It's illegal to ask employees to give up overtime payments

If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland security company learned the hard way that employees cannot volunteer to work overtime at less than the required premium rate.

According to Cleveland.com, Citywide Protection Services has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. The comapny’s excuse for not paying overtime? The employees asked.

George Lewandowski, Citywide Protection Services’ president, said he was being characterized as a bad guy when all he had tried to do was help out his employees. Lewandowski said workers kept demanding overtime hours because they needed money.…

“I have a lot of employees who don’t make a lot of money, and they have a lot of kids, so they ask for a lot of extra hours,” he said. “I told them that I really can’t afford to pay all those extra hours, but a lot of them kept begging for hours, just begging for hours.

“I said: ‘I can’t pay the overtime. I’ll let you work at straight time,’” Lewandowski said. “They were aware that I could not pay the overtime—no matter what!”

It does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, you must pay them overtime. Period. No exceptions. Employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all. Otherwise, you might find yourself on the receiving end of a DOL investigation or collective lawsuit, neither of which is an option you want for your business.

WIRTW #316 (the “en francais” edition)

From Mashable:

Employers’ federations and two unions in France signed a “new, legally binding” labor agreement on Thursday that encourages some staff to turn off their phones after 6 p.m., in an effort to curb burnout and promote a healthy work-life balance.

According to the deal, the employees covered under the agreement are not supposed to tend to their work-related emails on their computers or smartphones after the 6 p.m. deadline. The onus lies on employers to ensure that their employees don’t feel the need to work after hours (or pressure them to do so).

The upside? No work emails after 6 pm. The downside? Hundreds of work emails to tend to first thing at 8 am. I think I’ll keep my after-hours email.

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

Discrimination

• Will “Microaggressions” Make Their Way Into Employment Discrimination Cases? Have They Already? — from Dan Schwartz’s Connecticut Employment Law Blog
• 8 reasons your sexual harassment investigation is better than the Clarence Thomas-Anita Hill investigation — from Robin Shea’s Employment and Labor Insider
• Playing golf and having sex are major life activities under the ADA — from Eric Meyer’s Employer Handbook Blog
• Tenth Circuit Denies Review in “Hijab Case” — from Laconic Law Blog
• Interactive process is crucial element of analysis in disability discrimination cases — from Employment Law Matters
• 8th Cir. axes $900K verdict because lawyer told personal law school sex-harassment story at closing — from ABA Journal Daily News
• Ten Best Tips To Stay One Step Ahead Of The EEOC — from Employment Discrimination Report

Social Media & Workplace Technology

• Which Messages Go Viral and Which Ones Don’t — from Harvard Business Review
• We Were Yelpless, Yelpless, Yelpless Yelpless — from The Sociable Lawyer Blog
• Possible porn: Can we search computers? — from Business Management Daily
• Closed vs. Open Social Network ─ What’s the Best Option for Your Company? — from Social Media Strategies Summit Blog

HR & Employee Relations

• Baseball and Work-Life Balance — from DOL’s Work in Progress
• Baseball Star Throws Fans a Work-Life Curveball — from Families and Work Institute Blog
• HBO’s “Silicon Valley” – I’m A Sucker For Shows That Dig Deep Into Work Cultures — from The HR Capitalist, Kris Dunn
• Liars Should Always Be Fired — from Fistful of Talent
• The CEO Must Also Be the Company’s CCO – Chief Culture Officer — from TLNT
• In Battle of Words, Former Netflix Exec Says That Company Defamed Him — from Suits by Suits
• If the NLRB allows employees to telecommute so can you! — from Mike Haberman’s Omega HR Solutions
• Sixth Circuit holds contract clause to arbitrate future claims does not apply to past claims — from Employer Law Report

Wage & Hour

• Why Should Employers Have To Pay Overtime To Employees Who Only Worked Overtime Because They Played Fantasty Football Or Shopped Online During Regular Hours? — from Wage & Hour Defense Blog
• Paid Family Leave: The Next Frontier for National Employers? — from Employment Law Watch
• Does My Employer Have To Pay Earned Sick And Vacation Time When I Leave? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Coming Today: Obama “Equal Pay” Executive Orders — from Phil Miles’s Lawffice Space
• Are The McDonald’s Corporation and Franchise Owners “Joint Employers”? — from Overtime Lawyer Blog
• Employees Can’t Take FMLA Leave for “Potential” Absences in the Future  Jeff Nowak’s FMLA Insights

Labor Relations

• University challenges athlete unionization — from SCOTUSblog
• NFLPA Comes Out In Support Of College Players’ Union — from Deadspin
• Should you stand up to your employer? UPS fires 250 over protest — from Evil HR Lady, Suzanne Lucas
• Can Your Employees Form a Union? — from The Emplawyerologist
• Fifth Circuit Delivers Some Bad News For Employer Confidentiality Policies — from Hunton Employment & Labor Law Perspectives™

6th Circuit sends strong signal to EEOC in affirming dismissal of systemic lawsuit

Last January, a Cleveland federal-court judge dismissed a race discrimination lawsuit brought by the EEOC against Kaplan Higher Learning. In that case, the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. To support its claim, the agency retained an expert witness to rate (i.e, guess) the unknown races of various job applicants based on how they appeared in DMV records. The district court excluded the expert, concluding that his “opinion” was nothing more than guesswork that resulted in inherently unreliable data. With no expert testimony to support its claim, the court dismissed the EEOC’s lawsuit.

Yesterday, in a terse opinion issued a mere 20 days after oral argument, the 6th Circuit affirmed the district court’s dismissal. Here is the entirety of the 6th Circuit’s legal analysis:

We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

This case sends a strong signal to the EEOC that it cannot use junk science to further its agenda of eliminating systemic discrimination. What is so striking of the opinion is the brevity of the Court’s four-line analysis. That the 6th Circuit could make quick work of such an important issue speaks volumes of how little it thought of the EEOC’s litigation strategy.

Yet, the Kaplan case is less about whether credit histories disparately impact African Americans than it is about how the EEOC chose to prove its case. Kaplan did not win this case so much as the EEOC lost it by using junk science to support its claim. Employers should see this case for what it is — a stinging rebuke of the EEOC’s litigation tactics — and nothing more. Employers should not take this case as a license to deploy screening practices that might disparately impact applicants based on race, lest you end up the receiving end of the next EEOC lawsuit.

Has workplace drug testing gone to pot with legalized marijuana?

Late last year, I asked the following question: Can an employer fire an employee who tests positive for legally prescribed marijuana? It appears that employers are indeed struggling with this question. New Jersey transit is the latest employer to be sued as a result of an employee’s use of legal marijuana. NJ.com reports that an employee has sued the transit agency for disability discrimination after it suspended him and sent him into rehab because he is a registered patient with the state’s medical marijuana program.

This case is the latest challenge by an employee who suffered at work through the legal use of marijuana. So far, the employer has won each of these challenges on various legal grounds (see here, here, and here).

Medical marijuana is legal in 20 states plus the District of Columbia. Ohio is not one of these states. Nothing, however, would stop one of your Ohio employees from legally using while on vacation in Colorado, for example. Regardless, marijuana remains illegal under federal law. And, the ADA does not protect employees under the influence of illegal drugs. Thus, I remain confident that you can legally prohibit employees from being under the influence of marijuana while on the job, even if its legally prescribed. As for the lawful use of marijuana by employee outside of work, there is no clear rule of law, even if the cases so far seem to support an employer’s right to regulate. Until the courts sort these issues out, prudent employers should tread carefully and consult with their employment counsel before disciplining or firing any employees who are using legally prescribed marijuana away from work.

Differences of opinion show why we need ENDA

In response to last Tuesday’s post on an Ohio case refusing to protect “sexual orientation” under Ohio’s sex-discrimination laws, EEOC Commissioner (and Twitter friend) Chai Feldblum recommended that I check out a recent decision from the District of Columbia, Terveer v. Billington.

In that case, Peter Terveer, a Library of Congress employee, sued his supervisor for sex discrimination, alleging that the supervisor had created “a hostile environment” by subjecting him to a slew of anti-gay comments.

The employer argued for the dismissal of Terveer’s complaint, since Title VII does not include protections against sexual-orientation discrimination. The court disagreed, and permitted Terveer’s case to proceed under Title VII’s protections from sex discrimination and religious discrimination:

Under Title VII, allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim.… Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes.… 

Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs.” … [P]laintiffs state a claim of religious discrimination in situations where employers have fired or otherwise punished an employee because the employee’s personal activities or status—for example, divorcing or having an extramarital affair—failed to conform to the employer’s religious beliefs.… The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual.

This article at Slate.com argues that Terveer shows that anti-gay job discrimination is already illegal. To the contrary, the more prudent conclusion is that Terveer, when contrasted against Burns v. The Ohio St. Univ. College of Veterinary Medicine (the Ohio case I discussed last Tuesday), demonstrates that different courts can, and do, reach different conclusions on this issue. Instead of showing that anti-gay discrimination is already illegal, these cases illustrate the need to amend Title VII to make it absolutely clear that sexual-orientation discrimination is not only abhorrent, but is also illegal.

It’s okay to “gossip” in the workplace, as long it’s not “negative,” says the NLRB

Earlier this year, I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications.

In Hills & Dales General Hospital [pdf], the NLRB found unlawful (most of) each of the following three provisions of the employer’s “Values and Standards of Behavior Policy.”

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The NLRB concluded that paragraphs 11’s and 21’s prohibitions on “negative comments” and “negativity” are illegal because an employee could reasonably construe those policies “to bar them from discussing with their coworkers com- plaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.”

The NLRB also concluded that paragraph 16’s “requirement that employees ‘represent [the Respondent] in the community in a positive and professional manner’ is just as overbroad and ambiguous.” According to the Board, employees would reasonably view the language “as proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived as ‘positive,’” such as discouraging employees from “engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment.”

There are two points of note from this opinion:

1. There was no allegation that the employer had disciplined or terminated any employee under any of the challenged rules. Nevertheless, the Board concluded that it could still find the work rules facially invalid. Thus, this case serves as a reminder that a policy could be illegal whether or not you act on it; merely having the policy is enough for the NLRB to take action.

2. The NLRB takes no issue with paragraph 21’s prohibition on “gossip.” Indeed, in the underlying ALJ decision, the judge noted that paragraph 21 “would arguably be on solid ground” if limited only to a prohibition on gossip. If workplace gossip is a toxic cause of discontent in your workplace, this case may serve as a signal that a narrowly drafted no-gossip policy may pass scrutiny by the NLRB, as long as you don’t include “negativity” in your prohibition.

WIRTW #314 (the “pale force” edition)

Meet my new best friend, the very funny Jim Gaffigan, pictured with my other best friend (my wife) and me:

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

Discrimination

• 3d Cir. Provides "Temporal Proximity" Retaliation Analysis — from Phil Miles’s Lawffice Space
• Fines To Increase For Failing To Post Notice Of Anti-Discrimination Rights — from HR Law Matters
• “Egregious” Same Sex Harassment Suit Settled By EEOC For Over $2 Million — from Employment Discrimination Report
• Boss seems to be seeking young “dream team”? Be alert for possible age discrimination — from Business Management Daily
• A post about David Crosby, alcohol, and the ADA — from Eric Meyer’s Employer Handbook Blog
• Message to Employers: Stick to your story — from EmployerLINC
• Depressed employee’s vacation leave request did not qualify for FMLA protection — from Employment Law Matters

Social Media & Workplace Technology

• Disgruntled employees mount uprising on Twitter — from Quentin Fottrell at WSJ’s MarketWatch (thanks for the quotes)
• The Founder of Reputation.com Answers Reader Questions — from You’re the Boss Blog
• Mobile content management and BYOD: the Dropbox catch-22 — from Information Age
• Management Monday: Quit Oversharing — from Delaware Employment Law Blog

HR & Employee Relations

• Enforce your dress code without making your employees hate you — from Robin Shea’s Employment and Labor Insider
• Bill Gates on the Future of Employment (It’s Not Pretty) — from Evil HR Lady, Suzanne Lucas
• Germany bans managers from calling or emailing staff after work hours — from InhouseBlog.com
• HR and the Art of Nudgery — from Mike Haberman’s Omega HR Solutions
• It’s Getting Foggy Out There: In The Haze of E-Cigarette Popularity and Regulation, What’s an Employer To Do? — from Employment Law Lookout
• 9 workplace policies your organization should have — from Ragan.com

Wage & Hour

• A tipping point for Baristas — from The Human Race Horses
• Independent Contractor Compliance: What Employers Need to Consider — from TLNT
• FLSA Revisions Won't be Quick or Easy — from Wage & Hour Insights

Labor Relations

• NLRB Finds that not all Whining and Complaining Protected by NLRA — from Pennsylvania Labor and Employment Blog
• Keeping policies legal: Don’t ban employees from talking about pay — from HR Hero Line
• How Would An NCAA Union Actually Work? A Guide For Perplexed Pundits — from Deadspin
• Northwestern NLRB Decision is a Nightmare for University GCs — from In House
• Employee Confidentiality Agreements – Time to review in light of the NLRB’s position being asserted in various cases — from Business, Employment and Real Estate Law in Ohio
• NLRB Charges Keebler Elves and Burritos Equal Big Bucks — from All in a Day’s Work
• Drafting Social Media Policies in 2014 — from Augmented Legality