When loose lips sink defense ships

“So, what is is, your job or your daughter?” That one question cost an employer summary judgment in its employee’s associational disability discrimination case, in Manon v. 878 Education, LLC (S.D.N.Y. 3/4/15) [pdf].

The employee in question, a school receptionist, had attendance issues relative to her care for her infant with Reactive Airway Disease. During her 132 days of work, she arrived late 27 times, left early 54 times, and was absent another 17 times, batting .258—passable for a second baseman, but well below the employment Mendoza Line. Nevertheless, with the exception of one verbal tardiness warning, her personnel file was devoid of any documentation of attendance issues.

When Manon returned to work following a two-day absence to care for her daughter, who had been hospitalized with breathing issues, her supervisor told her that he was letting her go. The reason? “How can you guarantee me that two weeks from now your daughter is not going to be sick again? …So, what is it, your job or your daughter?”

Based on that statement, the court denied the employer’s motion for summary judgment, leaving the employer two options to resolve the case—a settlement or a risky jury trial.

It goes without saying that discrimination is wrong. Maybe the lesson here is that if you are ignorant enough to fire someone because of their caregiving needs at home, maybe it is asking too much to expect you to know enough not to express that intent out loud.

Why your control employees must care about employment laws

Last week I was asked if managers and supervisors have any liability for their own acts of discrimination or other unlawful activities. Like most things in the law, the answer is, “It depends” on the law about which you are concerned.

If it’s wage and hour advice, for example, then the Fair Labor Standards Act provides for individual liability for those who exercise significant control over the company’s operations. Some courts apply the same rationale to violations of the FMLA, although individual liability under that statute is far from a settled issue. The 3rd, 5th, and 8th Circuits have all found that there can be individual liability for FMLA violations, while the 6th (which covers Ohio) and 11th Circuits have gone the other way.

There are also potential common law claims under states law (e.g., intentional infliction of emotional distress) that, while hard to establish, create yet another avenue of individual liability. 

If it’s discrimination liability, there is no issue for the individuals under since Title VII and the other federal employment discrimination laws, none of which provide for any individual liability. 

Here is the part, however, to which Ohio employers must pay attention. Under Ohio’s employment discrimination statute, managers and supervisors can be held individually liable for their own acts of discrimination. So, an employee can not only sue your company, but also the individual who made the termination decision, the HR manager who dropped the harassment-investigation ball, or the supervisor who failed to engage the disabled employee in the interactive process. 

I’ve long argued that Ohio needs to change its employment discrimination statute to eliminate individual liability and bring our state law in line which its federal counterpart and the laws of nearly every other state. Yet, as long as this is the law of our state, these liabilities need to be central part of your company’s EEO and anti-harassment training, so that your managers and supervisors understand their own personal risk if they don’t understand their EEO obligations.

WIRTW #359 (the “think outside the box” edition)

Last night my family and I went out to dinner. The following is Donovan’s (age 6) solution of the kids’ menu word search.

His creative thinking should serve him well in life.

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

Discrimination

• Jury awards $150K to employee who feared scanner as “Mark of the Beast” — via Walter Olson’s Overlawyered
• Tackle Bias in Your Company Without Making People Defensive — via Harvard Business Review
• Transgender employees and the so-called bathroom conundrum — via Eric Meyer’s The Employer Handbook Blog
• GCs: Does Your Company Have (or Need) a Non-Discrimination Policy? — via In House
• What do you do when your pregnant employee is too big? — via Mike Haberman’s Omega HR Solutions
• Is Paternity Leave for Lawyers an Oxymoron? — via Attorney at Work
• State of the Union” on substance abuse and the workplace — via Robin Shea’s Employment & Labor Insider
• What is a “hostile educational environment”? — via Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Learning From Hillary: Using Your Private Email for Black Ops at Your Company — via The HR Capitalist, Kris Dunn
• How Hackers Get Their Big Breaks: The Video — via Ride The Lightning
• What Would You Do If an Employee Tweeted Something THIS Detestable? — via Inc.com
• Should I post about work on my social media accounts? — via Genesis HR Solutions
• Sample Social Media Policy for Small Businesses — via Acacia HR Solutions
• Who Will Update My Status When I’m Dead?: The Biggest Social Media Platforms’ Policies on Deceased-User Accounts — via Socially Aware Blog
• Apple Watch and the Enterprise: Oh, God. This is Kinda Dumb. — via YourHRGuy

HR & Employee Relations

• 15 workplace behaviors that could get you fired — via Ragan.com
• Employer Can Be Found Liable For Misappropriating An Employee’s Trade Secrets — via Trading Secrets
• Non-Compete Agreements Are The New Black, Part 1 — via Texas Employment Law Blog
• Can Employers Prohibit Secret Workplace Recordings? — via HR Law Matters
• an employee made an anonymous complaint to OSHA — how can I stop it from happening again? — via Ask a Manager
• “You’re getting laid off! You’re getting laid off! Everybody’s getting laid off!” — via EntertainHR
• Employers, employees see work-life balance through different lenses — via HR Hero Line

Wage & Hour

• Wait! Stop! Is Your Severance Arrangement Subject to ERISA? and Should You Create an ERISA Severance Plan? — via The Emplawyerologist
• Can Your Company Require an Employee to Buy Health Insurance? — via TLNT
• Armored Car Drivers Who Drove Vehicles Weighing Less Than 10,000 LBS as Well as CMVs Non-Exempt and Entitled to Overtime — via Overtime Law Blog
• The Overtime Fight For Document Review Continues — via Above the Law
• Ineligible Employee Still Gets FMLA Leave Due To Incomplete Policy — via Minnesota Employment Law Report

Labor Relations

• The NLRB is Changing the HR Game in April — via Blogging4Jobs
• NLRB to Begin Training Staff on New Quickie Election Rules — via Labor Relations Today
• Avoiding Union Avoidance — via Workplace Prof Blog
• Good roundup of Right to Work — via Labor Relations Institute
• Teamsters and Technology : Developing Labor Issues for Technology Industry Employers — via Management Memo

When the government comes knocking, don’t forget not to retaliate

Last week, I wrote about what to do when OSHA comes knocking. One issue I did not address is the potential for retaliation against employees who provide information to, or otherwise cooperate with, the government.

Thankfully, the Department of Labor, on its own blog, recently provided a not-so-subtle reminder:

Employee cooperation and candor are crucial to these efforts. Just as important, employees who give testimony are protected … from retaliation or discrimination of any kind on account of their cooperation.

Whether it’s the EEOC, the DOL (Wage and Hour or OSHA), or the NLRB, employees not only have the right to file complaints or charges, but they also have the right to provide information to the investigating agency or otherwise cooperate in the investigation. For example, if OSHA is coming into your business, the inspector will almost certainly want to interview some of your employees. If they are non-management employees, you have no right to participate in or observe the interview.

It is critical that both before and after the investigation you communicate to your managers and supervisors that retaliation will not be tolerated. It’s also a good idea to communicate the same to your employees. Having, and documenting, this communication will be your best friend in the event that you have to take a legitimate adverse action against an employee on the heels of his or her participation in a government investigation.

Company expands leave benefits for working mom, but what about the dads?!

The Washington Post’s On Leadership blog reports that global telecomm company Vodafone is establishing a new global maternity leave policy for all 30 of its operating companies: 16 weeks of paid maternity leave, plus a 30-hour work week with no reduction in pay for the first six months after retuning from maternity leave.

This policy is very generous, and, for its American operations, is a big step in the right direction towards aligning American maternity leave policies with those around the world (something on government has been unwilling, or unable, to accomplish). However, in rolling out this policy, Vodafone should not forget about the dads. We want flexibility too. A policy that offers parental leave, or reduced work schedules, other family-related benefits to women but not to men violates Title VII on its face.

Gender-neutral policies (those that extend the same benefits to moms and dads) are not safe from legal scrutiny. These policies must be neutral in their drafting and their application. An employer cannot overtly or subversively punish a dad who avails himself of such a benefit out of some stereotyped notion that family issues are the woman’s responsibility. Sexual stereotyping is illegal sex discrimination under Title VII.

The bottom line—moms and dads deserve to have careers and families. Balancing the two is hard enough without employers piling on.

For more on this important issue, I cannot more highly recommend reading An Apology to Dads Working, Too?, on Rob Schwartz’s Dad Working blog.

#SCOTUS ambushes employers on agency rulemaking

Yesterday, the U.S. Supreme Court unanimously held that the Department of Labor’s Wage and Hour Division had the authority to alter its prior interpretation of the FLSA’s administrative exemption and exclude mortgage-loan officers from its coverage. The decision—Perez v. Mortgage Bankers Assn. [pdf]—is an interesting read if you are into administrative law, agency rulemaking, and the difference between “legislative rules,” which an agency only can issue through formal notice-and-comment rulemaking, and “interpretative rules,” which do not carry the force and effect of law and which an agency can adopt on a whim.

The Supreme Court could have used the opportunity presented by Perez v. Mortgage Bankers Assn. to rein in federal agencies that are emboldened with power. It did not take that bait, even though Justice Scalia, who concurred in the result, had some harsh words for federal agencies that legislate instead of regulate:

Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment.

This issue is of critical importance, considering the NLRB’s “ambush election” rules, which take effect on April 14. These rules will:

• Require that most union representation elections be held 10 – 21 days after a petition has been filed, robbing employers of the opportunity to deliver their message to employees.
• Defer disputes over voter eligibility until after the election.
• Expedite pre-election hearings.
• Mandate that employers provide more expensive employee contact information.

If federal courts must show broad deference to administrative rulemaking, as Perez v. Mortgage Bankers Assn. suggests, employers do not stand much of a chance to block these “ambush election” rules, even as lawsuits are filed and legislation pushed.

If these ambush rules are a fait accompli, what can employers do to minimize the risk of being on the losing end of a union organizing campaign? I advocate the TEAM approach to union avoidance.

          Train supervisors
          Educate employees
          Affirm the open door
          Modernize policies


1. Train Supervisors. If a union is organizing, supervisors are likely to be the first people to know. They will also be the people that rank-and-file employees will come to with questions or concerns. Thus, supervisors need to know how to report, monitor, and legally respond to union activity.


2. Educate Employees. Employees should not be told that the company is anti-union, but why it is anti-union – competitive wages and benefits; positive communication between management and employees; history of peaceful employee/management relations; management’s openness to listen to employees and handle their concerns without an intermediary; and an unwillingness to permit a third-party to tell the company and employees how to do their jobs.


3. Affirm the open door. Management should routinely round its employees to learn what is happening and what they are thinking. Management should walk the floor on a daily basis. It should also hold regular meetings with employees, whether in small sessions with HR or large town hall-style meeting.


4. Modernize Policies. In an ideal world, employee handbooks and other corporate policies should be reviewed and updated annually. I’ve yet to come across a company that does so this frequently. These ambush election rules are the perfect excuse to take a good, hard look at current policies. Do you have a written statement on unionization? An open door policy? An issue resolution procedure? Peer review? An employee bulletin board? An electronic communications policy? Most importantly, do you have a no solicitation policy? It is the single most important policy to help fight labor unions.

Because employers will no longer have the opportunity to run an meaningful campaign after a union files its representation petition, it is essential that employers address these issues proactively before a union talks to even one of your employees.

To learn how to deploy this critical strategy in your workplace, contact one of Meyers Roman’s labor and employment attorneys.

Is your company ready for WYOD?

At 1 pm today, Apple will formally unveil its Watch to the public. While other companies have launched smartwatches, because it’s Apple, today’s launch of the Apple Watch will officially herald the beginning of the era of wearables.

If the era of wearables is upon us, it means that as soon as your first employee wears a smartwatch to work, your HR, legal, and IT departments have a whole host of new issues with which to deal.

Better stated, the issues aren’t new, but their application to an evolving technology is.

If your organization already has a BYOD (Bring Your Own Device) policy, then you are well ahead of the game. You will, however, have to adapt that policy to account for WYOD (Wear Your Own Device). All you’ll have to do is extend your BYOD to expressly cover wearables. These devices will bring email, text messages, financial information, and health data to a smaller, even more portable form. And, the more avenues your employees have to access your network and data, the more ingresses hackers have to steal information and do other bad things. In other words, you need to understand wearables, and account for them in your policies, because your employees aren’t going to wait for an official green light to start using them.

If you don’t have a BYOD policy, what are you waiting for? These issues aren’t going away. What should you be considering? Here is a good starting point.