Employers seek to halt EEOC’s efforts to drum up plaintiffs for its “Onionhead” lawsuit

You may recall the lawsuit filed the EEOC claiming that a New York employer forced its employees to join a religion called “Onionhead.”

Now, Employment Law 360 reports that the company’s counsel is trying to block the EEOC from reaching out to the company’s employees to seek additional plaintiffs for its lawsuit.

The employers have asked the federal judge hearing the case to block the EEOC from any further “solicitations of Defendants’ current and former employees for participation in the lawsuit.” You can download a copy of the employers’ letter to the court here [pdf].

According to the company, the EEOC’s letters, printed on government letterhead, provided the employees a one-sided description of the case, omitted a statement that liability has yet to be decided, and created the impression that the employee must contact the EEOC.

Decide for yourself.

If the employer is true, the EEOC is going to have issues. A federal agency cannot misrepresent litigation to drum up support among employees. It also cannot provide employees a mistaken impression that they must cooperate.

At the same time, however, employers faced with alleged misconduct like that alleged in the Onionhead lawsuit must tread very carefully so that they do not unlawfully retaliate against the employees by interfering with their participation rights. For example, an employer cannot forbid employees from cooperating with the EEOC, or even dissuade them from contacting the agency.

What should employers do?

• They can tell employees that it is their choice whether to contact, or cooperate with, the EEOC.
• They can tell employees to be truthful when talking with the EEOC.

What must employers do? 

• They must guarantee employees that they will not suffer any retaliation, no matter their choice.

Employers faced with an EEOC investigation should know that the agency is using these tactics, so that they can proactively, and lawfully, respond by delivering the right message to their employees.

The internet might be for porn, but not on work computers

I spent yesterday working from home, as Cleveland got socked with nearly a foot of snow and my kids had the day off from school.

While working from home, I came across an article from Crain’s New York Business, entitled, Porn and the snowbound workforce. The article argued that winter storms lead to increased software security violations, including those on company-owned computers that employees are using to work from home, including a spike in malware infections.

[I]ncreased levels of malware infections go almost hand-in-hand with increased traffic to porn sites. Adult-content platform Pornhub reported a 21% increase in traffic from New York City-based users during this week’s storm…. For randier New Yorkers who might have been home with work-provided laptops, the blizzard malware infections could cause more than just an uncomfortable chat with human resources.

Companies should want employees to have the flexibility to work from home during inclement weather. It’s certainly safer than having them traverse icy or snow-covered roads. Moreover, it enables you to capture some of the productivity you would otherwise lose from childrens’ snow days and other weather-related days off. Companies must, however, make it clear to employees that work computers are for work, and not for play, even if the employee is using the computer at home.

Consider the following Telecommuting Principles, from the Emory WorkLife Resource Center:

• The user’s local IT unit must provide, maintain, and support a computer with an approved Emory configuration defined by the Local IT unit. The configuration must address the Information Security Requirements for Telecommuting Arrangements which includes items such as current security updates and anti-virus capability, removal of administrative rights, proper firewall configuration, and security incident reporting requirements.
• Telecommuters must use only the Emory provided computer for telecommuting.
• Telecommuters must protect the computer issued to them and any sensitive data that it might contain.
• Telecommuters may not store sensitive information on the computer unless authorized to do so, and even then, telecommuters must only store the absolute minimum required.
• Telecommuters must encrypt or password protect documents that contain sensitive information when possible, and upgrade to Full Disk Encryption when an enterprise solution becomes available.
• Telecommuters may not transfer sensitive data to non-Emory owned systems or removable media, and they may not allow unauthorized users to use the computer issued for telecommuting.
• Users must immediately notify their manager and local IT support if a system used to telecommute is lost or stolen or if the system is compromised or suspected of being compromised by a computer virus or hacker.

These types of policies cannot guarantee a malware-free IT infrastructure. They will, however, provide you some sense of security in knowing that your employees are aware of the issue, while at the same time providing you the ammunition you need to support action against a employee who misuses your computers.

Mark this beastly religious accommodation case for the employer

Last Monday, I wrote about a jury verdict against an employer that refused to make accommodation for an employee who objected to the use of the company’s time-keeping hand scanner for religious reasons. In response, one reader commented:

Seems to me that the law should require some sort of reasonableness requirement on the plaintiff. There’s no reason we should have to accommodate every ridiculous whack-a-doodle demand…. “The Mark of the Beast”? Seriously??? We should not have to cater to such nutjobs, and it makes a mockery of our legal/political/economic system to have to do so.

Well, captain_quirk, this one’s for you.

Last week, the 6th Circuit, in Yeager v. FirstEnergy Generation Corp., held that an employer does not have to accommodate an employee’s religious beliefs if those religious beliefs conflict with a requirement of federal law.

When the plaintiff, Donald Yeager, turned 18, he disavowed his social security number. As a Fundamentalist Christian, he believed that being identified by any number, including the federally mandated social security number, was having the “Mark of the Beast.” (Amazingly, Yeager is not alone in this thinking.) FirstEnergy refused to hire Yeager because he would not provide his social security number. Yeager sued, and lost.

Every circuit to consider the issue has [held] that Title VII does not require an employer to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute. Some courts have [held] that a statutory obligation is not an “employment requirement,” while others have held … that violating a federal statute would impose an “undue hardship.” These dual rationales arrive at the same, sensible conclusion: “[A]n employer is not liable under Title VII when accommodating an employee’s religious beliefs would require the employer to violate federal … law.”

The Internal Revenue Code requires employers such as FirstEnergy to collect and provide the social security numbers of their employees. In this case … FirstEnergy’s collection of Yeager’s social security number is a “requirement imposed by law” and therefore not an “employment requirement.”

Despite this highly sensible decision, I stand by my conclusion from last week’s discussion—much more often than not, requests for accommodations are not the demarcation on a battleground, but the call for a middle ground … unless the request asks you to violate a federal law, in which case all bets are off.

WIRTW #353 (the “sphere of influence” edition)

Earlier this week, Moodvise published its list of the The 100 Most Influential People in HR and Recruiting on Twitter. I clocked in at a respectable #83. If you are new to Twitter, or just looking for a good list of folks to follow for your 140-character HR nuggets, you should check on Moodvise’s top 100.

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

Discrimination

• End tenure as of age 70… — via Walter Olson’s Overlawyered
• For the defense: It’s getting complicated — via Michigan Employment Law Connection
• McDonald's Corporation Sued In Employment Discrimination Case — via Overtime Lawyer Blog
• Court Holds Employer Who Fired Employee For Making Death Threats May Have Violated ADA — via The Employment Brief
• Two big sexual harassment cases: where the employers went wrong — via Robin Shea’s Employment & Labor Insider
• McDonald’s Wrongful Termination Lawsuit to Test NLRB Decision — via WSJ.com Law Blog

Social Media & Workplace Technology

• Hack to the Future: Eleven Cyber Risk Developments Watch in 2015 — via The D & O Diary
• Data Security and Cyberthreat Trends for 2015 — via The SHRM Blog
• OK to monitor email without consent? — via Business Management Daily

HR & Employee Relations

• If You Run Credit Checks on Your Job Candidates, Now Would Be A Good Time To Panic — via Evil HR Lady, Suzanne Lucas
• S’now Joke: You are Fired for “Bad Weather” — via Workplace Prof Blog
• Miles on Employee Handbooks — via Phil Miles’s Lawffice Space
• How should your office handle snow days? — via Ask a Manager
• Handling Employee Theft — via HR Examiner with John Sumser
• Do I Have To Respond To A Complaint About “Deflated Balls” — via Evil Skippy at Work
• Playing “I-Spy” in the NFL Deflate-Gate Is No Different than the Workplace — via Sherman Law Corporation
• A Working from Home Experiment Shows High Performers Like It Better — via Harvard Business Review

Wage & Hour

• BLIZZARD! Wage and Hour Reminders for Employers on Winter Storm — via Dan Schwartz’s Connecticut Employment Law Blog
• FACT OR FICTION: Snow + Office Closed = FMLA Day — via Eric Meyer’s Employer Handbook Blog
• Unpaid Internship Showdown at the Second Circuit — via The Wage and Hour Litigation Blog
• FLSA Collective Action Certified By NJ Federal Court: Another Dangerous “Electronic” Class Action — via Wage & Hour - Development & Highlights
• Employers Cannot Rely on Timekeeping Policies as a Defense to FLSA Claims — via HR Defense Blog
• Eleventh Circuit Explains That Employer Knowledge of Work Renders It Compensable — via Wage and Hour Law Update

Labor Relations

• Despite Government Efforts, Union Density Slips Further — via LaborPains.org
• Labor board readies flurry of decisions — via The Hill
• Ithaca Adjunct Faculty Begin Organizing Effort — via Labor Relations Today
• NLRB’s Budget Increases as Workload Decreases — via Matt Austin Labor Law
• What is a “Right to Work” law? — via Texas Employment Law Blog
• Union Membership Declines In 2014 — via Labor Relations Today
• NLRB: Employers may terminate employees for insubordinate social media messages — via Technology for HR

Help EmployeeScreenIQ with its 6th annual Employment Background Screening Survey

Every now again I get to do something nice for people I like. Today is one of those days. EmployeeScreenIQ is conducting its 6th annual Employment Background Screening Survey.

According to the company:

In its 2015 survey, EmployeeScreenIQ again sets out to capture the various influences on employers' hiring practices and how they respond when adverse information is revealed. What type of criminal history or resume discrepancy is egregious enough to disqualify a job candidate? How are employers handling job applicants when red flags arise? The threat of lawsuits over discriminatory hiring practices, complex and confusing "ban the box" laws, resume distortion and social media overreach are among the serious challenges that continue to vex the HR community when conducting employment background checks.

All participants will receive a copy of the published results, along with an entry for a $250 Amazon gift card (not that anyone is bribing you).

The survey is available here.

Given the proliferation of FCRA class action lawsuits, along with EEOC’s stepped-up enforcement against the use of criminal histories in hiring, this survey is well worth your time.

Jury verdict teaches that “open door” policies must still comply with EEO laws

There exists an inherent tension  between open-door and other self-reporting policies and the EEO laws.

Consider, for example, a recent $100,000+ jury verdict against a trucking company for disability discrimination. The company maintained a written “Open Door” policy, and an unwritten policy that prohibited any driver who self-reported alcohol abuse from ever returning to driving. The EEOC sued after an employee who availed himself of the Open Door policy to self-report an alcohol addiction was banned from any future driving for the company. Even though the company offered the driver a part-time dock position as an accommodation, the EEOC successfully argued that the employer failed to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment,” and that “to maintain a blanket policy that any driver who self-reports alcohol abuse could never return to driving—with no individualized assessment to determine if the driver could safely be returned to driving—violates the ADA.”

Employees need to be able to engage in protected activity without any retribution or other negative consequences. In this case, the employer learned of a disability and failed to engage in the interactive process for a reasonable accommodation. In others, employers might retaliate against an employee who uses an open-door policy to complaint about discrimination or harassment.

Open-door policies are laudable. They foster the communication that is necessary between employees and management necessary for a healthy (and hopefully union free) work environment. With that openness, however, comes responsibility—the responsibility to learn information without retaliating. Employees need to train management so that they know what to do with protected information once they learn it, and how to act without violating any of our EEO laws. Without this training, employers are setting up their open-door policies and programs for a litigation fail.

The full press release about this jury verdict is available here.

The FMLA has eligibility limits (unless you tell your employees otherwise)

The FMLA does not provide leave benefits to all employees of all employers. First and foremost, it only covers employers with 50 or more employees. And, only a subset of employees of a covered employer is eligible for FMLA leave.

An employee is eligible for FMLA leave from a covered employer if the employee—

1. was employed by the employer for at least 12 non-consecutive months;
2. worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
3. works at a location where the employer employs 50 or more employees within a 75-mile radius.

Employees who fails to meet any one of these criteria are not eligible for FMLA leave … unless the employer tells them otherwise.

In Tilley v. Kalamazoo County Road Commission (6th Cir. 1/26/15) [pdf], the employer maintained the following FMLA policy:

Employees covered under the Family and Medical Leave Act are full-time employees who have worked for the Road Commission and accumulated 1,250 work hours in the previous 12 months.

The employer, however, denied Tilley’s request for FMLA leave because he did not work at a location that employed 50 or more employees within a 75-mile radius. Based on the employer’s unambiguous policy, however, the court concluded that the employer waived any ability to rely upon the 50-employee threshold.

This is an unambiguous and unqualified statement that Road Commission employees, like Tilley, who have logged 1,250 hours in the year before seeking FMLA leave are covered by the FMLA and are eligible to apply for FMLA benefits…. 

The Road Commission could have qualified its statement concerning employee eligibility by adding that its full-time employees would only be covered by the FMLA if they worked at, or within 75 miles of, a site at which the Road Commission employed at least 50 employees. That is precisely what other employers have done…. 

And we are unwilling to conclude as a matter of law that Tilley was unreasonable in relying on the Manual’s statement that employees in his position were eligible to apply for FMLA benefits. Simply put, a reasonable person in Tilley’s position could fairly have believed that he was protected by the FMLA.

Bottom line? Courts will hold you to your word if you mis-represent FMLA eligibility to an otherwise ineligible employee. If you, as an employer, do not want to go beyond the FMLA’s baseline requirements, you need to check, and then double-check, your leave policies, to make sure you are not promising your way into more coverage than intended.