WIRTW #312 (the “overtime” edition)

Earlier this week, I reported on the White House call for the Department of Labor to “fix” the overtime regulations for exempt employees. Here’s what some of my fellow blawgers had to say on this issue:

• What Mr. Obama’s call for new overtime rules means to you — from Mike Haberman’s Omega HR Solutions
• White House Aims to Give More Workers Overtime Pay — from Corporate Counsel
• Mr. President, You want to fix overtime? Good, but please fix it all! — from Michigan Employment Law
• Overtime scheme more dangerous to economy than minimum wage hike — from Overlawyered
• Obama Proposes New Overtime Regs — from Phil Miles’s Lawffice Space

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

Discrimination

• The “N-Word” – “Still A Problem In The American Workplace” — from Employment Discrimination Report
• “Protected class” and the 6th circuit — from Michigan Employment Law Connection
• Is it unreasonable to tell your boss to stop sexually harassing you? — from Eric Meyer’s The Employer Handbook Blog
• ADA: What to do when employee won’t cooperate — from Business Management Daily
• Is the EEOC the New VOGUE? Technical Assistance Publications on Religious Dress and Grooming Released — from All in a Day’s Work
• EEOC Sues Nursing Home, Says It Should Have Accommodated Ill Worker by Shorter Workday — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Do You use Social Media to Recruit? — from The L•E•Jer
• More From The #Jury Box: The Latest on Juries and Social Media — from Augmented Legality
• Why No Wi-Fi? New Workplace Sensitivity Issue to Worry About — from HR Daily Advisor
• BYOD Growth and Midsize Firms — from Midsize Insider

HR & Employee Relations

• The Joy of SOX: What employee activity is "protected"? — from Robin Shea’s Employment and Labor Insider
• Do You Self-Censor At Work? — from Lifehacker
• How to stop bullying in the workplace — from Evil HR Lady, Suzanne Lucas
• Breaking Bad Habits: If Your Resolutions Are Slipping Away — from Ohio Family Law Blog
• How to Have Friends at Work When You’re the Boss — from Harvard Business Review

Wage & Hour

• Up is Down and Outside is Inside? With FMLA, Not Quite Common Sense — from Connecticut Employment Law Blog

Labor Relations

• NLRB files petition for rehearing in D.R. Horton (class arbitration) case — from ADR Prof Blog
• Suit Claims UAW/VW Neutrality Agreement Violates LMRA — from Labor Relations Today
• NLRB continues quest to expand its authority — from EmployerLINC

What a slick union-avoidance campaign looks like

If you’re a $72 billion company that happens to be staunchly anti-union, and money is no object in the education of your employees about how and why the cons of a labor union will undermine the pros of your company and its culture, this is what you get.

Gawker has published Target’s 14-minute employee training video, entitled, “Think Hard: Protect Your Signature.” It espouses the benefits of Target’s open-door and other HR policies, while warning employees about the risks of signing a union authorization card. The video is worth your time (but watch soon, before the inevitable cease-and-desist).

You, however, don’t need billions of dollars of revenue to craft a slick, YouTube-able union avoidance message. You can deliver the same themes in a conference room, with someone (like your friendly neighborhood labor lawyer) talking to your workers. For example, take a look at my post from earlier this year, A Lesson on Union Avoidance, which discusses Wal-Mart’s more low-tech approach, and how you can incorporate some of its themes in your communications to your employees.

The point, however, regardless of the delivery you choose, is to have a message to deliver. It’s part of what I call the TEAM approach to union avoidance:

     Train supervisors
     Educate employees
     Accessibility
     Modernize policies

Understanding that union avoidance starts as soon as an employee walks in your door about applying for a job, and not as soon as a labor union approaches your employees about signing authorization cards, is the first step in honing the right strategy that will keep your company union free.

Lactation at work requires reasonableness on both sides

Photo by Joelk75, via Flickr, cc

Both of my children were formula-fed. It wasn’t for lack of lactation effort. We (or, more accurately, she) tried to feed each naturally. My daughter’s birth followed 72 hours of awful labor, from which we were not sure my wife was going to make it (that’s a story for another day), and my son just did not want to eat. So for reasons that made perfect sense to us, we fed both exclusively by formula. The “lactation specialists” at the hospitals were not happy with us, and they let us know all about it. What they failed to do, however, was talk to us. It was a one-sided conversation, which failed.

In Ames v. Nationwide Mutual Ins. (8th Cir. 3/13/14), Angela Ames claimed that Nationwide discriminated against her because of her sex and pregnancy by not providing her access to a room in which to lactate. We know that lactation discrimination equates to pregnancy discrimination, and yet, in Ames, Nationwide won. Why?

Nationwide won because it had a lactation policy that provided employees reasonable access to a private room to express milk, and because Ames refused to even consider an accommodation when a room was temporarily unavailable.

Nationwide’s lactation policy allowed employees to gain badge access to its lactation rooms after completing certain paperwork that required three days processing. Even though Ames had not completed the required paperwork, the company nurse requested for her immediate access to a lactation room. While the company was processing the request, the nurse suggested that Ames use one of the company’s wellness room, which would become available in 15 or 20 minutes. In tears, Ames quit her job and sued.

The court explained its reasoning for affirming the trial court’s dismissal of Ames’s sex and pregnancy claims:

Ames was denied immediate access to a lactation room only because she had not completed the paperwork to gain badge access. Every nursing mother was required to complete the same paperwork and was subjected to the same three-day waiting period. Further, Hallberg [the nurse] tried to accommodate Ames by allowing her to use a wellness room as soon as it was available and by requesting that Ames receive expedited access to the lactation rooms.… That Nationwide’s policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.

The moral of this story is that evidence of open conversations with your employees about accommodations wins lawsuits. Nationwide won because it tried to work with Ames to find a temporary solution to her problem. Ames lost because she refused to be reasonable under the circumstances. Conflict requires a give-and-take, not a give-and-give. As long as an employer can show equal enforcement of policies, coupled with an effort to work with an employee, most lawsuits will resolve in the employer’s favor. The lactation folks at the hospitals refused to work with us, and they lost their battle. Nationwide tried to work with Ames, and, because she refused, it won their lawsuit. Let this case be a lesson to you, not only in dealing with the unique needs of lactating employees, but in resolving all conflict within the workplace.

Examining the low standard for adverse actions in retaliation claims

Mark Laster worked as a Public Safety Officer/Emergency Officer for the Kalamazoo Department of Public Safety for more than 23 years. After complaining to his superiors that the department was treating him differently because of his race, he alleged that he was denied training opportunities and privileges, singled out for violating at least two department policies that were selectively enforced against him, and disciplined more harshly than his peers for identical violations. 

The district court, however, dismissed Laster’s Title VII retaliation claim, concluding that none of the challenged actions were materially adverse sufficient to support a claim of retaliation. 

The 6th Circuit disagreed. Laster v. City of Kalamazoo (3/13/14) hi-lights the low standard for establishing an “adverse action” to support a retaliation claim:

Plaintiff’s burden of establishing a materially adverse employment action is “less onerous in the retaliation context than in the anti-discrimination context.” … “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … “This more liberal definition permits actions not materially adverse for purposes of an anti-discrimination claim to qualify as such in the retaliation context.”

Thus, the 6th Circuit concluded that the trial court had erred by dismissing Laster’s retaliation claim:

Facing heightened scrutiny, receiving frequent reprimands for breaking selectively enforced policies, being disciplined more harshly than similarly situated peers, and forced to attend a pre-determination hearing based on unfounded allegations of wrongdoing might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. There is a genuine issue of fact regarding whether or not Plaintiff was subject to materially adverse action, and whether Plaintiff’s protected activity was the cause of such action.

By way of contrast, the 6th Circuit also concluded that the same set of facts could not legally support Laster’s constructive discharge claim under Title VII, because of the higher “adverse action” standard under a Title VII disparate treatment claim.

What does all this legal jargon mean from a practical standpoint? It means that when an employee complains about discrimination, or otherwise engages in protected conduct, you must treat that employee with kid gloves. Any action you take against that employee, which one could view as reasonably dissuading any employees from engaging in other protected conduct, will likely be “adverse” under Title VII’s anti-retaliation protections.

Employees who complain aren’t bulletproof, and you can still discipline or terminate a worthy employee, even on the heals of complaint about discrimination or other protected conduct. You must, however, tread very carefully, and make sure that all your i’s are dotted and t’s are crossed, because even the slightest misstep could ring the retaliation bell.

A call for the DOL to fix what is wrong with our wage-and-hour laws

Last week, President Obama called upon the Secretary of Labor to “modernize and streamline the existing overtime regulations.” According to the President, the “regulations regarding exemptions from the Act’s overtime requirement, particularly for executive, administrative, and professional employees (often referred to as ‘white collar’ exemptions) have not kept up with our modern economy. Because these regulations are outdated, millions of Americans lack the protections of overtime and even the right to the minimum wage.”

I could not agree more with the President that the FLSA’s regulations are outdated. In fact, I’ve been calling for a streamlining of the FLSA for nearly three years:

Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

President Obama, Secretary of Labor Perez, and members of Congress, take this opportunity to do something historic and write wage-and-hour legislation and regulations that make sense for 2014. Don’t just increase the current salary level from the current $455 per week to qualify for the white-collar exemptions. That change will do nothing more than create new classes of non-exempt workers. Employers won’t start paying them overtime; instead they will figure out how to limit their hours worked to keep that wages the same.

Instead, use this Presidential call-to-action as an opportunity to examine the entire legislative and regulatory scheme that dictates how employees are paid in this county. You will not help guarantee workers a fair wage putting a band aid on a much bigger problem. The FLSA needs to be scrapped and rebuilt from scratch. Otherwise, you will leave in place in system that is confusing for employers to meet their compliance obligations, which, at the end of the day, is unfair for employers and employees.

WIRTW #311 (the “bossy” edition)

Earlier this week Facebook COO Sheryl Sandberg launched BanBossy.com. She believes that “bossy” is to aspiring female leaders as the n-word is to African-Americans. Sandberg argues that banning people from calling young women bossy will help give them the confidence to lead when they are older.

What a bunch of bunk. You know what will give young women the confidence to lead? Providing them opportunities to lead. How about we focus more on the percentage of female leaders at Fortune 500 companies (a paltry 16.9% of corporate board members, 14.6% of Executive Officer positions, and 4.6% of CEOs) instead of the words we choose to call those who might some day aspire to bridge that gap?

Words are just words. Banning them, no matter how offensive they might be, doesn’t change the underlying thoughts and the resulting behavior. Do you know what happens when you ban a word like “nigger?” People who are inclined to say it think it instead. Banning a word doesn’t end bigotry, it just takes it underground. Banning “bossy” won’t increase opportunities for women just like banning the N-word won’t end racism.

We should all agree that increasing opportunities for women in the workplace is a worthy goal. We are kidding ourselves, however, if we believe that banning a word will help achieve it.

For more critiques of Sandberg’s “Ban Bossy” campaign, see:

• Sheryl Sandberg Is Bossy. So What? — from CareerDiva
• Sheryl Sandberg wrong on “bossy” ban — from CNN
• Recline, don’t “Lean In” (Why I hate Sheryl Sandberg) — from The Washington Post’s She The People

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

Discrimination

• The dilemma of writing your own EEOC position statement — from HR Hero Line
• The EEOC and the FTC Publish Documents Related to Background Checks — from All in a Day’s Work
• EEOC and FTC Tips on Background Checks — from Phil Miles’s Lawffice Space
• Sex Workers Can Sue Their Bosses For Sexual Harassment: An Exchange — from Employment Discrimination Report
• Protecting the Unemployed — from The L•E•Jer
• Beard discrimination? Not really. — from Michigan Employment Law Connection
• Amazing Race Contestants File Employment Discrimination Lawsuit — from Atlanta Employment Lawyer Blog
• Is Sexual Harassment Against Contract Employees Legal? — from Donna Ballman’s Screw You Guys, I’m Going Home

Social Media & Workplace Technology

• On the 25th anniversary of the web, let’s keep it free and open — from The Official Google Blog
• Game On! Are You Ready To Have Fun At Work? — from Employment Essentials
• So, you want to adopt BYOD? — from TiPb
• Your Next Job Application Could Be Via Smartphone — from Mashable
• Should You Separate “Personal Life” on Your Enterprise Network? — from Blogging4Jobs
• EMPLOYEES: Keeping your settlement confidential is easy, so do it! — from Robin Shea’s Employment & Labor Insider

HR & Employee Relations

• Can I Be Funny at Work Without Ruining My Reputation? — from Lifehacker
• Can we ask applicants about their driving records? — from Business Management Daily
• 5 essential steps for vetting job candidates’ credentials — from MonsterThinking
• Additional Restrictions on Employer’s Use of Criminal History Checks — from The Labor and Employment Law Blog
• Creating a Loving Workplace — from Joe’s HR and Benefits Blog
• Why You Should Eliminate Your Paid Time Off Policies — from Fistful of Talent
• Workplace investigation alert: Don’t interrogate your employees — from Warren & Associates Blog
• New York Times Article on Employer Interrogations of Employees — from Wisconsin Employment & Labor Law Blog

Wage & Hour

• Obama Proposes Changes to White Collar Overtime Exemptions — from Dan Schwartz’s Connecticut Employment Law Blog
• Overtime Expansion Coming? — from Manpower Employment Blawg
• In-House Counsel: Review Your Company’s Security Check Process — from In House
• Telecommuting: Good for Morale, Bad for Legal Exposure — from Corporate Counsel
• Hi Ho Hi Ho, it’s Off to Work We Go. — from Michigan Employment Law
• The DOL, Law Students, and Internships — from Workplace Prof Blog
• FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave — from Eric Meyer’s The Employer Handbook Blog
• 12-Month Period Under FMLA — from Workplace Insights

Labor Relations

• Union Faces NLRB Charge for Alleged Rape Threat — from LaborPains.org
• NLRB General Counsel Makes it Clear: He Has an Aggressive Agenda — from TLNT
• UAW’s Election Objections At VW Take An Interesting Turn — from Vorys on Labor
• Volkswagen v. Auto Workers Round 2 — from Labor Relations Institute

EEOC holds public meeting on social media in the workplace #socialEEOC

Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline A. Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

.#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC
— EEOC.gov (@EEOCNews) March 12, 2014

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

• Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
• Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.

The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.

How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws.