WIRTW #351 (the “conciliation” edition)

We’re supposed to assume complete good faith on the government’s part and complete bad faith on the part of employers?

Chief Justice John Roberts asked this question of Assistant Solicitor General Nicole Saharsky during oral argument earlier this week in Mach Mining v. Equal Employment Opportunity Commission, a case that will test the limits of how far the EEOC has to go to try to conciliate a charge of discrimination prior to filing an enforcement action in court.

The oral argument did not go so well for the EEOC. Irin Carmon at MSNBC, Jess Bravin at the Wall Street Journal, and Julie Goldscheid at SCOTUSblog have the details.

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

Discrimination

• Are punitive damages recoverable in a Title VII discrimination case? — via Employment Law Bits
• Fitness for Duty Release Did Not Undermine Legitimate Reasons for Termination — via Laconic Law Blog
• Year-Starting Stumbles: The EEOC’s Aggressive Tactics Shot Down Twice In The First Week Of 2015 — via EEOC Year-End Countdown
• Employer Fails to Provide Leave of Absence to Probationary Employee, Pays the Price — via Jeff Nowak’s FMLA Insights
• 7th Circuit Finds Employer That Included Employee's EEOC Complaint in SEC Filings Enough to Show Retaliation — via Wisconsin Employment & Labor Law Blog
• Recent 404(b) “Other Acts” Cases In Title VII Employment Context — via David Neel’s Cleveland Employment Law Blog

Social Media & Workplace Technology

• Should You Be Performing Facebook Background Checks? — via ERC Insights Blog
• Facebook at Work tackles office communication with familiar tools — via Engadget Mobile
• Lawsuits, Discovery, and the Right to Privacy In the Context of Social Media — via Molly DiBianca’s Delaware Employment Law Blog
• BYOD and Employee Habits—Employer Concerns — via HR Daily Advisor

HR & Employee Relations

• Is Your Organization Ready for Another Northeast Ohio Winter? — via ERC Blog
• Workers may be temporary, but OSHA is forever: clarifying employer duties — via HR Hero Line
• My Employee Jokes About Strangling Difficult Customers — via Evil Skippy at Work
• HR 101: To Background Check or NOT to Background Check — via TLNT
• 8 New Year's Resolutions for HR — via Next Blog
• Is Policy The Enemy of Trust? — via Next Blog

Wage & Hour

• Since You Asked: A Modest Wage & Hour Law Proposal — via Dan Schwartz’s Connecticut Employment Law Blog
• President Obama to push for paid sick leave for American workers — via Eric Meyer’s Employer Handbook Blog
• Converting employees into contractors? Prepare for expensive, protracted litigation — via Business Management Daily
• Make sure smartphones mean smart business: Beware of wage-hour hazards — via Technology for HR
• Workers Are Bad at Filling Out Timesheets, and It Costs Billions a Day — via Harvard Business Review
• Can My Boss Dock My Pay For Mistakes? — via Donna Ballman at AOL Jobs

Labor Relations

• Can Companies Fire Workers Who Blab About How Much Money the Boss Makes? — via Matt Austin Labor Law
• U.S. Chamber Files Suit to Block NLRB’s New Election Rule Which Would Speed Up Elections — via Wyatt Employment Law Report
• New Year, New Rules, New Union-Avoidance Strategies — via Employment Law Watch
• Want to Be Happy? Join a Union — via The New York Times

Why retaliation claims should keep you up at night

In early 2009, Aker Plant Services terminated the employment of Tommy Sharp as part of workforce reduction. When Sharp asked his supervisor why the company chose him, as opposed to his less experienced, less senior co-workers, the supervisor replied that the company decided to keep younger employees who could stay with the company longer. Sharp then sued for age discrimination.

While Sharp’s age discrimination lawsuit was pending, a staffing agency attempted to place him for a temporary position at Aker. The company, however, immediately rejected Sharp’s candidacy,  notifying the staffing agency, via email, as follows:

Yes, we do know Tom. He does acceptable work as a designer, but he violated a DuPont mandate on the use of electronic recording devices on company property when last employed here. There are combustible materials in the plant that can potentially be ignited by the use of cell phones, recorders, cameras, etc… [sic] DuPont maintains a zero-tolerance approach to safety violations on its property so, unfortunately, we will not be able to consider Mr. Sharp for this role.

Sharp then brought a second suit, this time for retaliation. The district court dismissed the retaliation claim, concluding that the 15-month gap between Sharp’s initial notification of an intent to sue for age discrimination and the email to the staffing agency severed any potential causal connection between the two events.

The 6th Circuit, however, in Sharp v. Aker Plant Services Group (6th Cir. 1/13/15) [pdf], disagreed:

Considering the evidence in the light most favorable to Sharp, one could reasonably infer that Aker declined to rehire Sharp in retaliation for his then-pending discrimination action. Yes, it was fifteen months later…. Aker terminated Sharp before he filed his age-discrimination lawsuit, and therefore could not retaliate against him in any manner until he returned seeking temporary employment a year and a half later. Evidence showing that an employer had no opportunity to retaliate sooner supports a finding of temporal proximity.

Retaliation are the most dangerous claims that employers face. This employer likely felt safe refusing Aker’s placement because of the 15-month gap. That time gap, however, was tempered by the fact that the company no longer employed Aker, and its next interaction with him was the claimed act of retaliation. When an employee engages in protected activity, you must treat that employee with added care, as any act that could dissuade an employee from engaging in protected activity could give rise to a retaliation claim.

Beware the pregnancy accommodation claim

On Monday I published my list of the five biggest issues employers need to watch and manage in 2015. I listed “pregnancy leave rights” as number five. In reality, though, that issue could easily have been number one.

Consider that earlier this week, USA Today told the story of a North Carolina nursing assistant, who claims that she was forced to resign from her job after her employer refused to provide light duty to accommodate the medical complications of her pregnancy. According to the story, “The nursing home regularly provided ‘light duty’ to workers unable to lift, Cole says in the complaint. On light duty, nurse assistants can feed and clean residents and assist with oxygen tubing and nebulizers, she added.

This issue is not going away. Charges filed with the EEOC alleging pregnancy discrimination have increased by nearly 50% over the past 15 years. Moreover, women comprise nearly half of the workforce, and 75% of them will become pregnant at some point. Couple those stats with the fact that 40% households with children have mothers who are either the sole or primary source of income for the family, and you can see why this issue is so critical to the American worker (and, consequently, the American employer).

Yet, this should be a non-issue for most employers. Just this past summer, the EEOC issued enforcement guidance that affirmed my long-held belief that employers may have to provide light duty for pregnant workers, and must provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions. This rule will impose a light-duty obligation on most employers.

Ask yourself—

• Have I ever provided light duty to expedite the return-to-work of an employee with a work-comp claim?
• Have I ever provided light duty to an employee as an ADA reasonable accommodation?

If you answer “yes” to either of these questions (and most employers will), then you cannot deny the same light duty to a pregnant worker.

“Buyer’s regret” as an adverse employment action

Nearly a year ago, in Deleon v. City of Kalamazoo, the 6th Circuit decided that an employee could claim discrimination when he was “involuntarily” transferred into a position for which he had earlier voluntarily applied. 

At the time, I thought it was one of the worst decisions I had ever read.

Yesterday, the Supreme Court decline to review the Deleon case. Typically, these denials are unceremonious affairs, with nary a word other than “denied” pronounced. Justice Alito, however, apparently agreeing with my assessment of the 6th Circuit’s decision, took the rare occasion to draft a dissent to the denial (pdf here). This is what he wrote:

An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.

No termination is perfectly insured against a lawsuit. Some are more high risk than others (and those should be accompanied by an offer a severance package in exchange for a release of claims). Even the easiest decisions, however, carry some amount of risk. On any given day, any judge or jury could agree with the employee and decide against you. You job as an employer is to balance the risk of a lawsuit against the risk of keeping an employee employed and make a reasoned, informed decision about whether to retain, fire, or fire with a severance offer. And, please, don’t have buyer’s regret.

[Hat tip: Phil Miles’s Lawffice Space] 

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.