WIRTW #319 (the “photocopier” edition)

Do you want to lose credibility, either as a lawyer or a witness? Spend seven minutes during a deposition arguing over the meaning of “photocopier.” Watch this video from The New York Times, which is a dramatic retelling of a deposition from a case decided by the Ohio Supreme Court in 2012.

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

Discrimination

• Sixth Circuit and Essential Functions — from Workplace Prof Blog
• Do you have a Donald Sterling in your midst? — from Next Blog
• The EEOC’s $2 Million Same Sex Workplace Decision — from Blogging4Jobs
• Telecommuting as reasonable accommodation? Sure, but not in this case — from Robin Shea’s Employment and Labor Insider
• Michigan Employers Must Consider Telecommuting as a Reasonable Accommodation — from Michigan Employment Law Advisor
• EEOC v. Ford Accelerates Telecommuting Issues — from Corporate Counsel
• Employee Allergic To Service Dog At Work: Rights In Conflict — from Employment Discrimination Report

Social Media & Workplace Technology

• Dumb Bosses and Camera Phones - Not a Good Mix for your Company — from Michigan Employment Law Advisor
• 7 Ways Twitter has Changed Over the Years — from Social Media Strategies Summit Blog
• Job hunting? Take a closer look at your Facebook page — from Evil HR Lady
• How Private is Private Browsing? — from Ride The Lightning
• Jurors’ Private Social Media Is Off Limits, ABA Tells Lawyers — from WSJ.com: Law Blog

HR & Employee Relations

• Employee committed firing offense? Terminate ASAP–or else prepare for court — from Business Management Daily
• Swift Investigation of Sterling-Clippers Discrimination Incident Well Played — from i-Sight Investigation Software Blog
• 7 signs it’s time to hire in-house HR — from MonsterThinking
• Apple and Google will settle no-poaching conspiracy lawsuit — from Boy Genius Report
• Are FCRA Class Actions A New Form Of Wage & Hour Lawsuits? — from Workplace Class Action Litigation

Wage & Hour

• Why a Quarter of Americans Don’t Trust Their Employers — from Harvard Business Review
• Senate Confirms Controversial New Wage and Hour Administrator — from TLNT
• My Salaried Employee Has No PTO But Needs Time Off—What Can I Do? — from HR Daily Advisor
• Buffalo Jills Boo Bosses but Lawsuit Raises Question: Are NFL Cheerleaders “Employees” Protected by Minimum Wage Laws? — from Suits by Suits
• I’m an Executive, You’re an Executive, We’re All Executives! 8th Circuit Lowers the Bar for FLSA “Executive” Exemption — from Wage & Hour Insights
• Exotic Dancers - Employees or Independent Contractors? — from Phil Miles’s Lawffice Space

Labor Relations

• Social Media Policies — ALJ Disregards Guidance From NLRB General Counsel — from HR Defense Blog
• NLRB Will Consider the Northwestern Football Player Ruling — from All in a Day’s Work
• What employees say on social media may be protected speech — from MonsterThinking
• ALJ strikes social media policy disclaimer for work-related speech — from Eric Meyer’s The Employer Handbook Blog

With workplace social media, don’t be like Nero

Legend tells us that Nero sat and played his fiddle while Rome, the capital of his empire, burned. Sadly, according to a recent survey, Social Media in the Workplace Around the World 3.0 [pdf], many employers are taking the same approach with their employees’ use of social media.

81% of employers surveyed report that they foresee the misuse of social media by employees becoming more of any issue in the future. Yet, only 53% have updated their social media policies in the past year, and only 37.5% provide employees any training on the appropriate use of social media. Meanwhile, 71% report having to take disciplinary action against employees for social-media misuse (more than double the number from 2012).

What do these numbers mean? Employers are not proactively getting out in front of a known problem.

Social media changes with the blink of an eye. Two years ago, many had never even heard of Twitter; now it boasts more than a billion registrants. New social sites debut at a lightning pace. Employers need flexible, changeable policies to adapt to these evolving technologies. Moreover, a policy is not worth the paper on which it’s printed unless you also provide meaningful, common-sense training to your employees.

It’s great news that employers perceive social media as a workplace problem that’s not going away. It’s disheartening, however, that so many are choosing to do nothing about it.

Your corporate message against discrimination must start at the top

By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

This story teaches an important lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render it safe. You need to decide what kind of company you want to be, and set the tone all the time. Then, when any employee (including the CEO or owner) is accused of racism, sexism, or any other illegal -ism, employees will have confidence that your company will arrest the offending behavior quickly and severely.

Kudos to the NBA for taking swift action against Sterling. Your business likely does not require the same type of pubic response made by the NBA. However, the NBA’s swift and decisive action tells all of its employees that racism has no place in its league.

What does an appropriate corporate response to this level of intolerance look like? Here are some of the comments of NBA Commissioner Adam Silver (via USA Today):

The views expressed by Mr. Sterling are deeply offensive and harmful; that they came from an NBA owner only heightens the damage and my personal outrage.

Sentiments of this kind are contrary to the principles of inclusion and respect that form the foundation of our diverse, multicultural and multiethnic league.

I am personally distraught that the views expressed by Mr. Sterling came from within an institution that has historically taken such a leadership role in matters of race relations and caused current and former players, coaches, fans and partners of the NBA to question their very association with the league.

To them, and pioneers of the game like Earl Lloyd, Chuck Cooper, Sweetwater Clifton, the great Bill Russell, and particularly Magic Johnson, I apologize.… This has been a painful moment for all members of the NBA family. I appreciate the support and understanding of our players during this process, and I am particularly grateful for the leadership shown by Coach Doc Rivers, Union President Chris Paul and Mayor Kevin Johnson of Sacramento, who has been acting as the players’ representative in this matter.

We stand together in condemning Mr. Sterling’s views. They simply have no place in the NBA.

No good comes from asking medical-related questions during interviews

Sjöstrand v. The Ohio St. Univ. (6th Cir. 4/28/14) [pdf] is an ADA case, but not an employment case. It involves a graduate school applicant claiming that OSU denied her admission because of her Crohn’s disease. In support of her claim, Sjöstrand pointed to her admission interview, during which she claimed each interviewer spent about half of their time discussing her Crohn’s disease. She claimed that because she tied for the highest GPA in the applicant pool, and her GRE scores exceeded the school’s requirements, her disability was the only rational explanation for her rejection.

The 6th Circuit reversed the trial court’s dismissal of Sjöstrand’s ADA claim:

Yet according to Sjöstrand’s testimony … neither of her interviewers even mentioned any of the putative reasons why her application was rejected, and each interviewer instead devoted about half the interview to a discussion of her Crohn’s disease. The resulting inference is that the interviewers’ real concern—and thus the reason they rejected Sjöstrand’s application—was her Crohn’s disease.

OSU could have perfectly legal reasons for rejecting Sjöstrand’s application. In fact, the school listed five different reasons. However, as this case demonstrates, the questioning about her medical condition during the interview tainted the entire process.

In the employment context, it is per se illegal to make any disability-related inquiries before you make a conditional job offer. If you ask medical questions during a job interview, you have violated the ADA whether or not you ultimately hire the individual. If you don’t hire the individual, those illegal questions will likely taint your hiring process beyond the point of no recovery.

It behooves you to communicate this message to anyone who interviews for you. Even though Sjöstrand is not an employment case, it’s a great illustration of what can go wrong when an employer interjects an applicant’s medical issues into the interview process.

NLRB judge says employee cannot require its employees to disclaim social media posts

The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.

In The Kroger Company of Michigan [pdf], and NLRB administrative law judge concluded that Kroger’s Online Communications Policy—which required that it’s employees post the above-quoted disclaimer along with the publishing of any work-related online content—was illegal.

The ALJ conceded that Kroger’s has a legitimate interest in limiting unauthorized communications. Nevertheless, the perceived over-breadth of the policy trumped the employer’s legitimate interest:

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would never—ever—withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech. 

How does a statement by an employee, on the employee’s personal Facebook page, that the posts are his and not his employer’s, chill an employee from expressing an opinion about work? To the contrary, this disclaimer would seem to have the opposite effect, freeing the employee to talk about work because he or she has already disclaimed that the post is merely the employee’s personal opinion, and not an official statement of the employer.

As Eric Meyer pointed out in discussing this decision last week, Kroger merely serves to add to the confusion that already exists around workplace social media policies. As for me, I see little harm in these types of disclaimers.

WIRTW #318 (the “billion” edition)

This week, Facebook announced that it has more than a billion mobile users per month. From The Verge:

The company reported 1.28 billion monthly active users and over 1 billion monthly active mobile users. This time last year Facebook had 1.1 billion active monthly users and 751 million monthly mobile users, an increase of 34 percent. It was the first time it had over 1 billion mobile users in a single month.

This number should be a wake-up call for any business that is ignoring the impact of mobile technologies on your workplace. Do you ban Facebook and other personal Internet use at work? You better believe employees are taking out their iPhones and doing it anyway. Do you support BYOD? You better, because your employees will clamor for it. We live in a mobile world. Your business’s workforce relations needs to adjust.

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

Discrimination

• Sixth Circuit redefines the “workplace” when considering attendance as an ADA essential job function — from Eric Meyer’s The Employer Handbook Blog
• Road Rules: Ruling Now Guides Telecommuting As Reasonable Accommodation Discussion — from Dan Schwartz’s Connecticut Employment Law Blog
• Employee representing himself? Take it just as seriously as any other lawsuit — from Business Management Daily
• Keeping Background Checks Legal Under EEOC Guidance — from ERC Insights Blog
• All That for a Bag of Chips: Walgreens going to trial in disability discrimination case — from Robin Shea’s Employment & Labor Insider
• EEOC: Employer Violated ADA by Withdrawing Job Offer Because of Applicant’s Old Back Injury — from EmployerBrief
• Is attendance always an essential function of the job? — from Understanding the ADA

Social Media & Workplace Technology

• What’s all this fuss about BYOD? — from Mike Haberman’s Omega HR Solutions
• Hurt Feelings Do Not a Lawsuit Make … Even on Twitter — from Delaware Employment Law Blog
• Lawyers can look up jurors on social media but can’t connect with them, ABA ethics opinion says — from ABA Journal Daily News

HR & Employee Relations

• How To Leave Work At 5 P.M. And Still Get Everything Done — from Kathryn Dill at Forbes
• Why I Tell My Employees to Bring Their Kids to Work — from Harvard Business Review
• Can You “Negligently” Fire Someone? — from Suits by Suits
• Defamation and Invasion of Privacy: What These Terms Mean for Employers — from All in a Day’s Work
• Is It HR’s Role to Support the Company, or Its Employees? — from TLNT

Wage & Hour

• “Perhaps it is time for defendants to start settling less often” — from Walter Olson’s Overlawyered
• The High Cost of Noncompliance — from Ohio HR Law
• Overtime, an Introduction — from Michigan Employment Law
• FLSA Class Actions – A $6 Million Reminder to Re-visit Hours Worked Policies — from Wage & Hour - Development & Highlights
• Eighth Circuit Unpacks Hire/Fire Prong of the FLSA's Executive Exemption — from Minnesota Employment Law Report
• Playing with Employees’ Hours Could Get You in Hot Water under the ACA and FLSA — from Health Employment and Labor
• New Fitness-for-Duty Exam Consistent With Returning Employee’s FMLA Rights, Court Says — from Joe’s HR and Benefits Blog

Labor Relations

• Four Union Guys Walk Into a Bar… — from Rick Bell at Workforce
• NLRB Orders Employer to Repay Union’s Bargaining Costs — from Labor Relations Today
• Unions’ $735,000 Question: Why “No Reply”? — from LaborPains.org
• Who Needs Miss Manners? Apparently Not Employees, NLRB Says — from Labor & Employment Law Perspectives
• Employee Handbook Policies: The NLRB Giveth, and Taketh Away — from The Blue Ink
• It’s No Secret…The NLRB On Confidentiality Requirements at Work — from The Emplawyerologist

Revisiting the misnamed and misunderstood term "wage theft"

Yesterday, on his always excellent Connecticut Employment Law Blog, Dan Schwartz wrote a post entitled, “Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means. Dan wrote:

[T]he use of the phrase is being pushed to push various agendas — not as a result of any legal theory or real change in the law.… And it’s time to call it out; it’s a phrase that is both misleading and loaded.… Does that mean that the problem of employers failing to pay employees overtime should be ignored? Hardly. Employers who fail to follow the the myriad of wage and hour laws should be held accountable. And suffice to say that criminal activity by employers should continue to be enforced vigorously.… Quite simply: The use of a criminal term for a non-criminal act needs to stop.

Dan is 100 percent correct that the term “wage theft” is being misused and abused. The mainstream press and bloggers are using the term to cover any situation in which an employer is not paying required overtime, whether it’s an intentional withholding or an honest mistake. “Theft” connotes bad intent — yet most wage and hour mistakes are honest ones born out of a misunderstanding of the law, not a desire to cheat or steal from employees.

Dan was kind enough to cite to a post I wrote on the same topic almost a year ago, entitled, Taking issue with the term “wage theft”. Because Dan has shed new light on this important issue, I thought it makes sense to republish my earlier post.

Lately, I’ve read a lot of blogs that accuse employers of committing rampant wage theft (e.g., here, here, and here). 

I have a huge problem with the term “wage theft.” It suggests anintentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not. 

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better. 

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. 

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft statutes that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation. 

In my most recent book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law, I summarized this issue best: 

“Congress enacted the FLSA during the great depression to combat the sweatshops that had taken over our manufacturing sector. In the 70 plus years that have passed, it has evolved via a complex web of regulations and interpretations into an anachronistic maze of rules with which even the best-intentioned employer cannot hope to comply. I would bet any employer in this country a free wage-and-hour audit that i could find an FLSA violation in its pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive…. 

“I am all in favor of employees receiving a full day’s pay for a full day’s work. What employers and employees need, though, is a streamlined and modernized system to ensure that workers are paid a fair wage.”