WIRTW #326 (the “dads” edition)

Earlier this week, I wrote about the importance of work/life balance to working dads. Today I thought I’d share some other thoughts on the issue I found on the Web this week:

• For Father’s Day, Get Rid of Working-Father Myths — from Families and Work Institute Blog
• The Rise of the Hands-On Dad — from Harvard Business Review
• Work-Life Balance: A Bad Concept That Ignores The Real Problem — from TLNT

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

Discrimination

• EEOC’s David Lopez Addresses Connecticut Bar Association — from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC sues a nonprofit that assists the disabled for, yep, disability discrimination — from Eric Meyer’s The Employer Handbook Blog
• Defending EEOC Charges: “Don’t Use An Attorney Unless Really Necessary” Says Veteran Defender — from Employment Discrimination Report
• Gender and Reverse Discrimination in the Workplace — from Ohio HR Law
• Obama to Sign Executive Order Prohibiting Sexual Orientation Discrimination — from Phil Miles’s Lawffice Space
• Is the EEOC the new NLRB? — from Michigan Employment Law Connection
• Does an Employer Have an Obligation to Provide Accommodations to Pregnant Employees? Don't Follow This Employer's Lead — from FMLA Insights

Social Media & Workplace Technology

• Social media applicant searches too risky — from Technology for HR
• Every Legal App for iPhone and iPad — from Lawyerist
• Jurors Behaving Badly — from Molly DiBianca’s Delaware Employment Law Blog
• Tweet served as evidence of initial interest confusion in trade dress case — from Internet Cases
• Majority of US House supports overhaul of email privacy protections — from The Verge

HR & Employee Relations

• Beware of employees who are too eager to please — from Robin Shea’s Employment & Labor Insider
• Non-Competes on the Rise? — from Smooth Transitions
• What You Need to Know Before Signing a Noncompete Agreement — from Lifehacker
• The Wildcard in Noncompete Litigation – The Judge — from Michigan Employment Law Advisor
• Divided Appellate Court Voids Employer’s Non-Compete Covenants Because One Employee Did Not Sign — from Trading Secrets
• How to Create an Awesome Company Culture (No Perks Necessary) — from Evil HR Lady, Suzanne Lucas
• Top 10 Things Employers Should Never Do — from Blogging4Jobs

Wage & Hour

• Wage and Hour Lawsuits Against McDonalds, Too: Fast-Food Workers Are Fighting Back — from Employment Lawyer Blog
• Interns Win One, Lose One, In Having Misclassification Cases Conditionally Certified In New York — from Employment Class Action Blog
• Another Example of Owner Liability for Unpaid Wages and Liquidated Damages for Employee Misclassification — from Employment Matters Blog
• Must Know Facts for Hiring Teenagers this Summer — from Wage & Hour - Development & Highlights
• July 4th and other Paid Holiday Trends — from ERC Insights Blog
• FLSA Settlements – Doesn’t Mean It is Over Yet — from Wage & Hour Defense Institute
• Are you aware the Feds are about to rattle your world? — from Mike Haberman’s Omega HR Solutions
• DOL to Revise Definition of “Spouse” in FMLA Regulations — from Health Employment and Labor
• In the News -- Paid Leave — from Workplace Prof Blog

Labor Relations

• Board GC Seeks To Change Work Email Rule — from Labor Relations Today
• NLRB Asserts Jurisdiction Over a Charter School in New York — from New York Labor and Employment Law Report
• NLRB Strikes Down Employee Conduct Rules and Non-Disclosure Agreement, Reminding Employers to Be Mindful of Their Policies — from Hunton Employment & Labor Law Perspectives™
• Here’s Your [Expletive] Latte! — from The Employment Brief
• Confiscating Union Literature and Engaging in Surveillance of Union Activities Invalidates Election — from Vorys on Labor

Firing of county employee teaches important lesson about use of mobile technology

We love our phones. We are an iPhone society. I’ve referred to the phenomenon as “iPhone-ification.” Do you know that there are more mobile phones than people in the United States? Moreover, 90% of American adults own mobile phones, and nearly 60% are “smart.”

Not these phones.

Despite the proliferation of mobile phones, and their use in work and for work, many employees still do not understand the difference between work use and personal use.

Case in point? Yesterday, the Cleveland Plain Dealer reported that Cuyahoga County suspended a supervisor for using his county-issued cell phone to send unwelcome sexual text messages to a co-worker. According to the County [pdf], the employee used his phone to flirt and text sexual innuendo, even after the recipient told him to stop.

From this story, I offer two lessons—one for employees and one for employers.

• For employees, please stop using your work phones (and that includes your own personal devices that your employer allows you to connect to its network, i.e, BYOD) for personal business that will get you in trouble at work. If you wouldn’t say it to someone’s face, don’t email it, text it, Facebook it, or otherwise send it via your phone. Just because we treat our phones like members of our families does not mean that their content are off limits to employers. They’re not. 
• For employers, communicate this message to your employees. Trust me, they don’t get it. They think the four-inch device in their pockets is theres, and what they email, text, Facebook, etc., is not your business. Spell it out, in plain English in a mobile device policy. And reinforce that message in training sessions.

Photo used with permission / original here.

NLRB Judge holds that even individual acts can constituted protected concerted activity

Webster’s Dictionary defines “concerted” as, “done in a planned and deliberate way usually by several or many people; mutually contrived or agreed on.” Given this definition, I was surprised when I read a decision by an NLRB Administrative Law Judge, which held that a lone act of one constituted protected concerted activity under section 7 of the National Labor Relations Act.

Marjan Arsovski, a waiter at Beyoglu (a New York City restaurant), filed a wage-and-hour collective action in federal court claiming that his employer failed to pay him, and other similarly situated employees, minimum wage or overtime. His complaint alleged:

Plaintiff on behalf of himself and similarly situated persons who are current and former tipped employees…, who elect to opt in to this action…. FLSA Collective consists of approximately 40 similarly situated current and former employees of Beyoglu, who over the last three years, have been victims of Defendants’ common policy and practices that have violated their rights under the FLSA, by, inter alia, willfully denying them overtime wages.

The employer filed him the same day it received service of the lawsuit. During the termination meeting, Arsovski claimed he was told that the owner did not want him in the restaurant because of the lawsuit.

Even though Arsovski was the only named plaintiff in the lawsuit, the ALJ in 200 East 81st Restaurant Corp. [pdf] concluded that the collective allegations made in the suit were sufficient to constitute protected concerted activity under section 7 of the NLRA.

I have no doubt and conclude that Arsovski was fired because he filed an FLSA lawsuit that was received by the Respondent on the morning of June 25, 2013; the very day that his employment was terminated…. The legal question here is whether in filing the FLSA lawsuit relating to wages, Arsovski was engaged in concerted activity within the meaning of Section 7 of the Act. Or was he acting solely in pursuit of his own interests? …

Clearly, the evidence in this case does not establish that Arsovski acted in concert with, or on the authority of any of the other employees. His lawsuit was not filed with their consent, or except perhaps in one case, even with their knowledge. On the other hand, his Complaint does allege that it was filed on behalf of a class of similarly situated employees who work or have worked at the Respondent over a three year period of time. In this regard, it could be argued that Arsovski sought “to initiate or to induce or to prepare for group action.” …

Therefore, if Arsovski was discharged because the employer believed or suspected that he was engaged in concerted activity that would be sufficient to find a violation of the Act.

This case turns a wage-and-hour retaliation claim into an NLRB protected-concerted-activity charge. I’m confused why Arsovski would file this claim with the NLRB, instead of amending his complaint to add a retaliation claim under the FLSA.

A lawsuit filed by one person does not seem “concerted,” even if the claim seeks concerted relief. It’s neither mutually planned nor agreed upon. Yet, the judge had no problem concluding that Arsovski’s action was a group action. Given the breadth of the NLRB’s recent outreach into non-union workplaces, this case serves as a solid reminder that employer should consider the risk of a potential NLRB charge with all terminations and other adverse actions that involve complaints about work, because, as this case illustrates, the actions of one lone employee can, in the right circumstances, constitute protected concerted activity.

[Hat tip: Wage & Hour Insights]

An ode to working dads.

I have a good dad. Some of my best memories of my dad of him involve covering the walls of our dining room with paper so that I could practice writing, or sitting down reading books or doing math problems. Growing up, the memories shift to coaching little league, swimming in the ocean, and waiting in long lines at Great Adventure. In between all the play, he worked … hard. I remember my dad sometimes working three jobs — by day he taught special-ed in the Philadelphia School District, at night he taught classes at the local Penn State extension campus, and on weekends he managed my grandfather’s bar. He did all this so that he could provide as best he could for my family. And I am grateful.

Last Monday, the White House held a summit for working fathers, which highlighted on the following statistics:

• In 63% of families with children, both parents work.
• 60% of dads in dual-earning couples report experiencing work-family conflict (as compared to only 47% of moms).

Three days later, the Wall Street Journal ran an article entitled, The Daddy Juggle: Work, Life, Family and Chaos, which asked the question, “Can working fathers have it all?” The answer may lie in whether employers can get past traditional stereotypes about the role of men as breadwinners and women as caregivers.

Working against men is a stigma that those who identify themselves as active fathers are unwilling to work hard or put the company first.

A 2013 paper from the University of Toronto’s Rotman School of Management found that colleagues regard active fathers as distracted and less dedicated to their work. At the same time, a Harvard researcher has shown that men with children earn higher salaries when their wives work less than full-time.

Taken together, the evidence suggests that men in traditional breadwinner roles are rewarded, either because of cultural assumptions or because they are able to put their jobs first, while men who act as caregivers are hurt for doing so.

I don’t think dads necessarily want to “have it all.” Here’s what I do think:

1. Dads want to be offered the same flexibility as women to balance their jobs and their work. Employers beware. Getting stuck in traditional mindsets by offering flexibility and balance to women, but not men, is discriminatory. 
2. With technology making communication and instant access more feasible than ever, there is little excuse for employers not to try offering flexibility to their workers (men and women). Today’s employee is tethered to his or her iPhone. Employers should take advantage of this access. Give your employees some rope. If mom or dad has to take a child to a doctor’s appointment, or wants to volunteer at school, or coach a team, let them. They will still answer calls and return emails, because it’s their job to do so. And, if they don’t, then you have a performance issue, not a flexibility issue. We are all accessible around the clock. There is simply no excuse for an employer not to offer flexibility to all employees—men and women—whose jobs permit it.

Hold the Onion(head): What is a “religion” under Title VII?

Not an onion. Meet Mr. Lettuce.

Have you heard the one about the company that fired employees who refused to worship an onion? This is not the start of a joke, but a real, live lawsuit filed by the EEOC.

According to the EEOC, United Health Programs of America, and its parent company, Cost Containment Group, required its employees to participate in “group prayers, candle burning, and discussions of spiritual texts,” all as part of a “belief system” that the defendants’ family member created, called “Onionhead.” The EEOC further alleges that employees who refused to participate were fired.

What is “Onionhead?” According to the Harnessing Happiness Foundation, Onionhead is not a “what,” but a “who.”

Onionhead is this incredibly pure, wise and adorable character who teaches us how to name it - claim it - tame it - aim it. Onion spelled backwards is ‘no-i-no’. He wants everyone to know how they feel and then know what to do with those feelings. He helps us direct our emotions in a truthful and compassionate way. Which in turn assists us to communicate more appropriately and peacefully. In turn, we then approach life from a place of our wellness rather than a place of our wounds. 

His motto is: peel it - feel it - heal it

I’m not making this up. This comes right from the website of the Harnessing Happiness Foundation, which is a legitimate 501c3 nonprofit organization. It is “dedicated to emotional knowledge and intelligence, conflict resolution and life handling skills, for all ages,” which teaches the belief that “hope lies in our ability to deal with problems in a respectful, mindful and loving way.” “Onionhead” is part of Harnessing Happiness, which uses a genderless onion “as a medium to express peeling our feelings, as a way of healing our feelings.”

According to the New York Daily News, Denali Jordon, whom the EEOC’s lawsuit identifies as the group’s “spiritual leader,” denies that Onionhead is a religious practice.

Here’s the thing. For purposes of the EEOC’s religious discrimination lawsuit, it doesn’t matter whether or not Onionhead is a bona fide “religion.” According to the regulations interpreting Title VII’s religious discrimination provisions:

In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.

We know that forcing employees to participate in religious practices at work is a no-no. If “Onionhead” is a religion, than the EEOC will likely have an easy go of it in court. Should we take Ms. Jordon at her word that Onionhead is not a religious practice? According to Title VII’s regulations, the answer is no. According to the Harnessing Happiness Foundation’s website, Onionhead appears to include sincerely held moral or ethical beliefs about what is right and wrong. Thus, it appears that, even though Onionhead’s leaders deny its status as a religion, Title VII likely concludes otherwise.

What does all this mean for you? Leave religion out of the workplace. Whatever you call your deity—God, Jesus, Allah, Buddah … or even Onionhead—leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs.

As for me, I’m requesting no onions on my salad at lunch today (just in case).

(Hat tip: Business Insurance / Judy Greenwald)

WIRTW #325 (the “World Cup” edition)

Do you have World Cup fever? I don't. There's a much better chance I'll be checking the leaderboard from Pinehurst than the box scores from Brazil. I think I'm in the minority. An estimated 111.6 million Americans watched at least some of the 2010 World Cup. I bet that the number will increase this go-round, especially with Brazil being more U.S. time-zone friendly. How should you deal with your distracted employees? Some of my blogging friends have some ideas.

• World Cup Fever: Workplace Considerations Before Giving Out That Red Card — from Dan Schwartz’s Connecticut Employment Law Blog
• The World Cup Is on … Should You Be Watching? — from The Evil HR Lady, Suzanne Lucas

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

Discrimination

• The firefighter afraid of fighting fires loses his ADA claim. Right, you guys? Right?!? — from Eric Meyer’s The Employer Handbook Blog
• Why Did The EEOC Prematurely Announce A Settlement Only To Be Slapped Down By The Court? — from Employment Discrimination Report
• “English Only” - Discrimination or Legit Job Requirement? — from Phil Miles’s Lawffice Space
• Of Course EEOC Mediations Are (or Should Be) Different! — from EEO Legal Solutions
• How might you know when more leave is a reasonable accommodation once FMLA leave has been used up? — from Understanding the ADA

Social Media & Workplace Technology

• How to respond to negative online reviews — from Ragan.com
• Business vs. Pleasure ─ Tips to Keep Your Social Media Accounts Separate — from Social Media Strategies Summit Blog
• Lawsuit: University of Cincinnati Medical Center Employee Posted Patient STD Diagnosis on Facebook — from Shear on Social Media Law

HR & Employee Relations

• Your Work-Life Balance Should Be Your Company’s Problem — from Harvard Business Review
• The Father’s Day Audit — from You’re the Boss Blog
• Work and Life: You Gotta Have Heart — from Blogging4Jobs
• How Telecommuters Drive Home the Need for Confidentiality and Privacy Policies — from The Emplawyerologist
• My Co-Worker Uses His Cell Phone In The Restroom — from Evil Skippy at Work
• Remember “BRIEF” for Efficient Office Communication — from Lifehacker

Wage & Hour

• Auto-Deduct Meal-Break Policies Live to See Another Day — from Molly DiBianca’s Delaware Employment Law Blog
• How Common Are Wage and Hour Violations at Subway and Other Fast-Food Restaurants? — from Employment Lawyer Blog
• Sixth Circuit rejects argument that ACA’s requirement that Catholic Church-related non-profits “self certify” their religious objections to the provision of contraceptive services imposes a “substantial burden” under the Religious Freedom Restoration Act — from How Appealing

Labor Relations

• NLRB Nixes Policy Prohibiting Off-Duty Access to Facility — from In House
• Busted! NLRB Finds Employer’s Prohibition of Sticker Unlawful — from Vorys on Labor
• NLRB Attacks Employee Handbook Rules — from Wyatt Employment Law Report
• “Busted” by Buttons — When Union Propaganda May Be Permitted in Patient Care Areas — from Labor & Employment Law Perspectives

U.S. Chamber of Commerce challenges EEOC over its “unreasonable” enforcement tactics

I’ve written before about federal courts taking the EEOC to task for its overly aggressive litigation tactics (for example, here, here, here, here, and here).

Earlier this week, the U.S. Chamber of Commerce published a 25-page report [pdf] (h/t Wall Street Journal), in which it challenged the EEOC on its “unreasonable” enforcement tactics. According to the Chamber, its analysis of the EEOC’s enforcement and litigation strategies “reveals an agency which often advances questionable enforcement tactics and legal theories.” For example:

• EEOC will pursue investigations despite clear evidence that any alleged adverse action was not discriminatory—such as terminating an employee caught on videotape leaving pornography around the workplace.
• EEOC investigators propose large settlement figures, only to dismiss the case entirely upon rejection of the offer, making the whole basis of the original settlement offer intellectually dishonest and turning a supposedly neutral investigation into nothing more than a “shakedown.”
• A federal case in which the judge criticized EEOC for using a “sue-first, prove later” approach. 
• A federal case brought by EEOC which the judge described as “one of those cases where the complaint turned out to be without foundation from the beginning.” 
• A federal case in which the judge criticized EEOC for continuing “to litigate the … claims after it became clear there were no grounds upon which to proceed,” describing the EEOC’s claims as “frivolous, unreasonable and without foundation.”

The report also challenges the EEOC’s amicus program, in which, according to the Chamber, federal courts rejected the agency’s legal interpretations (premised on its formal enforcement guidance and other policy statements) approximately 80% of the time.

From all of this data, the Chamber concludes:

Combating discrimination in the workplace is a worthy goal and one that the Chamber supports. However, … EEOC’s abusive enforcement tactics can no longer be ignored. While some federal judges are pushing back in some cases, EEOC clearly has not received the message. Moreover, relying on judges as the final check on EEOC enforcement is often a case of “too little, too late”: by that time, employers have already spent significant time and resources defending themselves against unmeritorious allegations. In other words, even when employers win, they lose.… 

What’s more, the courts’ rejection of EEOC’s underlying regulatory guidance leaves employers searching as to where to find accurate, reliable guidance on their legal obligations under federal non-discrimination laws. And, with a fully staffed Commission several new guidance positions are possible on a broad range of topics including: wellness plans, reasonable accommodations, pregnancy and national origin discrimination and credit-related background checks.

While the entirety of the 25-page report is intellectually interesting to employers, it doesn’t mean a hill of beans if the EEOC sues you. As we all know, lawsuits are expensive. It could cost you millions of dollars to prove the EEOC wrong. I doubt you want to spend millions defending one lawsuit? So what are you to do? Sadly, you are to do what the EEOC says, or risk ending up in the agency’s money-vacuum crosshairs.

Yet, I believe that the EEOC does not care how many times federal courts rebuke its litigation tactics—that the mere threat of an expensive enforcement action is sufficient deterrent for the agency to put forth its enforcement agenda. For example, is the EEOC correct that credit and criminal checks always have a disparate impact on minorities, no matter why an employer uses them? Probably not. But, the alternative is a potential million-dollar lawsuit. The agency is making law by the threat of lawsuits. This legislation-by-extortion is dirty pool, and undermines all of the good the agency does to promote equal rights for all in employment.