We are always being watched—Ray Rice and workplace investigations

On Monday, the NFL indefinitely suspended, and the Baltimore Ravens terminated the contract of, Ray Rice after TMZ published security camera footage of Rice hitting his then-fiancée. What’s surprising about this story isn’t that the footage existed, but that it took the NFL six months to see it and act on it.

We live in a surveilled world. There are an estimated 30 million closed-circuit surveillance cameras in the United States. There are an additional 190 million cell phones with cameras. These numbers don’t account for drones in the sky and other modes of video recording. In total, there exists the potential of 220 million recording eyes watching you at all times.

It is a brave new world of workplace investigations. He-said/she-said has been replaced by “let’s go to the tape.” If you are not considering the possibility (probability?) of an alleged incident between employees having been recorded somehow, by someone or something, you cannot and should not consider your investigation complete. There is no doubt that we have sacrificed a lot of personal privacy in the name of personal security. Employers should be using this to their advantage to leave no stone unturned in uncovering the truth about allegations of harassment and other misconduct.

[Photo by Hustvedt (Own work) [GFDL or CC-BY-SA-3.0], via Wikimedia Commons]

Protected activity doesn’t protect against poor performance

Yesterday brought us two different 6th Circuit cases upholding dismissals of lawsuits in which the employees alleged that their terminations followed their exercise of protected activity.

• In Wilson v. Cleveland Clinic Foundation, the hospital fired a patient transporter for failing to follow proper procedures for moving a post-surgical patient. That incident was not her first breach of protocol, as the hospital had previously suspended her for leaving a corpse unattended in a patient room. She had filed an EEOC charge after the corpse incident.
• In Travers v. Cellco Partnership, the employer fired an employee with a history of performance problems on her first day back from FMLA leave, after she made yet another on-the-job mistake.

These cases illustrate that it is not impossible for fire an employee on the heels of protected activity. In both cases, the court concluded that there existed no factual dispute as to the veracity of the performance problems, and that each was a terminable offense.

“Terminability,” however, is the key. If an employee can show either that stated reason for the termination (1) had no basis in fact, (2) did not actually motivate the employer’s action, or (3) was insufficient to motivate the employer’s action, then the employer cannot prevail on summary judgment.

Consistency is crucial. How did the Clinic and Verizon treat other employees who committed similar violations? If the treatment is consistent, it becomes difficult for the employee to establish either of the three indicia of pretext, even if the termination follows on the heels of the protected activity.

What can you learn from these cases? Protected activity does not per se protect a poor performer from termination, provided that you can demonstrate a history of treating similarly situated poor performers similarly.

Is this the end of the independent contractor as we know it?

In Alexander v. FedEx Ground Package Sys. (8/27/14), the 9th Circuit Court of Appeals concluded that FedEx’s delivery drivers are employees of the company, not independent contractors.

The opinion’s introductory two paragraphs pretty much sum up the entire case:

As a central part of its business, FedEx contracts with drivers to deliver packages to its customers. The drivers must wear FedEx uniforms, drive FedEx-approved vehicles, and groom themselves according to FedEx’s appearance standards. FedEx tells its drivers what packages to deliver, on what days, and at what times. Although drivers may operate multiple delivery routes and hire third parties to help perform their work, they may do so only with FedEx’s consent. 

FedEx contends its drivers are independent contractors under California law. Plaintiffs, a class of FedEx drivers in California, contend they are employees. We agree with plaintiffs.

Even though this case is decided under California law, it confirms that in determining whether one who performs services for pay is an employee or a contractor, the label placed by the company is irrelevant. As noted by the concurring opinion:

Abraham Lincoln reportedly asked, “If you call a dog’s tail a leg, how many legs does a dog have?” His answer was, “Four. Calling a dog’s tail a leg does not make it a leg.” … Bottom line? Labeling the drivers “independent contractors” in FedEx’s Operating Agreement does not conclusively make them so.… [O]ur decision substantially unravels FedEx’s business model.…

This case also confirms that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors. This distinction is important, because, unlike contractors, employee are subject to a host of employment laws, including the anti-discrimination laws, workers’ comp laws, and wage-and-hour (minimum wage and overtime) laws.

While this case only covers employers governed by California law in the 9th Circuit, I would expect the filing of copycat lawsuits under the laws of different states in different courts. In other words, this case is not the final word on this issue. Thus, to answer the specific question I posed in the title to this post, while this case does not necessarily spell the end of the independent contractor, it very well could be the beginning of trend of cases leading down this path.

WIRTW #335 (the “Cutetallica” edition)

“What is Cutetallica”, you ask? It’s my daughter’s latest School of Rock band (earlier, here and here). What else could it be?

If you’re in the Cleveland area over the next three weekends, you have three different chances to see the band.

• September 6 and 13 at the Music Box Supper Club, 1148 Main Ave., on the West Bank of the Flats. Show time, 2 pm.
• September 21, at the Metroparks Chalet, 16200 Valley Parkway, Strongsville. Show time, 4 pm.

If you’re there, please stop by and say hello.

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

Discrimination

• Fair Is Fair: The EEOC Did Not “Botch” Case — via Employment Discrimination Report
• Wal-Mart Shows Employers That Ignoring Sexual Harassment Complaints Don’t Go Away When You Ignore Them! — via The Emplawyerologist
• The Goldilocks Paradigm In RIF Releases — via The Labor Dish
• When training separates the men from the women — via HR Café
• Stress-induced racism – really? — via Employment Law Worldview
• Accommodating Employee Religious Practices: A Nuanced Matter — via Minnesota Employer
• Is the EEOC off the rails with this new “wellness” lawsuit? Don’t think so. — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• “BYOD Bill of Rights” May Help Concerns about Privacy — via Abovethelaw.com
• Court won’t let jury see plaintiff’s trial-victory prediction on Facebook — via Eric Meyer’s The Employer Handbook Blog
• Millennials Increasingly Using Social Media to Challenge Harassment and Discrimination — via WinWinHR
• I Like You, You Like Me, But Companies Don’t Own the “Likes” You See — via All in a Day’s Work

HR & Employee Relations

• Fantasy Football: A Real and Present Danger to the Workplace? — via Dan Schwartz’s Connecticut Employment Law Blog
• Flaw in Employment Background Check Law is Hurting Candidates — via employeescreenIQ Blog
• Casino or Employee? Who Owns the Book of Elite Players? — via Phil Miles’s Lawffice Space
• Why this should worry you. — via Suzanne Lucas at Inc.com
• Gen Y! Start Thinking About Work-Life Issues — via Families and Work Institute Blog
• Auburn Football and HR: Why We Write New Handbook Policies To Police Morons — via The HR Capitalist, Kris Dunn
• Restrictive Covenants: Better To Ask And Disclose — via Trade Secrets and Noncompete Blog

Wage & Hour

• The War of the Wages — via The Sociable Lawyer Blog
• FLSA Exemptions And “Overtime Rights”  — via Wage and Hour Laws Blog
• FedEx Ruling: Form, Rather Than Label, Determines Independent Contractor Status — via In House
• $4.2M Settlement in Wage and Hour Lawsuit — via Overtime Lawyer Blog

Labor Relations

• Kellogg Puts on a Clinic in How to Lock Out Employees — via Matt Austin Labor Law
• Gee Whiz! NLRB says union representative required for urine test. — via Mike Haberman’s Omega HR Solutions
• Button Bans – Be Careful — via Labor & Employment Law Perspectives
• Judge Calls Out NLRB Pro-Union Partisanship — via LaborPains.org
• Fast-Food Strike Follows From Joint-Employer Rumblings — via Labor Relations Today
• US unions are shrinking. These 7 charts show what that means. — via Vox
• What Unions No Longer Do — via Harvard Business Review

6th Circuit agrees to re-hear telecommuting accommodation case

In April, the 6th Circuit issued a decision that recognized telecommuting as a possible reasonable accommodation under the ADA. Work-life balance advocates rejoiced. It seems that their revelry may have been premature.

Earlier this week, that same court agreed to rehear the case — EEOC v. Ford Motor Co. — en banc. Thus, the entire panoply of 6th Circuit judges, and not just a random panel of three, will hear the case anew.

Would the 6th Circuit backtrack on its pronouncement that “[C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home?” Or will the court take issue with the panel’s decision that a fact issue existed over whether physical attendance at the place of employment was an essential function of this plaintiff’s job? Or will the en banc panel reach the same result with a new opinion?

Stay tuned. The outcome of this case will be one of the most significant ADA cases of 2015.

[Hat tip: Robin Shea]

“Wage Theft” is a fraud (or at least a misnomer)

Forgive them, for they know not what they do.

Over on LinkedIn, my friend (and author-extraordinaire of the Connecticut Employment Law Blog) Dan Schwartz wrote a post entitled, Beware: Use of Loaded Term “Wage Theft” On the Rise. 

In that post, Dan called out the use of the phrase, “wage theft.”

It’s time for employers to beware this phrase and fight its usage because, in my view, it’s really an attempt to turn something often unintentional, into something nefarious and intentional.… In other words, the 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.

Dan was kind enough to point out that I covered this issue last year, in a post of my own entitled, Taking issue with the term “wage theft.” Here's what I said:

I have a huge problem with the term “wage theft.” It suggests an intentional 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.… 

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.

There is no doubt that our wage-and-hour laws need to be fixed. But the solution is not to craft heftier penalties for non-complying employers. Instead, we need to update our laws to account for the realities of the modern workplace, one in which the iPhone has replaced the time clock. 

Until Congress gets its act together to amend the FLSA, employee advocates will continue to push the term "wage theft" to drive an agenda. As this turn of phrase gains traction, it will focus attention on whether you, as an employer, are paying your employees correctly. These are expensive crosshairs in which to find yourself. As we round into the final quarter of 2014, make wage-and-hour compliance a priority, if for no other reason that because employees are watching, and no company is 100% error free under the FLSA.

Ohio Supreme Court punts on individual discrimination liability … for now

Earlier this summer, I reported on Hauser v. City of Dayton, which I hoped would answer the question of whether Ohio’s employment discrimination statute still provided for individual liability for managers and supervisors.

Last week, the Court issued its ruling in Hauser, and, disappointingly, punted on the issue. Yes, the employer technically won the case, and the Court held political-subdivision employees (i.e., public-sector workers) are immune from discrimination lawsuits.

On the bigger question, however, of whether Revised Code chapter 4112 imposes liability on managers or supervisors in general, the Court punted. It concluded that it did not have to revisit Genero (the case that originally concluded that 4112 imposes liability on individual managers and supervisors), because the employer in that case was in the private sector. Nevertheless, the Court concluded that its “reasoning in this case calls the Genaro majority’s reasoning into question, particularly its basis for distinguishing the prevailing interpretation of Title VII.”

For now, Genaro and its imposition of individual liability lives to fight another day. Private-sector managers and supervisors can still be sued for their own individual acts of discrimination. Moreover, Ohio employers are now split down public / private lines as to whether managers and supervisors can be held individually liable for discrimination.

Yet, Ohio employers have hope that when presented with the right case, this Court will overturn Genaro and rid Ohio of its anomalous individual liability. Or, Ohio’s legislature can do right by our state’s employers and pass legislation ending this incorrect interpretation of R.C. 4112, which will bring Ohio into line with the discrimination laws of nearly every other state and Title VII.