DOL proposes expanded FMLA coverage for same-sex couples

Same-sex spousal rights in this country are a mess. There is hope that the Supreme Court will clear it all up later this year when it hears the issue. In the meantime, the Department of Labor has proposed a change to the FMLA’s definition of “spouse.” From the DOL:

We announced a rule change under the FMLA to make sure that eligible workers in legal, same-sex marriages, regardless of where they live, will have the same rights as those in opposite-sex marriages to care for a spouse. We’ve extended that promise so that no matter who you love, you will receive the same rights and protections as everyone else.

For the purposes of the FMLA, marriage will now be determined based on where the couple got married, not on where an employee lives. This is called a “place of celebration” rule.  That means that access to federal FMLA leave for an individual in a same-sex marriage is protected regardless of the marriage laws of the state in which that worker resides.

Thus, as proposed, the meaning of “spouse” under the FMLA would depend on the law of state in which the marriage was celebrated, not the law of the state where the employee lives or works. So, if your business is in Ohio and your employee lives and works in Ohio (which does not currently permit same-sex marriages), but travels to New York for a lawful and valid same-sex wedding ceremony, you would have to grant that employee the same FMLA benefits as you would to any other “spouse.”

This rule takes effect March 27, which means you have only 30 days to prepare your FMLA policies and practices for this important change. What should you be doing to prepare? Jeff Nowak offers three really good ideas:

1. Train your leave administrators and supervisors on the new rule.  If any of these employees are remotely involved in the leave management process (e.g., they pick up the phone when an employee reports an absence, they answer employee questions about absences, they determine eligibility and/or designation rights under FMLA), they need to understand their responsibilities under the new rule, since benefits available to certain employees will have changed.

2. Review and amend your FMLA policy and procedures, as well as all FMLA-related forms and notices, to the extent that they specifically define the term “spouse” in a way that does not account for the new rule.

3. Be mindful that this new regulation covers individuals who enter into a same-sex marriage. However, the FMLA does not protect civil unions or domestic partnerships, so employers are well advised to determine whether FMLA applies in any particular situation.  That said, employers are free to provide greater rights than those provided for under the FMLA.

Of course, as Robin Shea correctly points out, if the Supreme Court rules later this year that states must recognize valid same-sex marriages entered in other states (as it should), then the necessity of this DOL regulatory change is short lived.

Courtesy of the DOL, here are all of the resources you need on this important issue:

• Text of the Final Rule (effective March 27) [pdf]
• DOL Fact Sheet
• FAQs
• DOL Press Release

Turning a mistake into an educational opportunity

Yesterday, local morning news anchor Kristi Capel got herself into a bit of a mess when, during her newscast and while speaking to her African-American co-anchor, used “jigaboo” to refer to Lady Gaga’s music.

We can debate the sincerity of her explanation (“I deeply regret my insensitive comment. I didn’t know the meaning and would never intentionally use hurtful language. I sincerely apologize”), or the intent of her words. To me, she did not appear to intend hatred or bigotry, even if I don’t necessarily believe that she didn’t know the meaning of jigaboo. We can also debate whether she deserves to lose her job because of this incident. To me, if this is her first instance of racial insensitivity in the workplace, then there is no reason she must be fired (although Fox 8 certainly would be within its rights if it did so).

Instead, I want to use this story to illustrate a broader and much more useful point. In responding to workplace harassment, Title VII does not require that an employer deploy the most severe punishment. Instead, Title VII merely requires that an employer institute corrective action that is reasonably likely to prevent the harassment from re-occurring. Every workplace faux pas is not an excuse to punish. Yet, each presents an opportunity for an employer to teach, and for employees to learn.

In commenting on the incident, Fox 8’s news director said, “Kristi apologized on the air shortly after making the remark. She did not know what the word meant but that is no excuse for using it. We have spoken with her and are confident nothing like this will happen again.” Good response.

4th Circuit eviscerates EEOC in background screening case

Nearly a year ago, the 6th Circuit sent a strong message to the EEOC in dismissing a case regarding its “expert” witness retained to challenge an employer’s use of credit checks. Last Friday, the 4th Circuit affirmed the dismissal of a similar case in which the EEOC used the same expert. In EEOC v. Freeman [pdf], the 4th Circuit did not mince its words:

The EEOC wields significant power, some of which stems from the agency’s broad discretion to investigate, conciliate, and enforce, and some of which derives from public actions that exert influence outside the courtroom. The Commission’s actions can be also expected to have broader consequences than those of an ordinary litigant given the “vast disparity of resources between the government and private litigants.”

In deciding when to act, the Commission must balance sometimes-competing responsibilities. On the one hand, the agency must serve the employee’s interest by preventing an employer from “engaging in any unlawful employment practice” under Title VII. On the other hand, “the EEOC owes duties to employers as well: a duty reasonably to investigate charges, a duty to conciliate in good faith, and a duty to cease enforcement attempts after learning that an action lacks merit.” That the EEOC failed in the exercise of this second duty in the case now before us would be restating the obvious.

The EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress, as its “significant resources, authority, and discretion” will affect all “those outside parties they investigate or sue.” Government “has a more unfettered hand over those it either serves or investigates, and it is thus incumbent upon public officials, high and petty, to maintain some appreciation for the extent of the burden that their actions may impose.” The Commission’s conduct in this case suggests that its exercise of vigilance has been lacking. It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.

Ouch.

WIRTW #356 (the “rock hall” edition)

You may have heard that Cleveland has the Rock and Roll Hall of Fame. You may have also heard that this year is Cleveland’s turn in the rotation to host the induction ceremony.

The Rock Hall is turning this year’s inductions into a week-long party, which kicks off with Celebration Day on April 11.

Here comes the cool part. Since Joan Jett is one of this year’s inductees, the Rock Hall has invited my daughter’s School of Rock band for an encore performance of last month’s Joan Jett show—April 11, at 5 pm, on the big stage at the Rock Hall. Norah’s very sincere comment when I told her: “Some people wait their whole lives to play at the Rock Hall — I’m only 8.”

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

Discrimination

• Sexual Harassment: Boys and Thrones — via Heather Bussing at HR Examiner with John Sumser
• What Sexual Harassment at Work Really Looks Like — via Cosmopolitan 
• Nobody Discriminates Like Sara Lee? — via Workplace Prof Blog
• Showdown At The Fifth Circuit Continues: Texas Gets The Last Word On Its Challenge To The EEOC’s Criminal Background Guidance — via EEOC Year-End Countdown
• Everything old is new again: How the EEOC is reinventing itself — via Oregon Business

Social Media & Workplace Technology

• What To Do When a Fired Employee is Badmouthing Your Company — via Inc.com
• Wait…What Did He Say? (Or, What To Do When Your Employee’s Tweet Goes Viral) — via Employment Law Lookout
• Social Media 2015: Addressing Corporate Risks — via Socially Aware Blog
• The school bus driver’s beer-drinking selfie on Facebook was a bad idea — via Eric Meyer’s Employer Handbook Blog
• Wearable Workplace “Mood Monitors” Are About To Become A Thing — via Good
• Should you tell app-loving Generation Z no in the workplace? — via Information Age
• ‘Deactivated’ Facebook Account Is Discoverable In Litigation (Forbes Cross-Post) — via Technology & Marketing Law Blog
• Reality ‘bytes’: Employee sabotages electronic files and communication — via Technology for HR

HR & Employee Relations

• And Vice Versa — via dad working
• Paid Leave for New Dads and Moms: Why is U.S. so far behind? — via Families and Work Institute Blog
• How to Keep HR Off the Front Page of the Newspaper — via TLNT
• Litigation Update: Home Depot Hit for Employment Background Checks — via employeescreenIQ Blog
• The Brian Williams Story: Lessons for Employers — via Joe’s HR and Benefits Blog
• 5 Real-Life Lessons About Resume Fraud — via EmployeeScreenIQ Blog
• You’ve exceeded my expectations, Valentine! — via Robin Shea’s Employment and Labor Insider
• Weight Loss Competitions In The Workplace — Yay or Nay? — via Evil Skippy at Work
• Millennials on the Market: Recognition & Retention in an Age of “What’s in It for Me?” — via Compensation Cafe

Wage & Hour

• The USDOL is looking for ideas and there is a deadline of February 25th — via Mike Haberman’s Omega HR Solutions
• U.S. Department of Labor’s blueberry squeeze goes wrong — via Walter Olson’s Overlawyered
• Government Gets Cold Shoulder to “Hot Goods” Provision Usage — via Dan Schwartz’s Connecticut Employment Law Blog
• Predictable Scheduling: The Next FLSA Frontier? — via Wage & Hour Insights
• An NPR ‘Miss’ On Labor Unions and the Minimum Wage — via LaborPains.org
• When Must An Intern Be Paid? — via Overtime Lawyer Blog
• Healthy Families Act Would Let Workers Earn Paid Sick Days — via Today’s Workplace

Labor Relations

• The Cost of a Decline in Unions — via Nicholas Kristof at The New York Times
• NLRB General Counsel Issues Guidance on Deferral to Grievance Arbitration and Settlements — via Labor Relations Update
• DOL: 150 Union Pension Funds In Critical Status — via Labor Relations Institute
• D.C. Circuit Caps NLRB’s Overly Zealous Policing of Section 7 Rights — via Vorys on Labor

 

Gawker intern lawsuit shows the need for social-media savvy in the legal profession

Have you recently tried to communicate with someone under the age of 25? Have you tried to call them? How about email? What about text message, Facebook, or Twitter? I bet that your communicative outreaches are much more likely to gain a response if you choose any of the latter over the former.

Thus, it shouldn’t be that surprising that a federal court is permitting a group of former interns (now plaintiffs) to use social media to reach out to potential class members concerning a wage-and-hour lawsuit against online blog network Gawker. According to Gawker, however, in this letter filed with the court [pdf], the plaintiffs’ planned social media outreach goes too far.

The court previously green lit the plaintiffs’ use of social media to reach potential class members. Their proposed plan? In addition to tweets directing potential class members to a website about the lawsuit, the use of the hashtag “#gawkerinternlawsuit, and the creation of a Facebook pages and LinkedIn group to disseminate information to potential class members. Other proposals, to which the employer objects, include:

• Repeat messages over numerous social media sites, including Twitter, LinkedIn, Reddit, Facebook.
• The use of inflammatory hashtags such as #fairpay and #livingwage.
• Plaintiffs’ counsel adding potential claimants as Facebook friends.
• Using Reddit to tie the lawsuit to unrelated political causes.

I don’t need to tell you that social media has become ubiquitous. I also don’t need to tell you that lawyers are notoriously slow to adapt. As the Gawker case illustrates, social media is playing, and will continue to play, an important role in litigation. If I were hiring an attorney to handle my employment litigation, one question I would be asking is whether that lawyer understands social media, uses social media, and knows how it could be used to help the case.

[Hat tip: Employment Law 360]

Target (inadvertently) teaches the importance of avoiding age-based stereotypes

I do a lot of speaking. One speech that I’ve been giving over the past couple of years is entitled, “X+Y+Z = A Generational Mess for Your Workplace.” I teach how employers can best manage the diverse needs and abilities of four different generations of employees. I discuss some broad-based generalizations about Traditionalists (age 70+), Baby Boomers (50-69), Gen X (35-49), and Gen Y (under 35). I always finish by discussing the very real risk of age discrimination if you treat these generalizations as gospel, and do not treat each employee, of age any, as an individual, with individual talents and abilities.

Target saw the need to offer the same type of training to its managers, but it left off the part about age discrimination. Gawker (h/t Business Management Daily) published Target’s training materials, entitled, Managing Generational Differences,” which, among other things, describe its oldest workers as “slow to adapt to change,” “rarely question[ing] authority” and see[ing] technology as “complex and challenging.”

When you are sued for discrimination, your training materials are fair game in litigation. While you write them to aid your employees, you must do so with (at least) one eye on the jury that will read them during trial. You do not want to have your manager explain to a jury, in an age discrimination case, if he thought the plaintiff was “slow to adapt to change” when he made the termination decision.

Federal appeals court rejects “retaliatory rehiring” claim

As part of massive reorganization, Allstate severed the employment of approximately 6,200 employee agent. In connection with the layoff, Allstate offered all of the employee agents the opportunity to convert their employment status into that of an independent contractor selling Allstate insurance products, provided that they signed a release of all legal claims against Allstate, including federal employment discrimination claims.

In filing suit on behalf of the employees, the EEOC took the position that conversion from an employee to an independent contractor, coupled with a general release, constitute unlawful retaliation under the federal civil rights laws.

In EEOC v. Allstate Ins. Co. (2/13/15) [pdf], the Third Circuit flatly rejected the EEOC’s folly.

It is hornbook law that employers can require terminated employees to release claims in exchange for benefits to which they would not otherwise be entitled. Nothing in the employment-discrimination statutes undermines this rule….

According to the Commission, Allstate could have complied with the antiretaliation statutes by simply firing all its employee agents for good, instead of giving them the opportunity to sell Allstate insurance in a different capacity. We are confident that federal laws designed to protect employees do not require such a harmful result….

The EEOC here fails to articulate any good reason why an employer cannot require a release of discrimination claims by a terminated employee in exchange for a new business relationship with the employer.…. [W]e are not persuaded by the Commission’s efforts to arbitrarily limit the forms of consideration exchangeable for a release of claims by a terminated employee.

In other words, the employer, and not the EEOC, gets to decide the post-employment benefit to provide an employee in exchange for a release of claims—whether it’s severance pay, continued health benefits, an engagement as a independent contractor, or something else. As long as the consideration is not something to which the employee is already entitled, a court will not second-guess its sufficiency.