The 12 Days of Employment Law Christmas (2014)

For the past two Noels, I published “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2014, and happy holidays, regardless of your holiday of choice.

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(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets,
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Merry Christmas!

Feds impose LGBT affirmative action on federal contractors

If you are a federal contractor of subcontractor, in four months you will have new affirmative action obligations relating to sexual orientation and gender identity.

According to a Final Rule issued last week by the Office of Federal Contract Compliance Programs, beginning  April 5, 2015, federal contractors and subcontractors must include federal contractors and subcontractors must include sexual orientation and gender identity in their affirmative action plans.

According to the Rule, which implements Executive Order 13762, federal contractors and subcontractors must:

• Take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
• Include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
• Update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
• Post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Notably, and different than affirmative action for other protected traits, the Rule does not require contractors to set placement goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze any data on these bases (although the OFCCP will consider statistical and non-statistical data in determining whether contractors have met their nondiscrimination obligations).

While Congress continues to drag it feet  on ENDA, the Obama Administration continues to do what it can to extend equal employment opportunity for all.

Adverse actions come in all shapes and sizes

Consider these facts, taken from Kudla v. Olympic Steel (Ohio Ct. App. 11/20/14). Employee, age 65, is fired from his job as part of a corporate reorganization. Employer has a change of heart, however, and rescinds the termination after Employee lawyers up and alleges age discrimination. He claimed, however, that his employment following his rehire was substantively different, including a forced move out of his prior office into a cubicle, the exclusion from meetings, and the placement on surveillance.

Based on these facts, the court of appeals had little problem deciding that the trial court should have allowed Kudla to present his claim to a jury:

He contends that he was essentially demoted and cites in support of his contention, for example, that many of his responsibilities, except clerical ones, were reassigned to his younger coworkers, and that he was moved out of his office into a cubicle.

Olympic Steel, on the other hand, denies Kudla's demotion claim and cites that his pay was not reduced, his job title did not change, and he still performed important work for the company. The company also contends that putting Kudla in a cubicle was a temporary situation necessitated by the reorganization of the human resources department; as part of the reorganization, Kudla no longer needed to discuss personal, confidential information with employees and managers and, thus, he did not need an office….

[W]e find that a genuine issue of material fact exists as to whether Kudla did suffer an adverse employment action.

It is not impossible to terminate, or otherwise take an adverse action against, an employee on the heels of protected activity. Moreover, something as innocuous as moving an employee out of his office could be deemed sufficiently “adverse” to support a retaliation claim.

Bad employees cannot bulletproof themselves merely by complaining about discrimination. However, you must have a rock-solid legitimate non-retaliatory and non-pretextual reason for your action to survive the lawsuit that is likely to follow.

The NLRB was a busy beaver last week

Late last week, the NLRB made huge news. In Purple Communications, the NLRB ruled that employees have a right to use their employers’ email systems during non-working time to communicate about union issues. For more on this case, I suggest checking out the write-ups by my friends Dan Schwartz and Seth Borden, both of whom did an excellent job summarizing the decision and its import.

In response to Purple Communications, employers should be reviewing, and, if necessary, revising, their email and electronic-communications policies to ensure that they do not prohibit employees from engaging in conversations about union issues during non-working time.

To cap its week, the Board next issued its rules for ambush elections in representation proceedings.

While the email ruling is the sexier of the two issues, the election rules will likely have the more significant impact on your business. In fact, I agree with Eric Meyer that Purple Communications is not that big of deal. Yes, it is troubling that the NLRB is ignoring the property rights employers have in their own email systems. But, in reality, I wonder if employees are using their company’s email systems for this purpose. There are so many other modes of communications available to employees. They can text each other. They can message on Facebook. The fact is that unions are increasingly more technologically sophisticated in their organizing tactics, and I wonder how many are relying on corporate email systems for communication. Moreover, if employees are using your email systems for organizing, then you have the right and the ability to read those emails. If you can have access to unions’ organizing secret sauce, is this access all that bad for employers.

In response to the election rules, employers need to adopt what I call the “TEAM” response to union organizing:

• Train supervisors
• Educate employees
• Accessibility
• Modernize policies

You can read more about this philosophy of union avoidance here. The point is that once a union files its petition seeking a representation election, you will have scant time to respond. You will not have time to launch a full-blown counter-campaign. If your supervisors do not know how to spot potential organizing before it becomes an issues, and if you don’t have a game plan in place long before its needed, you will have a difficult, if not impossible, time engaging in a meaningful response to the union. If you can’t effectively communicate your message to your employees, you will have a difficult time convincing those employees to vote against the union.

WIRTW #348 (the “blackheart” edition)

Twice a year, my kids’ school invites any students in grades K – 5 who take private music lessons to perform in a recital for the entire Lower School. On Thursday, 16 students displayed their musical talents. We heard Christmas carols, standards, and classical pieces. And then Norah took the stage with Joan Jett’s Crimson and Clover:

If you're in Cleveland, you can see Norah perform this (and other Joan Jett songs) with her full band on Sunday, January 18 and Saturday, January 24, at the Music Box Supper Club.

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Have you voted yet for this year’s ABA Blawg 100? You have until Dec. 19 to cast your vote here.

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Here’s what I read this week:

Discrimination

• The “Association” Game: How a Spouse’s Cancer May be Covered by the ADA — via Dan Schwartz’s Connecticut Employment Law Blog
• Role reversal! EEOC must disclose its own background check policy to the employer it's suing — via Eric Meyer’s The Employer Handbook Blog
• ENDA Getting a Turbocharge — via Wisconsin Employment & Labor Law Blog
• What Not to Do If an Employee Requests an Accommodation — via Blogging4Jobs
• White People and Political Correctness — via Fistful of Talent
• Is It Religious Discrimination To Have A Christmas Tree At Work? — via Evil Skippy at Work
• The Origins of Sexual Harassment — via Workplace Prof Blog
• Is a dumb joke sexual harassment? — via Evil HR Lady, Suzanne Lucas
• Expand pregnancy-bias law to include accommodation rights? — via Walter Olson’s Overlawyered
• Does Title VII Prohibit Sexual Orientation/Gender Identity Discrmination? Definitely, Maybe. — via The Emplawyerologist

Social Media & Workplace Technology

• Instagram is now bigger than Twitter — via The Verge
• Lawyers Left to their Own Devices — via Clio

HR & Employee Relations

• Man has 8 minutes to convince prostitutes to quit in new reality show — via Entertainment Weekly’s Ausiello Files
• FTC and EEOC Publish Background Check Guide for Job Applicants — via EmployeeScreenIQ Blog
• Why would I want to offer a severance benefit to a terminated employee? — via Employment Law Bits
• 10 oddest Christmas and holiday gifts given by co-workers, says Harris Poll — via Cleveland.com
• Can you keep your HR lady from moonlighting as an exotic dancer? — via Mike Haberman’s Omega HR Solutions

Wage & Hour

• The Changing Face of Paid-Time-Off ERC Insights Blog
• Buccaneers Will Stop Using Unpaid Homeless People To Sell Beer — via Deadspin
• States With Pro-Employee Laws: No Use-It-Or-Lose-It Vacation — via Donna Ballman’s Screw You Guys, I’m Going Home
• When an Employee Falls Off a Ladder at Work, is His Absence Covered by FMLA? An Employer's Misstep Discussed… — via Jeff Nowak’s FMLA Insights
• Unanimous Supreme Court Rules Employer Need Not Pay for Worker Security Screenings: Integrity Staffing Solutions, Inc. v. Busk— via Wage & Hour Insights

Labor Relations

• NLRB Again Attempts to Invalidate Mandatory Arbitration Clauses for Employment Claims — via Employment Matters Blog
• Senate Confirms New Member of the National Labor Relations Board — via TLNT
• NLRB: Mercedes Violated Labor Law by Restricting Distribution of Union Material — via Joe’s HR and Benefits Blog
• Board ALJ Hits Walmart With ULPs — via Labor Relations Today

Even Santa needs an employee handbook

The Christmas season is upon us, which means that the elves are hard at work deep inside the confines of the North Pole’s buildings preparing gifts to load onto Santa’s sleight for his Yuletide trip around the globe. Pop culture, such as Rudolph the Red-Nosed Reindeer and Elf, portrays Santa’s workshop as a happy, jolly place, where the elves gleefully craft toys all hours of the day and night, with not even a whisper of discontent.

Someone (or, more accurately, some elf), has squealed.

The North Pole Employee Handbook: A Guide to Policies, Rules, Regulations and Daily Operations for the Worker at North Pole Industries was allegedly found in “the vast confines of a Newark warehouse used to store elf clothing for Christmas displays.” It appears that all is not candy and carols at the North Pole.

For example:

• Employees are called “cogs.”
• Humans are not discriminated against in employment, as long as they are nimble, quick, and speak in high-pitched voices.
• Cogs receive unpaid holidays for most of January, all of February – September, and half of October. With no other industry to speak of in the North Pole, however, other income-earning opportunities must be scarce.
• Human employees must wear fake elf ears “as a gesture of solidarity with” their “fellow employees.”
• Cogs must sign a non-competition agreement as a condition of employment. (I guess that job at Mattel is going to have to wait.)
• Discipline can include weeks of work without pay.
• Cogs receive the generous allotment of one five minute break and one 11.5 minute lunch break for every 11 hours worked.

Other topics covered include the dental plan (administered by Herbie), how to participate in reindeer games, and what the 12 days of Christmas mean to you. Needless to say, Santa does not appear to be one to be trifled with. Then again, if he knows when all of the world’s kids have been naughty or nice, it stands to reason that he keeps a pretty tight grip on his employees. And, if you think Santa is a pain, the handbook makes it clear that the HR Director, Mrs. Claus, goes without physical attention from Santa during peak production times and can get a tad prickly as a result.

If you’re looking for a good holiday gift for that special HR person in your life, I strongly recommend The North Pole Employee Handbook.

Also, don’t forget after January 1 to take a look at your own employee handbook, to determine if any policies need to be updated or added.

#SCOTUS unanimously holds that post-work security checks are unpaid

Integrity Staffing Solutions v. Busk asks the question of 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 with employee theft issues. To combat the problem, the company implemented mandatory (and time consuming, but unpaid) post-shift security checks.

When I wrote about this case following oral argument, I commented that “I would be surprised … if the employees walk away with a win. This case will hinge on whether the security screenings are key to the nature of the employment…. [T]he employer has the better of this agreement.”

I love it when I’m right.

Yesterday, the Court handed employers a unanimous victory (opinion [pdf] here):

The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the “principal activity or activities which [the] employee is employed to perform.” Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.

The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers…. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.

Shortly after the Court delivered its opinion, I read the following tweet:

#SCOTUS OKs #WageTheft at Amazon http://t.co/DvSuWmLEqO

— N. William Metke (@metkelaw) December 9, 2014

While I understand that employee advocates are trying to make a point by using the phrase, “wage theft,” their continued use of this misnomer does their cause a disservice. It is not wage theft if a court concludes that time is not compensable. In fact, it’s the opposite of wage theft. Labeling every instance that an employer does not pay an employee as “wage theft” waters down the plight of the minimum-wage worker (which, I understand, is the point of labor’s wage-and-hour efforts). If you want us to take you seriously, you can’t cry thief every time you see an employer carrying a stack of pay envelopes.