WIRTW #341 (the “impeachment by blog” edition)

I’ve been blogging for more than seven years, and I’ve never had opposing counsel try to impeach one of my clients with something I’ve written on this site. Overlawyered brings us a story from Abnormal Use of an attorney-blogger whose opposing counsel did attempt to impeach via the blogger’s posts. It did not end well for the impeacher. This is absurd and offensive, and I would not stand for it in a hearing of deposition of mine.

Lawyer readers, have you ever had this happen to you? And, if so, how did you handle it? Let me know in the comments below.

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The Manpower Employment Blawg presents this month’s Employment Law Blog Carnival: Halloween Edition. Please click over to read the best of the employment law blogosphere from the past month (including one from yours truly).

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

Discrimination

• EEOC Sues FedEx for Discriminating Against Deaf Employees — via In House
• Getting fired for bringing a gun to work probably isn't discrimination — via Eric Meyer’s The Employer Handbook Blog
• Good documentation pays off! Not once but TWO times — via Mike Haberman’s Omega HR Solutions
• Ending Gender Discrimination Requires More than a Training Program — via Harvard Business Review
• Black Supervisor Remarks He Has “Too Many Black” Employees; Employer Loses Motion For Summary Judgment — via The Employment Brief
• Is It Harassment To Tell An Employee To “Pull Her Own Weight”? — via Evil Skippy at Work
• Do “Engaged” Employees File Fewer Charges? — via Employment Discrimination Report

Social Media & Workplace Technology

• Four Things To Do Now BEFORE An Employee Data Breach — via Dan Schwartz’s Connecticut Employment Law Blog
• Banning Employers from Asking for Social Media Passwords is Stupid — via employeescreenIQ Blog
• Should Your BYOD Policy Ban Third-Party Keyboards? — via Blogging4Jobs
• LinkedIn Sued for Furnishing Reference Reports on Users — via Law.com
• Using Social Media as a Screening Tool for New Hires — via Attorney at Work

HR & Employee Relations

• Ebola and Employer Liability Issues — via Employment Law Lookout
• Staying Calm and Prepared for Potential Workplace Ebola Issues — via TLNT
• EBOLA and Employer Liability Issues — via Environmental & Safety Law Update
• Apple and Facebook are now paying for women employees to freeze their eggs — via The Verge
• Eggs in the workplace — via Robin Shea’s Employment & Labor Insider
• Should My Business Use an Arbitration Agreement for Employment Disputes? — via Michigan Employment Law Advisor
• 5 Ways to Make Your Employees Love You — via Evil HR Lady, Suzanne Lucas
• Lessons from the Ryder Cup: don’t blast the boss in front of a world-wide audience — via Employment Law Worldview

Wage & Hour

• DOL Makes It Official: New FLSA Regulations Delayed Until 2015 — via Wage & Hour Insights
• Wage and Hour Division Releases Enforcement Statistics — via Wyatt Employment Law Report
• An Explainer: NFL Cheerleader Lawsuits — via On Labor

Labor Relations

• NLRB Toasts Chicago Bakery On English-Spanish Translation — via The Labor Dish
• NLRB Wins Reversal of Section 10(j) Ruling; Trial Court Denied Bargaining Order Remedy Bloomberg BNA

When #Ebola impacts your workplace

If you employ people at Cleveland Hopkins Airport, Frontier Airlines in Cleveland, or Kent State University, congratulations, you’re among the first non-healthcare employers to have a potential Ebola exposure. Now, what do you do?

First things first, don’t panic. Instead, take a deep breath … and think.

Employers must consider what they should do in the event that an employee is potentially exposed to the virus, or otherwise has  been in a high risk area. The definition of “high risk area” is very much in flux. Two week ago, it was Western Africa. Last week, the definition expanded to a Dallas hospital. Now, it’s Cleveland’s airport, a local university, and a couple of our local hospitals.

So, what do you do?

1. Have an action plan for disease prevention. This plan could include action items such as travel restriction to high risk areas, and providing information and training to employees, along with protective gear or hand sanitizer .

2. Have a response plan for specific employees who are suspected to, or actually do, pose a risk to others because of a viral exposure. Because of the ADA, employers have certain limits on their ability to ask medically-related questions, even when dealing with something as critical as Ebola.

• Questions about travel are not disability-related. Therefore, the ADA places no limits on an employer’s ability to inquire about an employee’s travel to gauge potential exposure and risks.

• Questions about diseases or exposure thereto are, however, disability-related. The ADA  does permit an employer to request medical information when the employer has  a reasonable belief that an employee will pose a “direct threat” because of  a medical condition. A potential exposure to Ebola could constitute a direct threat, though employers must be careful to avoid unlawful stereotypes or generalizations, as opposed to acting on actual, objective evidence.

• The CDC has published monitoring guidelines for individuals who have traveled to a country experiencing an Ebola outbreak, or otherwise have been potentially exposed to the disease. These guidelines depend on exposure levels and visible symptoms.

  • Individuals who exhibit symptoms consistent with Ebola, or who develop Ebola-like symptoms at work, should seek medical evaluation, regardless of any known exposure, and should limit activities and contact with others until medically cleared.

  • Asymptomatic individuals who have had no known exposure should self-monitor for symptoms for a 21-day period (the known incubation period for the disease). During that time the CDC recommends that an individual “may continue normal activities, including work.” 

  • Asymptomatic individuals who report possible contact with an infected individual should stay home until medically cleared to return to work. While an employer is not required to pay the employee for this time off, under the circumstances it would be an appropriate gesture. By way of example, both the Cleveland Clinic and MetroHealth are paying the 13 nurses who flew from Dallas for their quarantined time off.

There is a big difference between vigilance and panic. The key for employers in dealing with Ebola is to understand the former while not falling susceptible to the latter.

Two all-beef patties, special sauce … and a noncompete?

While the law of noncompete agreements is state-specific, generally you need three things to enforce such an agreement: reasonableness as to the duration of the agreement, reasonableness as to its geographical scope, and reasonableness as to the interest the employer is attempting to protect. So, what’s so special about a fast-food worker that merits the protection of a non-competition agreement? That’s the question an Illinois federal court is going to answer in Brunner v. Jimmy John’s Enterprises, Inc.

According to The Huffington Post, a Jimmy John’s franchise in Niles, Illinois, requires all of its employees to sign a Confidentiality and Non-Competition Agreement as a condition of employment. The agreement prohibits the employee, for two years following employment at Jimmy John’s, from working at any business within three miles of any Jimmy John’s that derives at least 10% of its revenue from sandwiches

Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after … he or she will not have any direct or indirect interest in or perform services for … any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located with three (3) miles of either [the Jimmy John’s location in question] or any such other Jimmy John’s Sandwich Shop.

It’s one thing to bind your managers and other high-level employees to a noncompetition agreement. It’s another to require the same of your low-level sandwich makers and cash-register operators. The lower down the food chain you move, the harder it becomes to enforce these agreements. If these employees received specialized training, or if the employer was protecting customer goodwill, the employer would have a better chance in enforcement. But we’re talking about sandwiches. What’s the legitimate business interest this employer is trying to protect?

Employers, use some discretion and common sense. Narrowly tailor your noncompete agreements to the specific interests you are trying to protect. And, if you don’t have such an interest, forego the agreement altogether for that employee or group of employees. Otherwise, you will spend gaggles of money attempting to enforce an unenforceable agreement.

Do personality tests pass the ADA-compliance test?

The ABA Journal (hat tip: Overlawyered) is reporting that the EEOC is investigating whether several well-known companies are violating the ADA by using pre-employment personality tests to screen applicants.

I cautioned employers about this issue three years ago. This is what I said.

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Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. 

The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

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What does all this mean? The use of personality tests raises complex legal and business issues, even more so now that this issue is on the EEOC’s radar. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.

“Faithfully” considering performance obligations in employment contracts

Ken Adams, writing at his always insightful blog, Adams on Contract Drafting, comments on the use of terms such as “faithfully” to describe an employee’s performance obligations in an employment agreement. Ken concludes that terms such as faithfully, diligently, competently, industriously, etc., are too wishy-washy to be of any practical use. Instead, he suggests that you “be as specific as possible regarding an employee’s duties”—

For lack of anything more tangible, drafters throw in faithfully and the like. But I don’t think it does any good. In a contract you might well say that the employee is obligated to perform duties specified by the CEO (or, in the case of the CEO, by the board of directors), is obligated to work full-time, and can be fired for specific transgressions. Beyond that, you face the question of whether the employee will do a good job and be successful. Unless you come up with quantifiable targets, imposing on an employee an obligation to be successful wouldn’t work. So drafters make impotent gestures in that direction—that’s where faithfully comes in.

Even though I agree with Ken, terms like “faithfully” do serve a legal significance in employment agreements. They intend to impose a heighted (or fiduciary) duty of performance upon the contracting employee. Unless a contract provides otherwise, an employee might now not owe a fiduciary duty to his or her employer. In many circumstances, employers want to ensure that they impose this obligation on managers and other higher-level employees. Thus, they use terms like “faithfully” to legally bind the employee to a heightened performance obligation.

The, problem, however, is as Ken points out. Performance obligations such as “faithfully” are too vague and subjective to be of any practical use. Sure, a court might use that word to impose a fiduciary duty, but a court could just as easily strike it for vagueness. Instead of using these indefinite terms of art that do not provide the employer or the employee any practical on-the-job guidance, employers should tie the obligations to specific performance standards. Consider the following example:

Employee shall devote all of his/her working time, attention, knowledge, and skills to Employer’s business interests and shall do so in good faith, with his/her best efforts, and to the reasonable satisfaction of the Employer.

Employee agrees to refrain from any interest, of any kind whatsoever, in any business competitive to Employer’s business. The Employee further acknowledges s/he will not engage in any form of activity that produces a “conflict of interest” with those of the Employer unless agreed to in advance and in writing. 

The Employee understands that failure to reach benchmarks or performance terms provided by the Employer may result in reassignment, demotion, or termination. Employee further understands that reaching these benchmarks or performance terms constitutes a reasonable and substantial condition of employment, but does not in any way guarantee or promise continued employment.

As for “faithfully,” I recommend we stick to cheesy soft-rock ballads.

WIRTW #340 (the “punting” edition)

The federal court that recently announced its intent to dismiss the EEOC v. CVS severance agreement case has finally issued its written opinion … and the court did not reach the key issue in the case. Instead, the court dismissed the EEOC’s lawsuit based solely on its failure to conciliate with CVS prior to filing suit. So, it’s back to the drawing board for employers hoping for some concrete guidance on the legality of myriad garden-variety severance agreement provisions, which may come from a similar lawsuit the EEOC is pursuing in Colorado. You can more on the background of this story here and here.

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

Discrimination

• An employer should never ask about disability or religion. Except when it should. —Robin Shea’s Employment & Labor Insider
• You’re More Biased Than You Think — via Fast Company
• Weight Discrimination Is Surprisingly Rare, Study Finds — via Discovery
• Age Discrimination In Finland – Suffered Most By Those … Under 30? — via Employment Discrimination Report
• EEOC and wellness programs: Looking for “just right.” — via Michigan Employment Law Connection
• Remember that a duty to accommodate may exist after childbirth — via Eric Meyer’s The Employer Handbook Blog
• The EEOC’s Litigation Scorecard For FY2014 – What Does It Mean For Employers — via EEOC Year-End Countdown
• Should ADA protections apply to pedophiles? — via ABA Journal Daily News

Social Media & Workplace Technology

• Employees Can Break Data Privacy Rules Too — via Dan Schwartz’s Connecticut Employment Law Blog
• Even If You Don't Use Social Networks, They Still Know Stuff About You — via Lifehacker
• Union access to employer’s e-mail systems: Are times a-changin’? — via Technology for HR
• Workplace Trends: The Office Telemedicine Kiosk — via Workplace Diva

HR & Employee Relations

• Is your workforce knowledgeable about Ebola … and should it be? — via Employment Law Matters
• When “The End” Is Not “The End”: Asserting Trade Secret Claims After The Execution of a Mutual Release — via Trading Secrets
• Breaking Bad: Disciplining employees for off-duty conduct — via EntertainHR
• Further Thoughts on the “CEO Dads”: Schireson and El-Erian — via Fathers, Work and Family
• Breast Cancer Awareness Month and HR — via Fistful of Talent
• What To Do When You Don't Have a Policy in Place — via ERC Insights Blog
• Bullying in the Workplace: New Laws or Stronger Employer Policies? — via Smart HR Manager

Wage & Hour

• The Secret Life of Equity Compensation at IPO — via Compensation Café
• Ignoring the FLSA: Another case of Stupid HR — via Mike Haberman’s Omega HR Solutions

Labor Relations

• NLRB General Counsel and Company Seek Detailed Financial Accounting in Beck Disclosure, NLRB Members Say No — via Matt Austin Labor Law
• NLRB Finds FedEx Drivers to be Employees–Not Independent Contractors — via Wyatt Employment Law Report
• NLRB Refines Its Test for Independent Contractor Status — via Labor Relations Update
• Cursing, fighting, and screaming could be protected under the NLRA — via HR Hero Line

Are post-work security checks compensable? #SCOTUS and Integrity Staffing Solutions v. Busk

Yesterday, the Supreme Court heard oral argument in its first employment law case of this term, Integrity Staffing Solutions v. Busk.

To wage-and-hour geeks (like me), this case presents an interesting issue under the Fair Labor Standards Act: whether the FLSA entitles hourly employees to be paid for post-shift time spent undergoing mandatory security screenings. The case was brought by two employees of a warehousing company that was having employee theft problems. To combat the issue, the company implemented mandatory (and unpaid) post-shift security checks, which included passing through metal detectors, which kept employees at the plant for up to 30 extra minutes.

FLSA, as amended by the Portal-to-Portal Act, generally precludes compensation for “preliminary” (pre-shift) and “postliminary” (post-shift) activities, unless the activities are “integral and indispensable” to an employee’s principal activities. To be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In this case, the 9th Circuit held that the security screenings were “integral and indispensible” because the company required them “to prevent employee theft, a concern that stems from the nature of the employees’ work.” In so ruling, the court distinguished cases involving non-compensable pre- and post-shift screenings at airports and nuclear power plants, which did not benefit the employer because they were otherwise mandate by federal law.

In its brief, the employer argued that the screenings take place away from the work area after the workday, and did not affect their work activity of pulling product off shelves. The employer also argued that the unpaid screenings are no different than unpaid time walking from their cars, through the parking lot, and into the warehouse. Contrarily, the employees argued that the employer’s required security screenings, for which the employees had no choice, triggered a legal duty to pay.

During oral argument (transcript) the conservative wing of the Court seemed to advocate for a narrow interpretation of “principal.”

Chief Justice Roberts: But no one’s principal activity is going through security screening.  The employer doesn’t hire somebody, I need somebody to go through employee screening.  He hires them to do something else…. You’re saying everything that is related somehow to the job is principal. I would have thought principal has to do with things that are more significantly related.

Justice Alito: You wouldn’t pay anybody just to come in and go through security.

Meanwhile, the more employee-friendly Justices attempted to argue that because “inventory control” is “important” to the business, it is integral and indispensable:

I mean, what makes it Amazon? It’s a system of inventory control that betters everybody else in the business. And what’s really important to Amazon is that it knows where every toothbrush in the warehouse is. And that’s just as integral to what Amazon does and to what it requires its employees to do….

In handicapping this case, you have to keep in mind that earlier this year, this same Court, in Sandifer v. U.S. Steel, decided that the time spent putting on and taking off certain protective gear is not compensable. While Sandifer is a different case, decided under a collective bargaining agreement, I would be surprised, especially given the tenor of oral argument, if the employees walk away from Busk with a win. This case will hinge on whether the security screenings are key to the nature of the employment. I, along with what I perceive as a majority of the Court, believe that the employer has the better of this agreement. We’ll find out for sure early next year when the Court issues its opinion.