Five for ’15: The legal issues that need to be on your radar

Personally, December is my favorite time of the year. I love the joy and togetherness of the holiday season. Professionally, however, I love January. After we’ve decked the halls and sung the last bars of Auld Lang Syne, companies get back to work, including the work of managing their most important asset—their employees.

Now that business is back in session, employers need to figure out the issues that will keep them up at night over the next 12 months. And that’s where I come in. My phone will start to ring as employers realize that they haven’t updated their handbook since the (first) Bush administration, of haven’t conducted harassment training since before Anita Hill made sexual harassment a household phrase.

What are the hot-button employment law issues that will keep your HR department busy over the next year? Let me offer five suggestions.

     1. Cyber-Security. No business is safe from the risk of a cyber-breach. The question of whether your business will suffer a breach is one of “when” and not “if.” Those looking to exploit your business and its information will attack your weakest point—your employees. A misplaced iPhone or laptop is a hacker’s key to your cyber-kingdom. Do your employees know what to do if their device is lost or stolen? Do they know to avoid unsecure Wi-Fi? Do they understand the risks associated with a loss of trade secrets or other confidential information? Are key employees locked down with confidentiality and non-competition agreements? Unless you can answer “yes” to each of these questions, you are taking a huge risk with your data. Be proactive in 2015 with your cyber-security by investing in prophylaxes to limit the risk of a breach. Creating a culture of security in your business will be the best money your company spends this year.

     2. Vaping. “Vape” was the Oxford Dictionary’s word of the year for 2014. For the uninitiated, vaping is the practice of using e-cigarettes to deliver tobacco through a heating element to vaporize a liquid solution that includes a concentration of nicotine. Because these vaporizing devices do not contain tobacco, most state workplace smoking laws do not regulate them. Thus, it is up to individual employers to determine the pros and cons of e-cigarettes for their workplaces and to adopt a policy that reflects that position. Yet, laws that prohibit smoking in the workplace are a floor, not a ceiling. You are free to ban these devices in your workplace, and should consider doing so, as the associated health risks are undetermined.

     3. Same-sex relationships. Congress has been slow to amend Title VII to expressly prohibit LGBT discrimination. With the Republicans now controlling both houses of Congress, this trend is unlikely to change any time soon. It is offensive that, in 2015, it is still legal to discriminate against any class of people. Employers should not wait for Title VII expressly to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII, on its face, still permits discrimination against some.

     4. Overly active federal agencies. Social media. Wellness programs. Criminal background checks. These are just a few of the issues that the feds have on their radar. President Obama’s labor and employment legislative agenda may have been a big dud, but that has not stopped the EEOC, the NLRB, and the DOL from picking up the torch and running with it. Employers, be afraid.

     5. Pregnancy leave rights. In 2015, the U.S. Supreme Court will decide Young v. United Parcel Service, which will address the issue of whether, and in what circumstances, the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with medical limitations to provide similar accommodations to pregnant employees who are similar in their (in)ability to work. UPS, which had previously refused to provide these accommodations to pregnant workers, has already amended its policies to make light duty available to pregnant employees with lifting or other restrictions to the same extent such work is available to employees with on-the-job injuries. This policy change is consistent with EEOC guidance published on this issue last summer. Stay tuned, as this issue promises to help shape the national debate over work/life balance and working parents.

Happy 2015! Cheers to a litigation free year.

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This post originally appeared in the January 2015 issue of Workforce.

WIRTW #350 (the “bad reputation” edition)

Allow me to take off my law blogger hat for a moment, and switch to my concert promoter hat.

If you love live music and find yourself looking for something to do on January 18 at 3 pm, or January 24 at 1 pm, School of Rock Strongsville will be presenting The Music of Joan Jett, featuring my very own Norah Hyman on guitar and vocals.

Both shows are at The Music Box, 1148 Main Ave., on the west bank of Cleveland’s rejuvenating Flats (a venue worth checking out if you haven’t yet been there). And, best of all, both shows are free.

Here’s what I read over the past few weeks:

Discrimination

• Is It Harassment To Post Nutritional Information On A Co-Worker’s Chair? — via Evil Skippy at Work
• The need for actual medical evidence in disability cases — via EmployerLINC
• “Your Asperger’s got in the way of your ability to interact with your boss, and we are tired of it.” — via Eric Meyer’s Employer Handbook Blog
• Family Friendly Policies: Is Europe Ahead Of The US? — via Employment Discrimination Report
• Do the ADA and FMLA Provide Protections to LGBT’s in the Workplace? — via The Emplawyerologist
• Obesity as a Disability: A Comparative Look — via Workplace Prof Blog
• The EEOC issues you’ll want to keep an eye on in 2015 — via HR Morning

Social Media & Workplace Technology

• HR Technology Trends In The Workplace In 2015 — via Karen Higginbottom at Forbes
• Watch Your Back: The Growing Threat of FCRA Background Check Class Actions — via Labor & Employment Law Perspectives
• Facebook Threats Constitute Legitimate Grounds for Termination — via Molly DiBianca at Next Blog
• Employee Terminated For Ill-Advised Facebook Post Gets Unemployment Benefits — via Technology & Marketing Law
• Report: Email still trumps social media, smartphones for workers — via Ragan.com
• 10 Social Media Privacy New Year's Resolutions — via Shear on Social Media Law

HR & Employee Relations

• Three Times When You Should Call an Employment Lawyer — via Dan Schwartz’s Connecticut Employment Law Blog
• Is your company covered by the Affordable Care Act yet? — via Mike Haberman’s Omega HR Solutions
• Knowing When to Fire Someone — via Harvard Business Review
• 15 for ’15: Employment and labor resolutions for the new year — via Robin Shea’s Employment & Labor Insider
• Don’t Be That Guy: Holding Out on Employment Background Checks — via employeescreenIQ Blog
• The Employee Zone Of Privacy — via Ohio HR Law

Wage & Hour

• Exotic dancers agree to $2.3 million wage and hour settlement — via Employer Advocate
• A Simple Proposal to Amend the FLSA to Benefit Everyone - Yes, Everyone — via Wage and Hour Defense Blog
• Attorney Client Privilege No Defense! – Turnover of Client Communications on Exempt Status Ordered — via Wage & Hour - Development & Highlights
• Wage and Hour Collective Actions May Lead To Improved Workplace Conditions — via Overtime Lawyer Blog
• Labor Department Going After More Wage and Hour Laws Violations — via TLNT
• How Do I Calculate FMLA Leave Where My Employee's Work Schedule Varies From Week to Week? — via Jeff Nowak’s FMLA Insights

Labor Relations

• Decertification Infographic — via Labor Relations Institute
• NLRB Sued Over Quickie Election Rule — via The National Law Review

Is “wife swapping” a protected class?

Although we are only 8 days into 2015, Lowering the Bar brings us what might be the lawsuit of the year:

According to the complaint, the plaintiffs are “lifelong friends” and in the course of socializing, each of them fell in love with the other’s wife and the wives felt similarly.… The new living arrangements have been established; divorces are planned but have not yet been obtained. 

Although everyone involved is said to be perfectly happy with the situation, the plaintiffs allege that their employers were not, and “placed them both on unpaid administrative leave due to their co-habitation with a woman who is not their wife.” … Plaintiffs also allege they were told that if and when they returned to work, they would be demoted, and would have to “cease all contact” with the former co-habitors until such time as they obtained divorces.

The lawsuit—Coker v. Whittington [pdf]—is a constitutional civil rights action alleging that the discrimination is based on religion and violates the employees’ right to privacy and freedom of association.

Regardless of the legality of the termination (and I'm not convinced this employer did anything illegal), this lawsuit illustrates the pitfalls that face an employer that imposes its moral worldview on employees. An employer has no business firing employees because it disagrees with how they choose to live their private lives. Assuming that their private lives do not affect their job performance, it should not impact their employability. Next time you want to take a stand against an employee for how he or she chooses to live his or life outside of work, think again.

The employees who lunch don't need to be paid

Yesterday, the 6th upheld the dismissal of an FLSA collective action, in which a group of employees had alleged that their employer failed to pay them for time spent working during their lunch breaks.

Before we discuss how the employer won this case, I think it’s appropriate to have a quick refresher on meal and rest breaks under the FLSA.

Meal and rest periods are not required by any law. Neither federal law or Ohio law requires employers to provided employees with any breaks during the work day. Federal law, however, does provide for whether meal and rest breaks are counted as “hours worked.” This distinction is important. If time is counted as “hours worked,” it goes into the calculation of time worked during the work week for consideration of whether the employee has crossed the 40-hour threshold for overtime pay.

• Rest periods, which are considered breaks of 20 minutes or less, are counted as hours worked whether or not the break is paid. Rest breaks are customarily paid, and if they must be counted as work hours, they might as well be paid for. 
• A bona fide meal period, however, is not considered hours worked. To be a bona fide meal period the employee must be totally relieved of his or her work duties. According to the Department of Labor: “The employee is not relieved if he is required to perform any duties, whether active or inactive, while eating.”

What does it mean to be “totally relieved of one’s work duties?” The 6th Circuit falls in line with most of the federal courts in applying the “predominant benefit” test to determine whether an employee’s meal period is compensable. Under this test, the employee bears the burden to prove that the normally non-compensable meal period should be compensable because it is spent predominantly for the employer’s benefit. The key inquiry is whether the employee engaged in the performance of any substantial duties during the lunch break.

With this background in mind, let’s look at yesterday’s decision in Jones-Turner, et al. v. Yellow Enterprise Sys. [pdf].

The class involved a group of EMTs and dispatchers who claimed that they were not paid for time spent “working” during their lunch breaks. Yellow automatically designated a 30-minute slot during each 8.5-hour shift as an unpaid lunch break. EMTs in the field were not allotted a specific time period for lunch but were instructed to use down time between ambulance runs to eat a meal, and had to radio dispatch to request permission to take a lunch break at the chosen time. If an employee was unable to take a lunch break due to call volume, Yellow required the employee to submit a missed lunch slip, which the employer would review for accuracy.

The court affirmed the dismissal of the wage-and-hour claim:

Yellow required its employees to radio the dispatcher to request a lunch break. EMTs had to eat within one mile of an assigned stand-by location. If the crews were “out of unit,” they had to maintain radio contact and were subject to any available run. They were expected to answer the radio after the first call. However, there was no policy that employees remain in the truck for lunch, and plaintiffs introduced no evidence that they were ever told they had to eat in the truck. Nor do the plaintiffs cite any evidence that while on a lunch break they were required to perform duties beyond responding to a call, or that once approved for a lunch break they were frequently interrupted by radio contact.... Yellow’s policies do not indicate that the plaintiffs were engaged in substantial duties during their lunch break.

This case illustrates the importance of having a policy and process in place to know when your employees are, and are not, working. Employees need to be paid for all time spent “working.” If you have a process in place, however, by which employees must notify you of when they are working outside the norm (whether it be a lunch break, or pre- or post-shift), then you will be able to verify the claim, and pay when you can confirm that work has been performed outside the normal shift boundaries. Absent that documentation, however, you are left in a the unenviable position of having to prove a negative (the employee was not working when he says he was), which is not the position you want to find yourself in defending one of these cases.

More on the importance of being accommodating

Yesterday, I wrote about the need for employers to be more accommodating for their employees’ protected needs. Today, I bring you two real-world illustrations.

• Yesterday, the EEOC announced that it had filed suit on behalf of an employee who was denied the opportunity to return to work following some time off for a cardiac condition.
• Late last year, the EEOC reached an $85,000 settlement with an employer who fired an employee attempting to return to work following time off for cancer chemotherapy treatments.

In both instances, the EEOC made the same point—the ADA imposes on employers an absolute duty to determine whether or not they can accommodate an employee’s disability. Absent that consideration, the law has been violated. Moreover, after engaging in that interactive process, the employer can only deny the request: 1) if it poses an undue hardship, or 2) if the employee cannot perform the essential functions of the job with or without the accommodation. Otherwise, you may find yourself on the receiving end of an EEOC press release, which is not the position you want to be in.

A New Year’s accommodation story

We spent part of our winter vacation on a quick family trip to Washington D.C.  The Old 97’s, my 8-year-old daughter’s favorite band, was playing two nights, and we decided to pack up the car and make the drive to our nation’s capital to catch the less raucous New Year’s Eve Eve show (and to see some of the of the sights).

My younger child, Donovan, who’s 6, has Celiac Disease. Traveling with someone who has a food allergy is tricky enough. When that same person is your typical 6-year-old picky eater, it’s darn near impossible.

Before we left home, I called the concert venue, where we planned to eat dinner during the opening act, to ask about gluten-free options for kids. They assured me that the wait staff and chefs were well versed in gluten-free preparations. For example, they could serve a bun-less cheeseburger (not his favorite, but he’d manage). When they told me that they had a dedicated fryer for french fries, I knew we’d be fine. He loves fries, but most restaurants can’t accommodate him because of the risk of cross contamination from shared fryers.

When we sat down for dinner, however, the server told us that the downstairs concert hall has a different, more limited menu then the upstairs restaurant, and they they don’t serve a kids menu or fries downstairs. Uh oh! I explained my son’s dietary issues, and that I had called ahead. She explained that they were really crowded and could not make any promises, but that she would see what she could do. No more than 5 minutes later she returned with a thumbs up, letting us know they a bun-less kids cheeseburger with gluten-free french fries would be on their way. Crisis averted.

Employers, there is a lesson to be learned from how the Hamilton handled our issue. It would have been easy for it to stick to its, “We’re too busy” story, leaving Donovan with nothing to eat. Yet, given how simple it was for them to take an extra minute and go upstairs for the burger and fries, I would have been offended had they said no.

Don’t  take the easy way out with your employees when they ask for accommodations for a disability, religion, or other protected reason. Even if you are legally right (and, the odds are good that you won’t be), you will leave the employee feeling offended and upset. Those feelings breed discontent, which, in turn, breed lawsuits. 

WIRTW #349 (the “Merry Christmas and Happy New Year, y’all” edition)

With the end of the year drawing nigh, today’s post will be my last of 2014 (barring any hot-off-the-presses breaking news). I wish all of my readers a joyous holiday season (whatever your December celebration of choice), and a happy New Year. I’ll see everyone back in 2015.

Here’s what I read this week:

Discrimination

• Santa Sued for Disability Discrimination Due to Reindeer Harassment — via Bolek Besser Glesius, LLC
• Ebola discrimination in your workplace, what the Department of Justice wants you to know. — via Eric Meyer’s The Employer Handbook Blog
• Do You Hear What I Hear? Accent Discrimination in the Workplace. — via Fitzpatrick on Employment Law
• The GOP Effect on the EEOC — via HRE Online
• Is Retaliation The New Discrimination?? — via Employment Law Lookout
• Anti-discrimination training: How to harm when you’re trying to help — via HR Cafe
• Six Geese a Laying … And How Not to Get Your Goose Cooked With a Pregnancy Discrimination Claim — via All in a Day’s Work
• Is alcoholism considered a disability under the Americans with Disabilities Act (ADA)? — via Employment Law Bits

Social Media & Workplace Technology

• Employee Personal Information – The Gift You Don’t Want to Give this Christmas — via EntertainHR
• What We Can Learn from the Biggest Corporate Hacks — via Lifehacker
• Jets Owner “Accidentally” Favorites Tweet Calling For GM's Firing — via Deadspin
• Time for Employers to Consider Social Media Background Checks? — via employeescreenIQ Blog

HR & Employee Relations

• The Top Five Signs you Need an HR Person — via Blogging4Jobs
• Employment law advice you should never follow — via Robin Shea’s Employment & Labor Insider
• How Employers Do Employment Background Checks — via Evil HR Lady, Suzanne Lucas
• FCRA Class Action Lawsuits: What Employers Need to Know — via Trepanier MacGillis Battina
• Millennials Seek Flexibility at Work — via Minnesota Labor & Employment Law Blog
• Guns In The Workplace Versus Employer’s Property Rights — via Ohio HR Law
• Is Full-Time Telecommuting a Good or Bad Thing? — via Technologist

Wage & Hour

• PA Supreme Court Affirms Nine-Figure Judgment Against Wal-Mart — via Phil Miles’s Lawffice Space
• Wage and Hour Considerations During The Holiday Season — via Overtime Lawyer Blog
• Yes, Employers Can Still Have Unpaid Interns (Under the Right Circumstances) — via Wage & Hour Insights
• FMLA Leave for Headache Effectively Converts Full-Time Position into Part-Time Position; Employers' Shrieks Heard Across the Country — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB and labor law roundup — via Walter Olson’s Overlawyered
• NLRB Delivers Freshly Wrapped Gift to Trumka — via Labor Pains
• NLRB helps unions by speeding elections; “ambush elections” rule to be fought by business groups — via The Business Journals
• NLRB: Employers Must Include Employees’ Phone Numbers, Email Addresses in Voter Lists — via Joe’s HR and Benefits Blog
• Alt-Labor — via Labor Relations Institute
• National Labor Relations Board Narrows Arbitral Deferral Standards ​— via Labor Relations Today