If you don't want anti-bullying legislation, give me a “Hell Yeah!”

Bullying in the workplace isn’t illegal, unless it’s bullying because of some protected characteristic (sex, race, etc.). Yet, just because something is legal doesn’t mean it should be condoned.

According to Today’s General Counsel (citing the Workplace Bullying Institute’s 2014 US Workplace Bullying Survey [pdf]), an astounding 72% of employees report that their employers have not done anything to curb bullying in the workplace.

The quickest way to ensure that generalized workplace bullying becomes illegal is for employers to continue to ignore it. If employees continued to report that they are being bullied, and that their employers are not doing anything to stop it, legislatures will step in and pass anti-bullying laws.

So, what should you do? Treat bullying like it’s illegal. Create a workplace culture in which bullying is not permitted to occur.

• Include bullying in your anti-harassment or other workplace conduct policies.
• Train your employees about how you don't allow bullying, and what to do (i.e., how to report) incidents of bullying. 
• When an employee complains about bullying, don’t ignore it, investigate it. 
• After the investigation, implement corrective actions, commensurate with the severity of the conduct, to reasonably insure that it does not reoccur.

You might think it’s okay to ignore bullying in your workplace because there is no law against it, but legislatures won’t. They will fill the void with laws that you will not like (and, if the Workplace Bullying Institute’s survey is anywhere close to accurate, 72% is a big void). Do right by your employees. Do not give legislatures any reason to pass over-reaching laws that will hamper your ability to manage your employees.

Heed these words, which I wrote all the way back in 2011:

Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack incentive to act preventively and responsively. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.

Or, to put it in simpler terms, do the right thing, or the government will eventually make you.

Social-cultural discrimination does not equal race discrimination

Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions [pdf], the answer is no.

CMS maintained the following policy, which it interpreted to prohibit employees from wearing dreadlocks:

All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines … hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

The EEOC claimed race discrimination following CMS’s rescission of a job offer after a job applicant refused to cut her dreadlocks. The court, however, disagreed, dismissing the EEOC’s lawsuit. The court made a key distinction between immutable, protected characteristics (such as race) and mutable, unprotected characteristics (such as hairstyle):

It has long been settled that employers’ grooming policies are outside the purview of Title VII…. The EEOC asserts that the policy itself was discriminatory because it was interpreted to prohibit dreadlocks, which is a hairstyle. Title VII prohibits discrimination on the basis of immutable characteristics, such as race, sex, color, or national origin. A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic….

The court also refused to take the EEOC’s bait to equate culture to race:

According to the EEOC, the definition of race should encompass both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group. But as the defendant points out, to define race by non-unique cultural characteristics could lead to absurd results. For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites. Moreover, culture and race are two distinct concepts….

Title VII does not protect against discrimination based on traits, even a trait that has a socio-cultural racial significance.

I’ve discussed dreadlock discrimination before, but in the context of religious discrimination. In this context, the court got this case 100% correct. Dreadlocks are not a “black” thing. Heck, if you saw any of the photos of 2011’s Occupy Wall Street movement, I can guarantee that you saw lots of photos of white folks with dreadlocks. Nevertheless, this case serves a good reminder that grooming policies remain high on the EEOC’s radar, even if they raise much more of an issue for national origin and religion than race.

Sexual-orientation discrimination ban to become law

My apologies if the headline baited you in, but today is April Fools’ Day, and, no, neither Congress nor Ohio’s legislature is close to amending any workplace discrimination laws to include sexual orientation as a protected class.

But, they very much need to.

I read with great interest a series of opinion pieces in last week’s New York Times, entitled, If Gays Can Marry and Be Fired for Doing So. Among the authors was EEOC Commissioner (and Twitter friend) Chai Feldblum, who argued that marriage equality laws demonstrate that Title VII already protects sexual-orientation discrimination as sex discrimination. On Twitter, I asked Chai if, in light of her op-ed, she believes that we do not need to amend Title VII expressly to include sexual orientation. Her response?

We still need (a strong) ENDA for clarity & certainty. MT @jonhyman: Does this mean you don’t think we need ENDA? http://t.co/HgtvN2ksk3
— Chai Feldblum (@chaifeldblum) March 25, 2014

If you need any greater reminder of the need for the Employment Nondiscrimination Act (ENDA), which would amend Title VII to include sexual orientation and gender identity, look no further than Burns v. The Ohio St. Univ. College of Veterinary Medicine, decided last week by an Ohio appellate court. That case dismissed a claim by a lesbian veterinary resident because Ohio’s workplace discrimination laws do not cover “sexual orientation.”

Each appellate district in this state that has considered such a claim has concluded that the term “sex” in R.C. 4112.02(A) does not include sexual orientation.… Likewise, courts analyzing the analogous provision of Title VII have held that, for purposes of that law, “sex” does not include sexual orientation.…

In this appeal, appellant unabashedly argues for a change in the law. However, this claim and this court are not the forum for achieving the change that appellant seeks.… Legislative measures proposing to amend R.C. Chapter 4112 and Title VII to add the term “sexual orientation” have been, as yet, unsuccessful.… Under our system of separation of powers, this court’s role is limited to interpreting and applying R.C. Chapter 4112 as it currently exists.

Readers, now is the time to end sexual orientation and gender identity in the workplace. It is foolish that we, as a supposedly enlightened society, cannot decide that it’s not okay to discriminate. Let’s end this foolish practice, and send a signal to all of our citizens that we truly are the land of the free and the home of the brave.

What Ben Franklin teaches us about employment law (the #SCOTUS edition)

Some people head to the beach for Spring Break. I head to Philadelphia. An extended school break for my kids provides a good opportunity to visit my family. Plus, we have had a German daughter in our house since August (a 10th grade exchange student), and we promised her that we’d show her some good old fashioned American history.

In walking around Old City, is becomes very apparent that Philly is Ben Franklin’s city.

Among Franklin’s pithy quotes, his most memorable might be, “In this world nothing can be said to be certain, except death and taxes.”

Last week, the U.S. Supreme Court reminded us of this fact in United States v. Quality Stores [pdf]. The issue in the case was whether severance payments made by an employer to an employee are “wages” for purposes of FICA’s payroll tax. The Court unanimously ruled that severance payments are “wages” subject to FICA, reversing the 6th Circuit. IF you are looking for a more detailed analysis of the Court’s reasoning, head over to SCOTUSblog.

This decision seems to be common sense. If, however, you had previously been following the reversed ruling of the 6th Circuit, you need to change your practices and start withholding FICA’s payroll taxes from the severance payments you make to employees. There are lots of radars on which you, as an employer, do not want to appear. As certain as Mr. Franklin was about death and taxes, I am certain that the IRS’s radar tops that list.

WIRTW #313 (the “March madness” edition)

Yesterday, I shared my thoughts on the NLRB’s historic (yet preliminary) ruling on scholarship student athletes as employees. I argued that treating these students as employees could require their employer (the university) to pay them overtime. What other unintended results could this ruling have?

• As one of my Twitter friends asked, will these students have to pay income tax on the value of their scholarships?
• Will injured athletes be entitled to FMLA leave?
• What about reasonable accommodations for injured athletes under the ADA?
• Or what about health insurance coverage under the ACA’s mandate?
• Will recruiting practices be scrutinized for disparate impact?

As you can see, this case asks more questions than it provides answers. The only answer I do know is that the NLRB kicked a hornet’s nest, and it is going to take years for the swarm to settle itself.

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

Discrimination

• Spiderweb Delivery? Is One Year Enough for a Leave of Absence for a Disabled Employee? — from Dan Schwartz’s Connecticut Employment Law Blog
• Accommodations For Pregnant Employees: When Laboring Means More Than Just Hard Work — from Employment Essentials
• Prompt remedial action beats harassment claim — from Warren & Associates Blog
• Should Stuttering Be Classified As A Disability? — from Employment Discrimination Report
• Obesity is a Disability? — from The Blue Ink
• Supreme Court Hears ACA Contraceptive Mandate Cases — from The Employment Brief

Social Media & Workplace Technology

• Facebook reports 1 billion active users on mobile devices and 200 million users on Instagram — from The Verge
• Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations — from Socially Aware Blog
• Plaintiff-employee destroys Facebook posts about her case; court destroys her — from Eric Meyer’s The Employer Handbook Blog
• Think before you delete that Facebook post — from Evil HR Lady
• Social Privacy: Workplace Myth Or Reality? — from TalentCulture
• 5 Employment Law Considerations in “The Cloud” — from Technology Company Counselor

HR & Employee Relations

• Why Likability Matters More at Work — from the Wall Street Journal
• 10 Easy Rules for Background Checks in Hiring — from Robin Shea’s Employment & Labor Insider
• Why you should document when the decision was made! — from Mike Haberman’s Omega HR Solutions
• Can I Just Quit and Claim Constructive Discharge? — from Phil Miles’s Lawffice Space
• Trends in Parental Leave: Looking Abroad, Looking Ahead — from ERC Insights Blog
• Do You Have Employment Practices Liability Insurance? — from The Emplawyerologist

Wage & Hour

• McDonald’s Employees: Not Lovin’ It — from The L•E•Jer
• How Will Expansion of Overtime Eligibility Impact Small Business? — from GMS Blog
• Employees Can’t Take FMLA Leave for “Potential” Absences in the Future — from Jeff Nowak’s FMLA Insights
• Make sure employee is clear about your system for running and counting FMLA leave — from Business Management Daily

Labor Relations

• If you are a CHRO – this should be keeping you (and your people) awake at night — from The Human Race Horses
• Lessons from the NLRB’s Social Media Decisions for BYOD Policies — from Blogging4Jobs
• NLRB Expands Scope of Employer Solicitation of Grievances as Unlawful Coercive Conduct — from Management Memo

The wage-and-hour implications of the NLRB’s Northwestern football player ruling

By now you’ve likely heard that yesterday a regional director of the National Labor Relations Board ruled that Northwestern University’s scholarship athletes are “employees” of the university covered by, and entitled to organize under, the National Labor Relations Act. Labor Relations Today has one of the best summaries and analysis of the opinion I’ve read.

Before everyone starts forecasting the end of college athletics, we need to the remember that this opinion is only the opinion of one person. This case is far from over. Northwestern has already said that it will appeal to the full NLRB in Washington. No matter the result there, the losing party will appeal again to the 7th Circuit. Ultimately, the Supreme Court may weigh in. In other words, this case is years from a resolution. In the meantime, however, expect more petitions to be filed by other groups of athletes at other universities seeking to organize.

The implications of this story, however, go beyond labor unions and the NLRA. If student athletes are “employees” under the NLRA, it is not that much of a stretch for a court to conclude that they are also employees under other federal statutes, like the FLSA. If the FLSA covers college athletes, they are entitled to be paid at least the minimum wage, plus overtime for any hours worked more than 40 in a week. To calculate their regular rate of pay, one would prorate the value of their scholarships over the number of weeks “worked,” and then again by the number of hours worked in each week.

The universities will have arguments. Are their football programs exempt as seasonal? Are the student athletes exempt as creative professionals? These arguments, however, are a stretch. I believe there is a serious risk that if scholarship athletes are “employees” (and that remains a big if), then they are likely owed minimum wage and overtime. In other words, the Northwestern case has huge implications beyond collective bargaining.

This story will continue to evolve over the next many years, and I will keep you updated throughout its twists and turns.

"Motorboating" = $567K harassment verdict

A Galveston, Texas, jury has awarded $567,000 in damages to a former deputy constable who claimed sexual harassment by his former boss. The catch is that the harasser is female and the victim is male.

James Gist claimed that his former boss, Pam Matranga, gave him unwanted lap dances and forced him to “motorboat” her by placing her shirt over his head and holding his face against her breasts.

For her part, Matranga did not deny that she let employees put their heads under her shirt. The Daily Mail quotes her testimony: “If anybody was in a bad mood, like if Phil was in a bad mood, I would say, ‘Phil,’ or to anyone, ‘Do you need to go under the shirt?’ She also claimed, however, that she never asked Gist to go “under the shirt” because he thought it was “creepy.” Clearly, the jury did not believe her.

This case illustrates two important points:

1. Harassment is harassment, whether its a male-on-female, or female-on-male. As long as the harassment is “because of sex,” it’s illegal. Employers that ignore a female harassing a male employee, or don’t take it seriously because “men can handle it,” do so at their own risk. 
2. When complaining of harassment, it can be enough for an employee to complain to the manager/harasser. In this case, one of the employer’s chief defenses is that Gist never complained to management. Gist admitted that he did not complain because he feared retaliation, but that he did tell Matranga that her behavior made him uncomfortable and for her to stop. The court found that sufficient. As Eric Meyer recently pointed out on his Employer Handbook blog, an employee whose only complaint to management about harassment is to the harasser himself (or herself) may be enough to satisfy the employee’s required internal complaint.  If complaining to the harasser is sufficient, employers need to be extra vigilant in spotting harassment, and stepping in each time something seems amiss in the workplace, with or without the receipt of a complaint.