Recap of #hrintelchat on pregnancy discrimination

Yesterday afternoon, Jeff Nowak and I had a lively tête-à-tête on Twitter—aka the #hrintelchat—on all things pregnancy discrimination. In case you missed it (and given the numbers of folks tweeting along, I’m going to guess that you did), below is a neat little summary of the hour-long tweetfest. The rights of pregnant workers is an important issue that will only get more important and dual-income families and single moms are the rule and not the exception.

Thanks to Thompson HR for the invitation and for hosting. I enjoyed my hour of tweeting (even if my wrists and fingers did not).

#hrintelchat Tweets

Putting paternity leave on equal footing with maternity leave, #hrintelchat

This afternoon, from 3 – 4 pm, EST, I, along with my friend, Jeff Nowak, will be hosting a TweetChat for Thompson Information Services on the “Evolving Rights of Pregnant Employees in the Workplace.” Follow us on Twitter at #hrintelchat, and tweet your questions or comments to @ThompsonHR, @jeffreysnowak, and @JonHyman. We’ll be discussing workplace right and accommodations of pregnant employees. More information is available here.

While our TweetChat will focus on the rights of pregnant women, females aren’t the only ones that have workplace rights when it comes to new babies. According to the New York Times, even though many men have the same right to paternity leave that their female counterparts have to maternity leave, few exercise that right out of fear and stigmatization.

Paternity leave is perhaps the clearest example of how things are changing — and how they are not. Though the Family and Medical Leave Act of 1993 requires companies with more than 50 employees to provide 12 weeks of unpaid leave for new parents, it requires no paid leave. The 14 percent of companies that do offer pay … do so by choice. Twenty percent of companies that are supposed to comply with the law, meanwhile, still don’t offer paternity leave…. And almost half the workers in the United States work at smaller companies that are not required to offer any leave at all.

Even when there is a policy on the books, unwritten workplace norms can discourage men from taking leave. Whether or not they are eligible for paid leave, most men take only about a week, if they take any time at all. For working-class men, the chances of taking leave are even slimmer.

Here are a few “don’ts” to keep in mind in managing new dads in your workplace.

• Don’t forget the men in your workplace when you’re crafting leave policies.
• Don’t deny leaves to new dads doling out post-childbirth leaves of absence.
• Don’t punish those that use those policies and leaves, such as limiting promotions, opportunities, or raises.
• Don’t apply unconscious stereotypes about the dedication or loyalty of men who take leaves of absence for familial responsibilities.

Directing the delicate union decertification dance

It was one of the most tense moments of my career. One for the union, one for the employer. That’s how the folded pieces of paper lifted out of the previously sealed box. I sat in the conference room of my client, a company saddled with a labor union it did not want, and a group of employees, who, feeling the same way, filed a decertification petition with the NLRB. One for the union, one of the employer, all the way to 16 – 16. We all held our breath as the board agent lifted the 33rd piece of paper out of the box, unfolded it, and announced that by a margin of one, my client’s employees were no longer represented by a labor union.

I thought of this story over the weekend as I read in the New York Times that the NLRB had issued a complaint against Cablevision, accusing it of threatening to deny a group of employees a pay raise unless they voted to quit their union, and further accusing it of illegally sponsoring a nonbinding poll to determine those same employees wanted to leave their union.

Decertification is a tricky dance. An employer cannot solicit, support, or assist in the initiation, signing, or filing of a decertification petition by its employees. It can, however, provide “ministerial aid” to its employees in response to their own efforts. The test is whether the specific conduct had “the tendency … to interfere with the free exercise of the rights guaranteed to employees under the Act.” Thus, an employer cannot poll its employees to determine whether they support decertification, nor can it help employees circulate the decert petition. It likely can, however, direct employees to their local NLRB office in response to a question about decertification.

What does an employer’s unlawful assistance of a decertification campaign look like? McKesson Corp. [pdf], decided last week by an NLRB Administrative Law Judge, shows us. In that case, the employer assisted a group of employees (to whom it referred as the “magnificent seven”) to circulate a decertification petition. According to the ALJ:

The credited evidence establishes that these individuals did not act on their own but rather on behalf of management and with management’s assistance…. I find that the respondent had embarked on a plot to rid itself of the union and that the seven individuals collecting signatures were part of the plot.

Employers need to be mindful of the distinction between unlawful solicitation, support, or assistance, versus lawful ministerial aid. Critically, employers cannot interject in a decertification campaign. If you have any doubt on where the line is in your case, consult with your labor counsel to avoid a costly error.

WIRTW #344 (the “potty police” edition)

Do you know what rights your employees have to use the bathroom at work? Earlier this morning, Adrienne Mitchell and I discussed that very issue on Marketwatch Radio. You can listen here: When nature calls, does your boss answer?

---

On November 11, from 3 – 4 pm, Jeff Nowak and I will be hosting a TweetChat on the evolving rights of pregnant employees in the workplace. Follow along and participate with the hashtag, #hrintelchat. We’ll talk to you then.

---

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

Discrimination

• Do Accused Harassers Have a Right to Be Heard? — via Employment Discrimination Report
• EEOC: trolling for plaintiffs — via HR Hero Line
• Employer to Forego Inflexible Leave Policy in Settlement of ADA Lawsuit, EEOC Announces — via Joe’s HR and Benefits Blog
• Employee Retaliation Claims Continue to Rise — via Southwest Florida HR Law & Solutions
• EEOC Targeting Wellness Programs — via Workplace Prof Blog
• EEOC Part of Increasing Focus On LGBT Issues — via The National Law Forum
• Knowledge and consistency—Keys to following the prohibitions of Title VII — via InsideCounsel
• Under the ADA, is talking an essential job function for an HR Specialist? — via Eric Meyer’s The Employer Handbook Blog
• Racial talk at work? Beware of reverse discrimination. — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Social Media, The Workplace and the Enforcement Agencies Circus — via Next Blog
• Following Conditional Certification, Court Permits Notice Via Social Media — via Overtime Law Blog
• How to stay anonymous online — via Boy Genius Report
• How Many Policies Can a Worker Violate with One Selfie? — via HR Daily Advisor
• Social media at work: concerns, implications, and best practices — via Technology for HR
• The Internet of Things and Employee Management — via Blogging4Jobs
• Your Workplace Is Going Viral #AlexfromTarget — via Dan Schwartz’s Connecticut Employment Law Blog
• Three Tips for Protecting Your Electronically Stored Confidential Information — via Molly DiBianca’s

HR & Employee Relations

• What HR Will Never Tell You — via The Boss Show (with guest Suzanne Lucas, the “Evil HR Lady”)
• Engaging Your Older Workers — via Harvard Business Review
• How And Why You Should Bring Kids Into The Workplace — via Fast Company
• Businesses must adapt to multigenerational workforce — via The Tennessean
• A Millennial Twist: LinkedIn Pushing Bring Your Parents to Work Day — via TLNT
• The FCRA is the new FLSA — via Employer Law Report
• Future Friday: Monitoring employee well-being by testing their sweat — via Mike Haberman’s Omega HR Solutions
• Should Employers Require Intellectual Property Agreements? — via Evil Skippy at Work

Wage & Hour

• Morgan & Morgan: For The Overtime — via Walter Olson’s Overlawyered
• Motion To Dismiss FLSA Collective Action On Pleadings Fails: An Interesting Tactic — via Wage & Hour - Development & Highlights
• Eleventh Circuit Upholds District Court’s Rejection of Challenge to Employer Records — via Wage and Hour Law Update
• Employee Wins Cross-Country Wage War Against CEO — via Suits by Suits
• Reducing Intermittent FMLA Leave at Work — via Employment Law Bits
• When an Employee Requests FMLA Leave for a Workplace Injury, Is the Employer Required to Report it as an OSHA Event? — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB’s Murphy Oil Decision Reaffirms Board’s Position on Class or Collective Action Waivers Despite Rejection by Federal Courts — via Employer Defense Law Blog
• Has the National Labor Relations Board opened “Pandora's Box”? — via msnbc.com
• NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity — via Labor Relations Update
• Facebook Posts too Insubordinate, Lose NLRA Protection — via Phil Miles’s Lawffice Space
• Another Established Labor Rule Bites the Dust — via Matt Austin Labor Law
• NLRB Revisits the Definition of an Independent Contractor — via TLNT
• NLRB Attempts to Make an End Run Around Courts Invalidating its Rulings on Arbitration Agreements — via Stoel Rives World of Employment

Not all speech on social media is protected

I’ve spilled a ton of ink over the past few years warning employers about the risks and pitfalls that lurk in attempting to act against an employee for work-related comments on social media. Not all online speech, however, is protected, as two recent cases illustrate.

In Ames v. Ohio Department of Rehabilitation & Correction (Ohio Ct. App. 10/28/14), a parole office posted the following on her personal Facebook page:

I’ll gimp into work tomorrow. I guess I could just shoot them all ... lol!

Yo! Thanks neighbor. I’ll gimp into work tomorrow. I guess I could just shoot them all … ARE YOU KIDDING ME? ‘MEANING I CAN’T CHASE THEM!’ OH MY GOD! YOU PEOPLE REALLY DO NEED A LIFE! LIKE NO LAW ENFORCEMENT OFFICER ‘EVER’ MADE THAT TYPE OF COMMENT. YOU MAKE ME LAUGH OUT LOUD!

Troubled by these comments, the ODRC sent Ames for three different independent medical examination, and ultimately terminated her. The appellate court dismissed her disability discrimination claim, concluding that: 1) the mere fact that an employer sends an employee for an IME does not mean that the employer regarded the employee as disabled; and 2) regardless, “posting a vulgar, threatening statement toward a co-worker under her supervision” is a legitimate, non-discriminatory reason to terminate.

Richmond District Neighborhood Center (NLRB 10/28/14) [pdf] concerned the following Facebook exchange between two teen center employees:

Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like bein their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money…. They dont appreciate shit. Thats why this year all I wanna do is shit on my own. have parties all year and not get the office people involved….

hahaha! Fuck em. field trips all the time to wherever the fuck we want!

When a co-worker sent screenshots of the conversation (which included a student), the teen center rescinded its re-employment offers to the two employees. The NLRB had little trouble concluding that these posts were unprotected insubordination, not protected concerted activity:

Callaghan and Moore’s lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail. We are not presented here with brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation. The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.

From these two examples, we glean that, indeed, there exists a line between protected online speech and unprotected threats, harassment, or insubordination. The difficult task is figuring out where that line is, an issue that will continue to develop, and bears watching, as more employees take to the social-sphere to air workplace grievances.

The New Kid says thank you @rhettmiller — #NailedIt

One of the benefits of maintaining this very public forum is having the opportunity to share with you some personal insight into my family. For example, you know that my 6-year-old son deals with some life-long medical issues, and that my 8-year-old daughter plays rock music. Today is one of those days that I get to share some family stuff, this time of the insanely cool variety. So sit back and relax—no employment-law lessons. Today is a straight up rock-and-roll story.

My daughter’s favorite band is the Old 97’s. You can read the whole history here. Sunday night, my wife and I took Norah to see Rhett Miller, the band’s lead singer, perform a solo gig at the Music Box Supper Club. (Side note: if you’re anywhere near Cleveland, do yourself a favor and catch a show at the Music Box. Mike and Colleen built an amazing venue, with great sound, sight lines, and food; they deserve your business). Front row seats for the Hymans.

Norah’s third-grade class is learning how to write personal narratives. Her first story for the school year was all about going to see the Old 97’s in June and meeting Rhett backstage before the show. He was gracious and kind, and clearly made a big impression on a girl of her size.

Norah wanted to give Rhett a copy of her book at Sunday’s show, and asked if I could tweet Rhett to let him know. So I did. I didn’t get any response (nor did I expect one), and tried to temper Norah’s expectations about Rhett remembering her. But it’s hard to temper an 8-year-old.

There we are at the show, our table abutting the front of the stage, Norah no more than three feet from her idol. Did Rhett remember Norah? Of course he did. He spent his first moment talking to the crowd to say a personal hello to her (while making apologies for some of his songs’ more saltier language). And the show went on, Norah in her seat, right in front of Rhett, singing along to all of her Old 97’s favorites.

During the show, Rhett leaned forward and asked Norah if she knows Fireflies. For those who don’t know Rhett’s catalogue, Fireflies is a beautiful (if a tad biting) duet sung with a female. Historically, when Rhett performs this song live he brings someone from the audience up on stage to sing the female part. Needless to say, the song works much better if the person knows it. When Rhett asked Norah if she wanted to sing Fireflies with him, she had to decline, because she didn’t know it nearly well enough to sing it in front of a crowd. Rhett told her to practice, and they would sing together on his next visit to the Music Box.

And the show goes on. After dueting Over the Cliff with opening-act Jon Langford (whom I really enjoyed), Rhett noticed the similarities between that song and the next on his set list, Let’s Get Drunk & Get It On, so much so that he could not get into the song without confusing the two. He needed a “palate cleanser,” as he put it, and asked Norah for a request. She chose The New Kid, the song that started her Old 97’s obsession. Rhett enthusiastically launched into the song.

After finishing the first verse, and watching Norah belt away from her in front of him, Rhett leaned forward and asked if she wanted to come on stage and sing the rest of the song with him.

This is what happened next:

Rhett put it perfectly after Norah finished — #NailedIt! (Stick around to the end of the video to see Norah give Rhett the copy of her book, and thanks to Marie Popichak for capturing and sharing).

The show ends, and Rhett hands Norah the set list (which you Old 97’s/Rhett fans know is a thing and a big deal). And, sure as you know it, there is Fireflies, with “(NORAH?)” inked in right next to it.

Not only did Rhett remember meeting Norah in June, he pre-planned a duet with her!

Rhett, you are one of a kind. From the bottom of our hearts, thank you for caring enough to turn a special night for our little girl into an absolutely unforgettable one. You undeniably rock in all the ways that matter, and represent the hope that one can be both a celebrity and a good person.

We’ll see you next time you’re in town. Norah’s working on Fireflies, just in case.

@rhettmiller and one of the sweetest onstage moments ever. Norah requested New Kid & sang 2nd verse like a rockstar! pic.twitter.com/yje3ZN2lcd

— Kristie Gripp (@Tippy13) November 3, 2014

“I honestly bet you’re big down there.” SNL tackles workplace diversity training.

NBC does itself a disservice by running classic episodes of Saturday Night Live each week, because the old episodes merely reinforce that the new episodes are longer appointment viewing. But, this sketch on diversity training (spoofing some very bad VHS videos you hopefully didn't use during the last millennium) from this past week’s episode made me laugh pretty hard. Enjoy.