If you're caught sunbathing nude, on the roof of your elementary school-employer, don't sue for retaliation

Charles Davis is a long-time custodian for Unified School District No. 500. In 2007, he was caught on the roof of the elementary school at which he worked, sunbathing, in the nude. Instead of firing him, the school board suspended him for 30 days without pay and demoted him. Over the next five years, he applied for seven different head custodian jobs with the district. Each job went to a different applicant. Davis filed three different charges with the EEOC stemming from those rejections, first for race discrimination, and later for retaliation.

In Davis v. Unified School District No. 500, the 10th Circuit upheld the district court’s dismissal of Davis’s retaliation claim:

In a nutshell the key issue is whether a common purpose to retaliate against Davis must be inferred from the sheer volume of his promotion denials; we think not when seven independent and informed decision makers are involved.

Some employees are unworthy of protection by the anti-retaliation laws. Yes, Davis filed many EEOC charges claiming discrimination resulting from his employer’s failure to promote him. But, he was also caught sunbathing, nude, on the roof of the elementary school at which he worked. One decision maker would be justified in concluding that Davis was unworthy of a promotion. Seven different decision makers reached the same conclusion. Thus, barring evidence of a grand conspiracy against Davis because he had filed some EEOC charges, he could not prevail on his retaliation claim.

The moral of the story: not all protected activity is protected.

(Hat tip: Judy Greenwald at Business Insurance)

WIRTW #320 (the "did you hear the one about…?" edition)

After the week I’ve had, I think some humor is in order. Apparently, I’m not the only one. This article from the Wall Street Journal suggests that companies can connect better with their employees and customers with levity. 

And any good HR manager can tell you that workplace satisfaction — not compensation — is the best predictor of employee retention. Humor can be a powerful tool in inter-office communications, as research has shown that it’s a useful way to cope with pain, stress and adversity (in other words, staff meetings).

Here’s the rest of what I read this week

Discrimination

• FACT OR FICTION: There is such a thing as a reverse-disability claim? — from Eric Meyer’s The Employer Handbook Blog
• Physical attendance not required? ADA and telecommuting, cont’d — from Walter Olson’s Overlawyered
• Second Circuit Rejects Hostile Work Environment and Retaliation Claims — from Minnesota Employer
• Employers: Don’t Retaliate Even After The Employee Is Gone — from Employment Discrimination Report
• The Disability of the Future Workplace? — from Blogging4Jobs

Social Media & Workplace Technology

• #SocialMediaFail: PayPal director Rakesh Agrawal Departs After Troubling Tweets — from Shear on Social Media Law
• 8 Great iOS Apps That Have Nothing To Do With Practicing Law — from Lawyerist
• State Business Courts – New Rules for Tech Disputes — from Augmented Legality
• Will The Sixth Circuit Get ‘A Rise’ Out Of This Former Bengal Cheerleader’s Dirty Case? — from Abovethelaw.com
• 7 Ways Twitter has Changed Over the Years — from Social Media Strategies Summit Blog

HR & Employee Relations

• DON’T GO VIRAL: Donald Sterling, et al., and off-duty conduct — from Robin Shea’s Employment and Labor Insider
• Should You Be Outsourcing Your Human Resource Management Needs? — from Mike Haberman’s Omega HR Solutions
• ‘Work/life’ balance isn’t your employer’s problem—it’s yours — from Ragan.com
• Millennials @ Work — from SHRM Blog
• US Senate Bill Targets Credit Checks and FCRA Reform — from employeescreenIQ Blog

Wage & Hour

• Uncovering FMLA Abuse – With a Little Help From Big Data — from TLNT
• Agencies Release Exchange-Related COBRA Guidance — from E is for ERISA

Labor Relations

• Filing a Wage and Hour Class Action is Protected by the National Labor Relations Act — from Wage & Hour Defense Blog
• Employer Email Policies on Chopping Block as General Counsel Seeks to Overrule Register Guard and Board Calls for Amicus Briefs — from Labor Relations Update
• NLRB Inviting Briefs on Whether Union Supporters May Use Company Email for Union Activities — from Wyatt Employment Law Report
• House To Hold Hearing On Student/Athlete Unionization — from Labor Relations Today
• The End of Register-Guard? — from Workplace Prof Blog
• Will Your Social Media Policies and Practices Pass NLRB Muster? — from The Emplawyerologist

Until next week…

EEOC continues fight against severance agreements,while employers fight back

Earlier this year, I reported on a groundbreaking lawsuit the EEOC filed against CVS challenging as retaliatory some garden-variety provisions in employee separation agreements (here and here). 

Earlier this week, the EEOC reported that it has filed a similar lawsuit in Colorado, against CollegeAmerica. From the EEOC’s news release:

Debbi D. Potts, the campus director of CollegeAmerica's Cheyenne, Wyo., campus, resigned in July 2012 and signed a separation agreement in September 2012 that conditioned the receipt of separation benefits on, among other things, her promise not to file any complaint or grievance with any government agency or to disparage CollegeAmerica. These provisions would prevent Potts from reporting any alleged employment discrimination to the EEOC or filing a discrimination charge.…

The EEOC also claims that provisions which similarly chill employees’ rights to file charges and cooperate with the EEOC exist in CollegeAmerica’s form separation and release agreements, routinely used with its employees.…

“Rights granted to employees under federal law, like the right to file charges of discrimination and participate in EEOC investigations into alleged discrimination in the workplace, cannot be given up in agreements between private parties,” said Mary Jo O’Neill, Regional Attorney for the EEOC’s Phoenix District Office…. “Otherwise, employers could easily do an end run around the law, employees would not be free to complain about discrimination, and the EEOC would never learn about violations of the law or have an opportunity to enforce it.”

Meanwhile, CVS is fighting back against the EEOC in its lawsuit. CVS has asked the district court to dismiss the complaint in its entirety, cap arguing that the mere inclusion of terms in a severance agreement does not violate Title VII. Business groups are also weighing in, the court has granted permission to the Retail Litigation Center to file a brief in support of CVS’s motion to dismiss. 

I continue to believe that this issue is the most important issue to employers that the EEOC is currently litigating. 

It is becoming clear that the CVS lawsuit was not an anomaly, and that challenging these types of provisions in severance agreements is high on the EEOC’s radar. For now, however, I think employers should take a wait-and-see approach. This issue is too important for employers to knee-jerk pull these key clauses from their agreements.

For now, what I wrote in February (which includes a draft carve-out) still holds true:

Don’t shred your settlement and severance agreements just yet.… Modify your agreements to bolster and clarify the protected-activity carve-out.… Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

How flexible are our modern workplaces?

As I type, I’m 30,000 feet above Pennsylvania, flying to see my dad, who’s waiting in the hospital for surgery. As you read, i’m probably sitting somewhere on the campus of the Hosptial of the University of Pennsylvania. I share these facts not for well wishes, but because today’s post happens to be about workplace flexibility. 

Last week the Families and Work Institute and the Society for Human Resource Management published the results of their National Study of Employers, which revealed three interesting facts about the role of flexibility in the modern workplace.

1. The smaller the employer, the greater the flexibility. Employers with between 50 and 99 employees are more likely than employers with 1,000 or more employees to offer the following work-flex benefits:

• Change starting and quitting times within an accepted range of hours (33% versus 20%)
• Work regular paid hours at home occasionally (11% versus 4%)
• Control over when to take breaks (66% versus 52%)
• Return to work gradually after childbirth or adoption (53% versus 37%)
• Take time off during the workday to attend to important family or personal needs without loss of pay (52% versus 36%)

2. Telecommuting is on the rise. More employers are providing occasional telecommuting (67%) for at least some employees than in 2008 (50%).

3. Flexibility, child care, and elder care lead to increased employee retention. Thirty-five percent of employers cite “retention” as the key reason for providing flexibility, along with child and elder care assistance. 

Two weeks ago, I wrote on telecommuting as a reasonable accommodation under the ADA. The more I think about the impact of mobile technology on the workplace, the more I am convinced that the 6th Circuit got it right. There is no excuse for an employer to be inflexible with those of its employees for whom it is feasible to work remotely. If an employee is performing, then it doesn’t matter where the employee performs. If the employee isn’t performing, treat it as an indictment of that employee, not an indictment on telecommuting as a practice or standard. 

Potty mouthed employees

Most non-union employees are at-will, which means you can fire them for any reason, good, bad, or for no reason at all (as long as some other law, such as discrimination laws, doesn’t trump). So, if an employee has a potty mouth, you can fire her, right? Not so fast, says an unemployment hearing officer in Iowa.

Wellma “Tootie” Shafer worked for 18 months as a cashier at the Last Chance Market in Russell, Iowa. The market sells the following products:

• “Wake the F— Up” coffee
• “The Hottest F—in’ Nuts”
• “The Hottest F—in’ Sauce,” which is labeled as having an “ass-burning” quality

The store also boasts a metal sign by the entrance that reads, “Shirts and shoes are required, but bras and panties are optional.”

It seems that Tootie liked to talk to some of customers about “dirty, adult situations.” After some eavesdropping customers complained, her boss, Rick Braaksma, fired her. At the unemployment hearing, the hearing office took Braaksma to task for his apparent double standard. From The Des Moines Register:

After Braaksma testified that he doesn’t tolerate dirty jokes in his store, Administrative Law Judge Beth Scheetz asked him, “So why don’t you remove these articles from your shelves?” 

“Because we sell them,” he said. 

“They are dirty jokes on your shelves, basically,” Scheetz said. 

“No, they’re bottles of hot sauce,” Braaksma responded. “It’s all right to have dirty words on the premises because the farmers come in there and eat lunch all the time and that’s just, uh, kind of —” 

“So dirty words are OK,” Scheetz said. 

“Yeah,” Braaksma said, “but there’s a time and a place for it.”

I can make a really good argument that once a customer complains about an employee’s potty mouth, the game changes (even if the store sells f’n coffee). If someone complains about harassment, an employer should investigate, and, if necessary, reasonably remediate. In this case, the employer decided to terminate. This judge, in this context (an unemployment claim), saw it differently. 

The NLRB is looking to overturn email solicitation rules

In Register Guard, the NLRB held that an employer’s solicitation or other communication policy can lawfully bar employees’ non-work related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the NLRA, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era Board. Now, it’s 2014, and the current Obama-era Board is taking a look at Register Guard. 

The Board has posted a notice [pdf] asking advocates to submit position briefs covering each of the following five issues:

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The notice is in response to an ALJ’s decision in Purple Communications, Inc., holding that an employer did not violate the Act by prohibiting use of its electronic equipment and email systems for activity unrelated to its business purposes. 

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard, and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it to restrict employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers and bears monitoring as this important issue weaves its way through the NLRB. 

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