WIRTW #331 (the “Rosie” edition)

According to a recent report jointly published by the Pew Research Center and the Imagining the Internet Center, almost half (48%) of technology experts believe that by 2025, robots or digital agents will substantially take over many jobs currently performed by humans. These same experts expressed concern that this displacement will lead to increases in income inequality, the unemployability of certain workers, and breakdowns in the social order.

So, readers, are we on the verge of Isaac Asimov’s I, Robot, or is this a pipe dream of sci-fi fanboys?

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

Discrimination

• Discrimination Lawsuits Aren’t Rorschach Tests— They Should Not Be Subject to Interpretation — from Jason Shinn’s Michigan Employment Law Advisor
• Ohio State “Victim” of Harassment Calls Investigation “Deeply Flawed” — from WinWinHR
• Pawnshops Charged in Title VII Harassment Suit — from Joe’s HR and Benefits Blog
• Areheart & Stein on the Disability/Employability Divide — from Workplace Prof Blog
• Wal-Mart: Or How Not to “Handicap” Relationships with Disabled Workers — from The Emplawyerologist
• Email, age discrimination, and conspiracy — from Technology for HR
• Lifting restrictions weigh down employees’ ADA claims — from EmployerLINC

Social Media & Workplace Technology

• Source: Facebook Is Building FB@Work — from TechCrunch
• Employee’s Discrimination Claim Can’t be Salvaged by Coworker’s Allegedly Inappropriate Facebook Post — from Technology & Marketing Law Blog
• Your USB Ports Are Not Safe — from Lawyerist
• Why Social Media is Important for Workplace Investigations and Security — from i-Sight Investigation Software Blog

HR & Employee Relations

• CEO Steps Down To Be A More Involved Dad — from Fathers, Work and Family
• Letting Someone Go With Dignity — from You’re the Boss Blog
• Non-Compete That’s Here Today But Gone Tomorrow – Beware The ‎Unintended Consequences Of An “Integration Clause”‎ — from Suits by Suits
• Shawk & Awe In Non-Compete Enforcement? — from Smooth Transitions
• Drug-Free Workplaces In The Era Of Medical And/or Legal Marijuana Use — from The Employment Brief
• All You Need Is Employment Law — from EntertainHR
• Shuffleboard, Early Bird Specials, and … Whistleblowing? — from Employment Matters Blog

Wage & Hour

• Do Camp Counselors and Baby Sitters Have to be Paid Minimum Wage? — from Dan Schwartz’s Connecticut Employment Law Blog
• What Overtime Violations Are Lurking in Your Timekeeping System? — from HR Daily Advisor
• Defeating Conditional Certification Motions in FLSA Collective Actions — from Wage & Hour - Development & Highlights
• Here’s the wrong way to deliver FMLA notices to employees — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• NLRB Ratifies Actions Affected by Noel Canning Ruling — from Law.com
• Does Your Handbook Need Help? — Why All Employers Need to Be Aware of the NLRB’s Ever Increasing Scrutiny of Employee Handbooks — from Employment Law Lookout

More on anticipatory pregnancy discrimination

Every so often, I write a post that rankles some feathers. Yesterday’s was one such post. Recall that yesterday I discussed a case in which a court concluded that an employer was justified in firing an employee whose pregnancy restrictions rendered her unfit to perform the duties of her job, but that the employer pulled the termination five weeks too early.

That post garnered myriad comments (many of them unkind). Several opined that the case was one of clear pregnancy discrimination. One questioned why the FMLA did not protect this employee. And another called me inhuman, suggested I lack a moral compass, and questioned how I sleep at night.

Given all of the questions raised, I thought it best to follow up with some answers.

1. Is this case the rule or an exception?

This case is the exception. The Pregnancy Discrimination Act, on its face, does not mandate reasonable accommodations for pregnant employees. It merely requires that employers treat pregnant workers no worse than non-pregnant workers with similar medical conditions. So, to determine whether you must accommodate a pregnant employee’s accommodation request, you must ask yourself in what other circumstances have you made accommodations for other employees. As we know, since Congress amended the ADA in 2009, that law’s definition of a “disability” is so broad as to cover most physical and mental impairments as “disabilities.” We also know that the ADA requires employers to offer reasonable accommodations to disabled workers to enable them to perform the essential functions of their jobs. Thus, if an employer has ever offered an ADA-accommodation to another employee, it will likely have to offer to same to a pregnant employee.

In this case, this employer had no examples of ever accommodating a short-term medical issue. Maybe the right questions weren’t asked in discovery to develop these facts. It’s hard to say. But, given the breadth of the definition of “disability” under the ADA, and the affirmative obligation to accommodate such disabilities, the number of employers that have never accommodated an employee will be slim. If this number is slim, so too will be the number of employers who don’t have to offer accommodations to pregnant employees, who must be treated no worse than anyone with a similarly disabling condition. In other words, I think this employer got lucky. But, assuming as true the fact it had no comparable non-pregnant employees, than this employer did nothing legally wrong (except terminate the employee five weeks too early). Thus, based on the specific facts of this case, I believe it is a correct interpretation of Title VII.

2. Why didn’t the FMLA protect this employee?

To be eligible for FMLA leave, an employee must have been employed for at least 12 months prior to the request for leave. In this case, the started working in September 2011, and made her request for time off beginning in June 2012. Thus, as she had been employed for less than 12 months, she was not eligible for FMLA leave.

3. How do you sleep at night (you #%*&^!)?

I sleep just fine, unless I have too much coffee after 8 pm or the dog is snoring.

Nevertheless, firing an employee under these circumstances is risky. You need to make sure:

1. The employee is not FMLA-eligible.
2. You have never accommodated any non-pregnant employees with time off, modified work assignments, or other accommodations to account for similar work restrictions. Otherwise, you would be treating this pregnant employee less favorably than comparable non-pregnant employees, which would constitute pregnancy discrimination under Title VII.
3. If there is ever a time to call you employment lawyer before firing an employee, the circumstances of this case would be that time.

Beware the “anticipatory pregnancy” claim

In Cadenas v. Butterfield Health Care II, Inc. (N.D. Ill. 7/15/14), a federal court asked the question of whether an employer could terminate a pregnant employee on the basis of its inability to accommodate her future pregnancy-related job restrictions. Even though the employee won this battle, the employer really won the war.

Araceli Cadenas worked as a certified nursing assistant at a nursing and rehabilitation facility. Her position required her to pull, push, or lift at least 20 pounds. At her 15th week of pregnancy, Cadenas presented her employer a note from her doctor stating that once she reached the 20th week of pregnancy, she would no longer be able to lift more than 20 pounds. Faced with an employee who soon would be unable to perform the essential functions of her job, the company fired her.

First, the court concluded that that Butterfield had no duty to accommodate Cadenas’s pregnancy-related restrictions.

Meadowbrook was not required to accommodate Cadenas’ physical restrictions—if it would not have accommodated a non-pregnant employee’s similar restrictions—or give her any special treatment, such as light duty, if it would not have afforded that option to a non-pregnant employee. Here, there no evidence that Meadowbrook applied its light duty policy inconsistently to pregnant and non-pregnant employees. Cadenas submits no competent evidence to contradict the fact that Meadowbrook denied both pregnant and non-pregnant employees an accommodation of light duty work unless they had suffered a work-related injury. This neutral policy is not evidence of discrimination.

Thus, without any duty to accommodate, Meadowbrook was entitled to fire Cadenas at her 20th week of pregnancy, because, at that time, she could not perform the basic functions of the job.

The court then turned to the timing of the termination. Was Butterfield justified in firing Cadenas at week 15, even though her restrictions did not take affect until week 20. On this issue, Cadenas’s pregnancy discrimination claim faired much better.

In this case, Meadowbrook never suggested, or provided evidence, that there was any business reason not to let Cadenas work during the five weeks remaining before her restrictions went into effect.… Without any physical restrictions applicable between weeks 15 and 20 of Cadenas’ pregnancy, Meadowbrook has pointed to no non-discriminatory reason for terminating Cadenas effective immediately.… On these facts, a reasonable jury could conclude Meadowbrook terminated Cadenas because of her pregnancy, not because she was subject to any present restrictions.

Thus, Cadenas can take her claim to a jury, but her economic damages are limited to five weeks back pay.

What can we learn from this case?

1. It is okay not to accommodate a pregnant employees’ restrictions, as long as there is no evidence of providing accommodations to other employees with similarly debilitating medical conditions. Given the scope of the definition of “disability” under the ADA, coupled with the ADA’s reasonable accommodation requirements, this might be a high hurdle to overcome, this case notwithstanding. Also, don't forget about the EEOC's recent sweeping Enforcement Guidance on this issue.
2. If a pregnant employee tells you that she will be unable to perform at some point in the future, wait until that time to terminate her. This employer could have saved itself a headache of a lawsuit by waiting five weeks to fire Cadenas. Of course, winning a lawsuit is relative, and if you could made the argument that employer won this case because it limited its potential exposure for economic damages to five weeks' back pay, I would not disagree with you.

[Hat tip: Judy Greenwald at Business Insurance]

LinkedIn’s $6M FLSA settlement provides a good lesson to employers (updated)

LinkedIn will pay nearly $6 million in back pay and liquidated damages to 359 current and former employees following a Department of Labor investigation, reports the DOL.

The employees, reports Business Insider, are commissioned inside salespeople. Typically, inside salespeople are not exempt under the FLSA, and must be paid overtime for all hours worked over 40. If an employee is paid a straight commission, you would, on a weekly basis, divide the commissions paid that week by the total numbers of hours worked to arrive at the hourly rate for that week. You would then multiply that hourly rate by 1.5 to obtain the overtime rate for that week, and pay the 0.5 premium rate on top of the commissions for any hours worked in excess of 40 for that week. LinkedIn says that the violation “was a function of not having the right tools in place for some employees and their managers to track hours properly.” Likely, it had mis-assumed that its inside salespeople were exempt.

This story offers businesses two important lessons:

1. Do not assume that you need not pay overtime to employees who are paid other than hourly. The method of pay is not the only factor that determines whether an employee is exempt. Instead, you must undertake a fact-specific analysis for each employee’s job duties to determine if it falls under one of the FLSA’s narrow exceptions. Making assumptions without taking the time to do the analysis will result in costly wage-and-hour mistakes.
2. If the DOL comes knocking, cooperate. Cooperation helps demonstrate that any errors are sins of omission, not of commission. Ignorance may not excuse FLSA violations, but it will definitely put you in a better light with the DOL than will chicanery. And, if the error is cut and dry, pay. You gain nothing from digging in your heels to fight a clear wage-and-hour mistake, other than incurring a gaggle of legal fees. I’m not saying you should go this alone with legal counsel and guidance, but the lawyer should be guiding you to a resolution, not a costly battle.

You cannot fire an employee who asks for time off for his pregnant wife's medical appointment

One of the very first posts I ever wrote on this blog, all the back in May of 2007, detailed the EEOC’s then-recent publication of enforcement guidance on what it called caregiver discrimination. It seems that more than seven years later, some employers still haven’t gotten the message. Consider, for example, Rice v. Kellermeyer Company (N.D. Ohio 7/15/14).

In early 2012, Ronald Rice, the VP of Sales at Kellermeyer, announced to his co-workers that his wife was pregnant with their first child. On June 6, Rice requested permission to use vacation time from June 11 through June 15, in part because of “an unexpected appointment” for his pregnant wife. Rice’s supervisor declined to permit Rice to use paid leave for June 14 and June 15, and told him that if he “chose to take those days off, they will be unpaid.” Rice then requested FMLA paperwork from the director of human resources, to enable him to attend the appointment. Three days later, he was fired.

With these facts, the district court showed no hesitation in denying the employer’s motion for summary judgment and sending this case to a jury to decide.

In writing about this case on his FMLA Insights blog, Jeff Nowak said, “We have to stop sticking it to pregnant moms and expectant dads.” He’s 100 percent correct. We have a parental crisis in this country. No one should have to choose between a job and “an unexpected appointment” for one’s expectant wife. More broadly, no one should have to choose between a job and a family responsibility or event. 

Employers, we are facing a crisis over the issue of parental leave. The more stories we hear like Ronald Rice’s, the louder the cry will become for Congress to step in and fix this problem legislatively. Do you want new laws passed that will mandate expanded parental leave for more employers, or do you want the FMLA to remain as it is? As long as there exists employers like the employer in this case, the cry for expanded parental leave rights will continue. Eventually, it will become too loud for Congress to ignore. Be proactive with these issues in your own workplace, or Congress will become reactive. The choice is yours.

WIRTW #330 (the “be careful what you post” edition)

You’d think that people would know better than to post a private conversations with one’s attorney over a public social network. Kaiser v. Gallup, Inc. (D. Neb. 7/8/14) (h/t We Know Next) is an ADA case. During discovery, the employer learned that the plaintiff had communicated, via Facebook, with her cousin-lawyer about her termination. The plaintiff claimed that the attorney-client privilege shielded the communications from discovery. The employer argued that the plaintiff waived the privilege through the public nature of the discussion on Facebook. When the plaintiff couldn’t show otherwise, the court ordered the communication to be produced.

No one should ever share confidential information on social media. Posting something on Facebook (or Twitter, etc.) is tantamount to publishing it on the front page of your local newspaper.  If something is a secret, keep it that way by keeping it off social media.

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

Discrimination

• Yes, sexual harassment plaintiff, you can shoot yourself in the foot. Here’s how. — from Robin Shea’s Employment and Labor Insider
• Is it discrimination to favor a workplace shortie (shawtie?) over her male subordinates? — from Eric Meyer’s The Employer Handbook Blog
• Court Upholds $3.7 Million Age Discrimination Verdict Against IBM — from The Employment Brief
• Sexual Harassment Claims May Arise As The Result Of Workplace Affairs — from Atlanta Employment Lawyer Blog
• Employment Law 101: Pregnancy Discrimination — from Texas Employer Handbook
• Do you engage in Ugly-ISM? — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• HR Emoji Etiquette — from The Tim Sackett Project
• The Dark Side of Silicon Valley: A Tech Space-Driven Drug Culture — from TLNT

HR & Employee Relations

• There Are Many Ways to Milk a Cow and Not All Are Protected Trade Secrets — from Trading Secrets
• Bill Introduced in House Would Create Federal Private Right of Action for Trade Secret Theft — from Trade Secrets and Noncompete Blog
• Is Your Non-compete Agreement Enforceable? Not Without a “Reasonable Competitive Interest?” — from Michigan Employment Law Advisor
• What It Will Take to Fix HR — from Harvard Business Review
• Looming labor and employment lawsuits: How do they affect your business? — from Employment Intelligence

Wage & Hour

• Senate Bill Seeks to Change FLSA Overtime Compensation Standards — from Employment Lawyer Blog
• LIRR Strike Averted, but Employers Should Remain Aware of Wage and Hour Requirements When Outside Events Prevent Workers From Reaching the Workplace — from Employment Matters Blog
• Dear Employers: We Have to Stop Sticking It to Pregnant Moms and Expectant Dads — from Jeff Nowak’s FMLA Insights
• Employers are dropping the ball on benefits education — from HR Cafe

Labor Relations

• Labor Unions Want Your Email System Too! — from Troutman Sanders HR Law Matters
• McDonald’s Already Knows How to Manage Its Franchisee Labor Practices — from Harvard Business Review
• Labor Disputes On the Rise in the US — from Blogging4Jobs
• The NLRB decison in Macy's: Resistance is futile. — from Michigan Employment Law Connection
• Top 10 NLRB Issues to Monitor the Rest of the Year — from Labor Relations Today
• How Many Unions Can Your Workplace Support? — from Vorys on Labor

6th Cir. invalidates individual waivers of FLSA collective action participation

The wage-and-hour class or collective action lawsuit is one of, if not the, greatest risk facing employers. Many of these lawsuits are filed by disgruntled ex-employees. And, many employers seek to limit their risk by securing waivers from employees, in which employees covenant not to participate in such a lawsuit, typically in exchange for severance pay or some other consideration. Increasingly, however, these waivers have come under fire.

The most recent attack comes from the 6th Circuit, which, in Killion v. KeHE Distributors (6th Cir. 7/30/14) [pdf], held that severance-agreement waivers of one’s right to participate in an FLSA collective action are invalid.

The key facts of Killion are simple. KeHE distributes specialty ethnic and health foods to retailers. In early 2012, it discharged 69 sales reps as part of a restructuring. KeHE offered a severance package to each affected employee, in exchange for a release a claims, in addition to a promise “not to consent to become[ ] a member of any class or collective action in a case in which claims are asserted against the Company that are related in  any way to [their] employment or the termination of [their] employment with the Company.”  As part of a later-filed FLSA collective action seeking unpaid overtime, the plaintiffs sought to include the 69 laid-off sales reps and invalidate the collective action waivers set forth in their severance agreements.

The 6th Circuit held that the waivers were invalid. It concluded that any agreement that deprives one of his or her rights under the FLSA is invalid. Because the waiver deprived the employees of their right to participate in the collective action, it was invalid.

The employer argued that the at-issue agreement does not deprive anyone of any rights, since each employee is free to pursue and individual claim against the company for FLSA violations. The court, however, was not persuaded. Instead, the court concluded that because each employee’s potential claim for unpaid overtime was relatively small, the only real opportunity to pursue the alleged FLSA violation was via a collective action.

Requiring an employee to litigate on an individual basis grants the employer [a] competitive advantage…. And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.

As the Killion court points out, this decision now creates a split of authority between the 6th other Circuits. The Killion court also pointed out, however, that every other circuit that has decided this issue in the employer’s favor has done so because the agreements also contained arbitration clauses; the agreement in this case lacked that mechanism. It will be interesting to follow if this employer pursues this matter to the Supreme Court, and if that Court is interested in this important issue, or if other circuits follow Killion’s lead in the non-arbitration context.

For now, at least in the 6th Circuit, it appears that individuals waivers of the right to join wage-and-hour collective actions are dead.