Gender equality is dead; long live gender equality!

http://flic.kr/p/dLGTi8

I rarely write about active cases I’m handling. In fact, I can only think of one other time that I was mad enough to do so. Today marks time number two. Each involves a galling lack of professional courtesy.

I’m currently in the middle of a contentious piece of litigation in western Pennsylvania. The witnesses, however, are scattered all of the country, including two in Dallas, who I had to go to court to defeat a motion to compel their attendance in PA for their depositions. On Friday, I received a phone call from plaintiff’s counsel (who is in his mid to upper 70s), in which he told me he intended to take their depositions in Dallas this coming Wednesday and Thursday. I responded that even if they could be available on such short notice (they can’t be), I’m unavailable because my wife is traveling those two days for her job and one of us needs to be home with the kids.

His response floored me. He says, “You’re a lawyer. It’s unprofessional for you to plan your schedule around your wife. She should be at home taking care of the kids.”

We don’t live in an Ozzie & Harriet world anymore. Long gone are the days when a wife would be waiting at home to greet her husband with a pair of slipper and a martini while she put dinner on the table. Women work. My wife (who, by the way, gave up her career for 6 years to stay at home with our children) has restarted her career. Her job requires her to travel, which means we share a travel calendar. To make sure that our kids are never abandoned, we clear all travel with the other’s out-of-town schedule before making our own business arrangements.

Readers, please don’t carry this attitude into your business. There is only one unhappy ending to telling one of your employees that his wife, or she, belongs at home with the children. It starts with law- and ends with -suit. Women have the right to work, and neither they, nor their spouses, should be punished for exercising that right, regardless of their chosen profession.

As for which one of us in my tale was acting unprofessionally, I leave that decision up to you.

WIRTW #310 (the “suck it” edition)

Have you heard the one about the daughter who posted on her Facebook page about her dad’s age discrimination settlement with his old company? As it turns out, writing, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT,” violated the confidentiality language in Papa Snay’s settlement agreement, causing him to forfeit an $80,000 settlement payment. Oops.

The following blogs have more on this very interesting story:

• Daughter’s Facebook post costs dad $80k employment settlement — from Eric Meyer’s Employer Handbook Blog
• Facebook “SUCK IT” Costs Dad $80,000 — from Lowering the Bar
• Daughter’s Facebook Post Costs Dad his Settlement — from Phil Miles’s Lawffice Space
• Daughter’s Facebook post costs dad $80,000 — from Internet Cases
• Facebook and confidentiality agreements do not mix — from Michigan Employment Law Connection
• Daughter’s Facebook Post Sink’s Father’s Settlement — from All in a Day’s Work
• Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreements — from Employer Law Report

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

Discrimination

• U.S. Civil Rights Commissioners Take EEOC to Task on Background Checks — from employeescreenIQ Blog
• The A, B, C’s of EEOC — from The Labor Dish
• A $26 million verdict reminds us that ageism is as illegal as the other “isms” — from Sindy Warren
• Employers Be Warned- Look at the Big Picture When Considering Harassment Allegations — from Currents: Hot Topics in Employment Law
• Employer’s quick action bars racial harassment claim — from EmployerLINC
• Employee Who Fails to Return from Vacation Has No Claim of Discriminatory Termination — from The Employment Brief
• Bullying Debate: “Do We Need To Wait For A Law?” — from Employment Discrimination Report
• EEOC: Employer Agrees to Improve Process of Designating Worker as Safety Threat Under ADA — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Privacy is Going to be a Major Employee Concern for the Future — from Blogging4Jobs
• Social Media and Its Impact on the Workplace: What Every Employer Needs To Consider — from Trading Secrets
• The Problem With Corporate Webmail — from The Not-So-So Private Parts
• Before You Send That Scathing Email, Remember the Tale of the Job Bank House Mother — from Evil HR Lady, Suzanne Lucas
• Make BYOD Work: 9 Key Considerations — from InformationWeek

HR & Employee Relations

• Manage Your Work, Manage Your Life — from Harvard Business Review
• Who’s working at home, and is home the proper place? — from Technology for HR
• The Joys of Telecommuting, according to telecommuters — from Families and Work Institute Blog
• Six Rules for terminations: Firing Fast does not mean firing Stupidly! — from Mike Haberman’s Omega HR Solutions
• Becoming Employers of Choice — from SHRM Blog
• Should Background Checks Be On Your New Employee Checklist? — from HR Defense Blog
• Your Job Search and the Fair Credit Reporting Act (FCRA) — from hr bartender

Wage & Hour

• Employer’s Wage Issues with Students on J-1 Visas — from Wage & Hour - Development & Highlights
• Answers to AOL Jobs Reader Questions On Wages and Overtime — from Donna Ballman’s Screw You Guys, I’m Going Home
• FMLA Win for Employers – Employees Can Affirmatively Decline FMLA Leave & Thus FMLA Protections — from The Labor and Employment Law Blog
• Family and Medical Leave, Doctor’s Notes, and Employee Preferences — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Lawyers Look To Unionize At Bloomberg Law — from Above the Law
• UAW to NLRB: Tell Politicians to Stay Out of Our Elections — from Labor & Employment Law Perspectives
• NLRB’s Expedited Election Rule: “A Solution in Search of a Problem” — from TLNT

Read this post before you access your employee’s social media accounts

Susan Fredman Design Group employed Jill Maremont as its Director of Marketing, Public Relations, and E-Commerce. In that capacity, she used her own personal Twitter account and Facebook page to promote SFDG’s business. To keep track of the various social media campaigns she was conducting for SFDG, Maremont created an electronic spreadsheet, on SFDG’s computer and saved on SFDG’s server, in which she stored the passwords for her accounts. It appears that Maremont provided access to, or copies of, the spreadsheet to other SFDG employees to assist in her social media posts on behalf of the company.

Maremont suffered injuries in a serious car accident that kept her out of work. During that time, she claimed that SFDG employees, without her permission, accessed her Facebook and Twitter accounts and posted on her behalf.

In the ensuing lawsuit—Maremont v. Susan Fredman Design Group (N.D. Ill. 3/4/14)—Maremont alleged violations of the Lanham Act (that SFDG unlawfully passed itself off as Maremont), and the Stored Communications Act (that SFDG unlawfully accessed her electronic accounts without her permission). The district court dismissed the Lanham Act claim, but permitted the Stored Communications Act claim to proceed to trial.

Legal intricacies aside, the case is both instructive and troubling.

This case is instructive because it shows the danger when a company fails to brings its social media accounts in-house. Maremont used her personal Facebook and Twitter accounts for her employer. When she was out of the office for an extended period of time, instead of letting its social media presence falter, SFDG used Maremont’s account information to continue posting. How could SFDG have avoided these potential legal traps and an expensive lawsuit? Either by requiring that Maremont use its own social media accounts for official company business, or by having a written agreement with her that it had the right to access her mixed-use personal accounts. The former is cleaner and less risky, but the latter would have still likely kept it out of court, even if mixed-use accounts are harder to untangle at the end of employment.

This case is troubling because it sets the precedent that an employer to which an employee provides passwords to the employee’s social media accounts cannot access those accounts for business purposes. By all appearances, Maremont provided her account information and passwords to her coworkers. SFDG could not have foreseen that it would violate federal law by using them to continue Maremont’s work while she was incapacitated. Yet, that is exactly what happened.

What’s the main takeaway here? If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact.

[Hat tip: Internet Cases]

Following doctor’s orders helps employer win ADA case

Cynthia Horn worked for Knight Facilities Management as a janitor. Sometime in 2010, she developed a sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day. When that limitation failed to abate Horn’s symptoms, her doctor modified the restrictions to “no exposure to cleaning solutions.”

As a result, Knight Facilities fired Horn. It concluded that there was no work available to accommodate her restrictions, because the chemicals were airborne and merely working in the building resulted in exposure. Management spoke to Horn’s union rep, on Horn’s behalf, to try to find a solution before firing her, but none could be found. Notably, Knight Facilities refused to allow Horn to use a respirator, concluding that its use did not meet Horn’s restriction and, even if it did, it would cause an undue hardship because Knight Facilities would have to buy respirators for all of the other janitors.

In Horn v. Knight Facilities Management-GM, Inc. (2/25/14), the 6th Circuit affirmed the district court’s dismissal of Horn’s disability discrimination claim. In determining whether the employer could reasonable accommodate Horn’s disability, the court started, and ended, with the limitation imposed by Horn’s doctor—“no exposure to cleaning solutions.” Horn claimed that the company either should have: (1) eliminated restrooms on her cleaning route, or (2) provided her a respirator. The court disagreed:

We find that neither proposed accommodation is objectively reasonable because they both fail to comply with the physician-mandated restriction of “no exposure to cleaning solutions.” Eliminating the bathrooms on Horn’s route or assigning her to a new route without bathrooms are not reasonable accommodations because it is undisputed that Horn’s job still would have involved exposure to cleaning chemicals. Likewise, there is no evidence that working with a respirator would have complied….

Her restriction was “No exposure to Cleaning Solutions” and that would include using or touching cleaning solutions. And while Horn asserts that a respirator could have eliminated or significantly reduced her respiratory exposure, she provides no actual evidence to support this statement, much less evidence showing that a respirator would have prevented all exposure. Horn’s personal belief that she could handle cleaning solutions as long as she was wearing a respirator is irrelevant.

While the ADA requires that you engage a disabled employee in the interactive process, as Horn illustrates, the employee’s specific medical limitations can dictate the boundaries of that interactive process and the scope of the accommodations you have to consider offering. If you legitimately cannot make an accommodation that meets the employee’s limitations, then the employee is not “qualified” under the ADA, and therefore unprotected by that law.

When are preliminary and postliminary compensable? Supremes to let us know (maybe).

Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

“What does this mean,” you ask? In Busk, the plaintiffs claimed their employer illegally failed to compensate them for the time they spent passing through a required security check at the end of each shift. According to the plaintiffs, employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. They claimed that the checks were “necessary to the employer’s task of minimizing ‘shrinkage’ or loss of product from warehouse theft.”

The FLSA, as amended by the Portal-to-Portal Act, generally, precludes compensation for activities that are activities that are preliminary or postliminary to the employees’ principal activities. Preliminary and postliminary activities—those that are “integral and indispensable” to an employee’s principal activities—are compensable. To be “integral and indispensable,” an activity both must be (1) necessary to the principal work performed and (2) done for the benefit of the employer.

In Busk, the court concluded that the plaintiffs had sufficiently alleged that the security clearances were necessary to their primary work as warehouse employees and done for their employer’s benefit. Therefore, the district court erred in dismissing the wage-and-hour claim.

This  case is the second in as many years that the Supreme Court will hear on this issue. Earlier this year, in Sandifer v. U.S. Steel, the Court concluded that the time employees spent donning (putting on) and doffing (taking off) their protective gear was not compensable under their collective bargaining agreement.

There are lots of other examples of preliminary of postliminary activities that could be occurring in your workplaces besides putting on and taking off protective gear, or security screenings. For example, your employees might spend time logging on to their computers before their work days officially begin. Or they might spend time at the end of their shifts transitioning to the next shift. I am hopeful that Busk will provide employers needed guidance on the compensability of these activities. Stay tuned!

NLRB looks to expand reach with latest enforcement priorities

Late last month, the new NLRB General Counsel, Richard Griffin, published a memo (GC 14-01) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that  will be an enforcement priority for the agency moving forward.

Of particular note, the memo lists the following two issues:

• Cases involving the applicability of Weingarten principles in non-unionized settings.

• Cases that involve the issue of whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard.

Why are these two issues important to employers? Because they show that the NLRB continues to look for ways to expand its reach beyond the traditional union/management setting. As I’ve been arguing for years, the NLRB is looking for ways to become relevant to the 93 percent of employees not covered by a collective bargaining agreement. The Board has cornered the market on social media cases, and is now expanding its reach to other issues—the rights of non-union employees to representation in disciplinary meetings, and email solicitation rules.

It is clear that it is going to be an interesting three years under the current iteration of the NLRB. Employers should expect movement on these two issues. Stay tuned.

WIRTW #309 (the “Hello, and welcome to Moviefone” edition)

Before there was Google or Fandango, there was Moviefone. Growing up, if we wanted to go to the movies, we didn’t have the luxury of iPhones or the Internet. But, we had 777-FILM, the ubiquitous (and free) telephone service that would tell us what movie was playing when and where. Now, of course, we have Fandango and iPhones, and, quite frankly, I’m surprised Moviefone’s telephone service lasted as long as it did. So, with a nostalgic tear, this week we bid adieu to Moviefone’s 25-year-old telephone service. At least we’ll always have Kramer:

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

Discrimination

• U.S. Commission On Civil Rights Blast EEOC’s Background Check Guidance As “Deeply Flawed” — from EEOC Year-End Countdown
• EEOC Charge Data and Chart FY2013 — from Phil Miles’s Lawffice Space
• The Ultimate Bait and Switch? Female Job Applicant Who Claims She Was Forced to Perform Sexual Favors as Part of “Application Process” has no Title VII Claim Because the Job she was “Applying for” Did Not Exist — from The Blue Ink
• EEOC Plucks Another Low Hanging Fruit – Hospital Settles With Fired Epileptic Doctor For $215,000 — from Employment Discrimination Report
• 7th Circuit Upholds Summary Judgment Finding No Adverse Employment Action When Employee Merely Anticipated Transfer That Never Materialized — from Wisconsin Employment & Labor Law Blog
• Mohawks in the workplace aren’t gay. Stupid, but not gay. — from Eric Meyer’s The Employer Handbook Blog
• How do you train you managers on harassment/discrimination? — from Warren & Associates Blog

Social Media & Workplace Technology

• How Can We Keep Our Law Firm’s Systems Safe in a BYOD World? — from Attorney at Work
• Clio survey reveals iPhone, iPad popularity among small law firms — from iPhone J.D.
• We now spend more time using smartphones than surfing the web on PCs — from Engadget Mobile
• Can A Facebook Status Update Violate A Non-Compete? — from InhouseBlog.com
• Got a “Secret”? Firewalls Are Not Stopping Spread Of Social Media  — from Dan Schwartz’s Connecticut Employment Law Blog
• Dammit, Jim! I’m an HR pro, not a social media guru! — from The Human Race Horses

HR & Employee Relations

• 5 reasons why you shouldn’t work too hard — from Washington Post’s She the People Blog
• 6 Tips to Help You Avoid Employee Lawsuits — from The Evil HR Lady, Suzanne Lucas
• Miami Dolphins’ culture sure didn’t help in Incognito situation — from Robin Shea’s Employment and Labor Insider
• Pass ‘em on: Two short videos about workplace bullying and the Healthy Workplace Bill — from Minding the Workplace
• New Trade Secrets Study by PwC and CREATEe.org — from Fair Competition Law
• Knocking Out A Trade Secret Claim—Your Own If You Are Not Careful — from Trade Secrets and Noncompete Blog
• Should Employees Get Dressed Down For Not Dressing Up? — from Workplace Diva
• Does “at-will employment” really mean what you think? — from HR Hero Line
• Will The Reason For My Termination Turn Up In A Background Check? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• Tales from the Business of Wage and Hour Litigation — from Walter Olson’s Overlawyered
• Employees Seek To Take Bite From Apple (and Urban Outfitters) — from Employment Class Action Blog
• Fifth Circuit Affirms FLSA Summary Judgment Based On “Complete Lack Of Evidence” Of Off-the-Clock Work — from Wage and Hour Law Update
• Don’t Play Fast and Loose with FMLA rights! — from Employer Law Report

Labor Relations

• Volkswagen Workers Vote Against UAW Representation; UAW Challenges Result — from Hunton Employment & Labor Law Perspectives™
• NLRB announces April 10 and 11 public meeting on proposed amendments to representation-case procedures​ — from Labor Relations Institute