully restricted their rights to file discrimination charges or communicate and cooperate with the EEOC.

The EEOC claims that “CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print.”

What was the “fine print” that caused the EEOC to sue this employer? The EEOC did not specify in its news release, but the complaint the EEOC filed  took issue with the following provisions:

1. A cooperation clause, which required the employees to notify CVS’s general counsel upon receipt of, among other things, an administrative complaint.

2. A non-disparagement clause, which prohibited the employees from making any statements that disparage or harm CVS’s reputation. (I told you I don’t like these provisions.)

3. A confidentiality clause, which prohibited the employee from disclosing any personnel information.

4. A general release, which included any claims of discrimination.

5. A covenant not to sue, which prohibited the employee from filing any complaints, actions, lawsuits, or proceedings against CVS, but which expressly carved out the employee’s right to participate in, or cooperate with, any state or federal discrimination proceeding or investigation.

6. An attorneys’ fees provision, which required the employee to reimburse CVS for its reasonable attorneys’ fees incurred as the result of a breach of the agreement by the employee.

According to EEOC Regional Attorney John Hendrickson, the lead litigator in the case:

Charges and communication with employees play a critical role in the EEOC’s enforcement process because they inform the agency of employer practices that might violate the law. For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make.

This case has the potential to be very significant, and warrants monitoring. Most (all?) of you reading this post have used agreements that contain language similar to each of the six issues the EEOC is challenging. If the EEOC is successful in this lawsuit, employers will have to reconsider key provisions in their severance and settlement agreements. Given that employers are paying ex-employees for certainty when an employee signs a release, this case has the potential to turn these agreements on their heads.

In tomorrow’s post, I will offer a potential solution for employer looking to maintain the vitality of a general release and covenant not to sue without walking into the EEOC’s enforcement crosshairs.

Another one bites the dust: NLRB invalidates confidentiality policy

If I’ve said it once, I’ve said it a thousand times — employers cannot maintain policies that restrict their employees’ ability to talk about how much they earn.

Thus, it shouldn’t surprise anyone that, in MCPc, Inc. (2/6/14) [pdf], the NLRB concluded that the following policy illegally restricted employees’ rights to engage in protected concerted activity:

Dissemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination.

As the NLRB pointed out, the standard isn’t whether the policy actually restricted employees from discussing wages or other terms and conditions of employment with their coworkers, but whether they would reasonably construe the policy to have that effect. Never mind that in MCPc, Inc., the employer fired an employee for discussing with co-workers staffing shortages that resulted from a perception of high executive salaries.

You can draft a confidentiality policy that will not run afoul of protected-concerted-activity rights under the NLRA; you just have to draft narrowly. Thus, limiting discussion of trade secrets and other confidential, proprietary information is just fine. Wages and other terms and conditions of employment, however, are off limits, which should be clear from the policy. And, of course, don’t fire an employee for talking about wages or working conditions. I wonder how the NLRB would have even learned about MCPc’s overly broad policy if the company hadn’t fired a worker for violating it?

WIRTW #307 (the “Piet Mondrian” edition)

Today’s theme is a lesson in minimalism.

Here’s what I read this week:

Discrimination

• Fired For Reporting Dollar Bill With Swastikas And Noose On A “Blackened” George Washington Leads To Jury Award — from Employment Discrimination Report
• Do Managers Have a Bias For Hiring Attractive People? — from TLNT
• Employee claims discrimination, then her friend gets fired. Is that retaliation? — from Eric Meyer’s The Employer Handbook Blog
• An Employee Took Documents from her Employer to Support her Discrimination Claim and You Won’t Believe what Happened Next — from Toil and Trouble
• If men and women work the same number of hours, what is so unfair? — from Evil HR Lady, Suzanne Lucas
• EEOC Seeks Reversal of “Cherry Picked” Decision Regarding Criminal and Credit Checks — from All in a Day’s Work
• Employee acts as own lawyer? You’ll need to be patient — from Business Management Daily

Social Media & Workplace Technology

• Pass Along to Your Employees: Passwords to Avoid — from HR Daily Advisor
• She “tweeted” what?! — from EmployerLINC

HR & Employee Relations

• Are You One Cold (Or Super Bowl Flu) Away From Being Fired? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Dazed and Confused About Medical Marijuana in the Workplace? Dude, It’s Just Starting — from Dan Schwartz’s Connecticut Employment Law Blog
• “But I’m a Whistleblower!”: Is an Employee Who Takes Confidential Documents Invincible? — from Trading Secrets
• Terminating an “At-Will” Employee: A Free Ride or Potential Time Bomb? — from CPEhr
• Why we need to take more time off from work — from Ragan.com
• my boss seems annoyed when I stay home every time it snows — from Ask a Manager
• Workplace Investigations — Dealing with the Aftermath — from WinWinHR

Wage & Hour

• Read this if you don’t want to overpay your salaried employees — from HR idiot
• Paid Sick Leave: Is it Worth it to Businesses? — from WSJ.com Law Blog
• FLSA Exemptions are about DUTIES not Titles — from Mike Haberman’s Omega HR Solutions
• A refresher on the breastfeeding at work rules — from Warren & Associates Blog

Labor Relations

• Super Bowl Ad Calls for Employee Rights Against Union Abuse — from LaborPains.org
• College Athletes to Unionize? More on the Northwestern University Football Players NLRB Petition — from Labor Relations Today
• They’re Ba-ack: NRLB to Re-Propose Election Regulations — from Labor Relations Update
• NLRB Proposes Amendments to Election Rules — from Phil Miles’s Lawffice Space
• Breaking: #NLRB posts new quickie election rules — from The Human Race Horses
• NLRB Proposed New/Old Election Rules — from Workplace Prof Blog

Proposed ambush election rules offer the best reason to be proactive about union avoidance

Last week I suggested that a pro-union NLRB has emboldened labor unions into more aggressive organizing efforts. You need not look any further than yesterday’s news that the NLRB has reissued its ambush-election rules.

According to the Wall Street Journal, the median time between the filing of a representation petition by employees, and the NLRB holding an election in a contested organizing campaign, is 59 days. The NLRB’s proposed rules would cut that time by more than half, to a lightning-quick 25 days or less.

Make no mistake, this proposal is primarily designed to help labor unions win elections. Often, an employer does not know that a labor union is attempting to organize until after the representation petition is filed. By that point, the union and its organizers have already planted the seeds of employer discontent with workers, leaving the employer to play catch-up. The quicker the election period, the less time the employer has to spread its message. Thus, these rules, if they take effect, will be a big win for labor unions.

There are two things you can do, right now, to protect yourself.

1. The NLRB is taking comments until April 7 on these proposed rules. Write to your Senator. Write to your Congressman. Talk to your trade and business organizations. Compel anyone you can to take a stand against these rules and hope for a more reasonable outcome.

2. Heed my call from last week to take steps now to formulate, and communicate to your employees, your corporate message on labor unions. The importance of having your strategy in place before a union comes knocking will be even more important if these new election rules take hold.

I (don’t) “like” this protected concerted activity

Last October, in Bland v. Roberts, the 4th Circuit held that a Facebook “like” qualifies as speech protected by the First Amendment. As we know, however, the First Amendment does not apply to private workplaces, in which employees do not enjoy constitutional free speech rights. Employees do, however, enjoy the right to talk among themselves about wages, hours, and other terms and conditions of employment—concerted activity protected by the National Labor Relations Act.

Soon, the NLRB will decide whether an employee clicking the “like” button on another employee’s Facebook post or comment is sufficient to qualify as protected concerted activity.

In Triple Play Sports Bar [pdf] (h/t: Wall Street Journal Morning Risk Report), an Administrative Law Judge

Spinella’s selecting the “Like” option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity. Spinella’s selecting the “Like” option, so that the words “Vincent VinnyCenz Spinella…like[s] this” appeared on the account, constituted, in the context of Facebook communications, an assent to the comments being made, and a meaningful contribution to the discussion. [T]he Board has never parsed the participation of individual employees in otherwise concerted conversations, or deemed the protections of Section 7 to be contingent upon their level of engagement or enthusiasm. Indeed, so long as the topic is related to the employment relationship and group action, only a “speaker and a listener” is required.

As much as it pains me, the ALJ’s reasoning is sound. Speech is speech, whether it’s engaging in an oral conversation, writing a comment to a Facebook post, or clicking “Like.” Liking something on Facebook is akin to an endorsement of, or agreement with, the comment liked.

To paraphrase what I wrote when commenting on the the Bland v. Roberts decision, protected concerted activity rights likely extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. I would expect the NLRB to agree with the ALJ when it announces its decision later this year. In the meantime, employers need to take heed before taking action based on these online activities.

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.