Some thoughts on accommodations and flexible workplaces

I’ve been thinking a lot over the past three days about the flexibility that employers afford their employees. I am part of a family with two working professional parents (one of whom travels a great deal), and two young children. If I did not have flexibility in where I perform my job, my life would become exponentially more difficult in light of my wife’ travel schedule. The reality is that technology (specifically iPhones, emails, laptops, and iPads) makes work easier. I no longer need to be tethered to my office to be productive. Yes, I enjoy coming to work. I like the camaraderie of my co-workers. I like seeing and talking to other people. I’m a social person and I like being social. But, I can write a brief, or counsel a client, from anywhere. I don’t need my office to produce. 

Last Friday, the 6th Circuit decided EEOC v. Ford Motor Co., which, according to the Court, applied “common sense” to decide that “regular on-site attendance is required for interactive jobs, and that “regular, in-person attendance is an essential function … of most jobs….” I could not disagree more. When the 6th Circuit originally decided this case one year ago, it relied on technology to determine that employers should at least consider whether telecommuting is a reasonable accommodation for a particular job.

As technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties.

My main problem of the re-hearing panel’s decision is that the “common sense” it is applying is rooted in 1965, not 2015. To paraphrase John Oliver from last night, just as it is no longer acceptable to slap a female co-worker on the backside while calling her “toots,” it is no longer acceptable to assume that work must be performed at work. While I haven’t read the 1,400 page record of the Ford case to determine whether physical attendance at work was essential for this plaintiff’s job, my main critique of this decision is that it swings to needle too far to the side of inflexibility. It sets inflexibility as the rule, and telecommuting as the exception. I would flip the rule.

Telecommuting is an important benefit that promotes work/life balance for employees. It is great benefit that employers should be using to attract and retain employees for whom this benefit matters. With the state of technology in 2015, there is little reason that employer should not be doing so.

BREAKING: 6th Circuit says telecommuting is not a reasonable accommodation under the ADA

Almost one year ago, in EEOC v. Ford Motor Co., the 6th Circuit recognized telecommuting as a potential reasonable accommodation under the ADA. This morning, the same court issued its rehearing decision [pdf] in the same case, and the news is not good for those who are fans of workplace flexibility (me included).

Here is what the court said, in a nutshell:

A sometimes-forgotten guide likewise supports the general rule: common sense. Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job…. Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

I’ll have my full analysis on Monday morning. Here’s a sneak peak—I think this decision stinks.

WIRTW #363 (the “iron throne” edition)

I was a Sesame Street kid. Muppets taught me to read, count, and have manners.

I’m a tad late, however, to Game of Thrones. I’ve been frantically binge watching, trying to catch up before Season 5 begins (or, more likely, ends – I’m nearly through Season 3 as I type).

What do you get when you marry these two shows? Game of Chairs, of course.

How many Game of Thrones references can you catch?

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

Discrimination

• EEOC on Transgender Harassment, Discrimination, and Restrooms — via Phil Miles’s Lawffice Space
• A white employee tossed banana peels at work, and HE claims discrimination. He might WIN too. — via Eric Meyer’s The Employer Handbook Blog
• Are fraternities subject to title III of the ADA? — via Understanding the Americans with Disabilities Act 
• Five Lessons For Employers From the Ellen Pao Verdict — via California Employment Law
• SEC Clamps Down On Employee Agreements Thought to “Chill” Whistleblower Activity — via Employment Law Worldview
• After Ellen Pao’s Loss, More Women In Tech Bring Gender Discrimination Lawsuits — via Workplace Fairness

Social Media & Workplace Technology

• Cyber Security Competition Kicks Off — via The ChamberPost
• Cyber Insurance: What do Cyber Insurance Policies Cover and Cost? — via Privacy and Data Security Insight
• We Continue to Miss the Texting Opportunity In HR — via The HR Capitalist, Kris Dunn
• Do Employers Own LinkedIn Groups Created By Employees?–CDM v. Sims — via Technology & Marketing Law Blog
• Social Media and Time Management: Boogeyman or Symptom? — via Next Blog
• Why Do We Publicly Shame People Out of Their Jobs? — via Harvard Business Review

HR & Employee Relations

• Recognizing the Red Flags of Fraud — via FRAUDfiles
• The Unique World of “Leave of Absence” Policies — via ERC Insights Blog
• “Just Give Me a Reason” Not Enough to Satisfy Just Cause Provision — via Dan Schwartz’s Connecticut Employment Law Blog
• Employment Lessons from Germanwings: Why Mental Health Is So Important — via Employment Intelligence
• L. Ron Hubbard's Best Career Lessons — via Lifehacker
• Life in an Inflexible Office — via 1 Million for Work Flexibility
• Training Video on Millennials in the Workplace. — via What About Clients?
• Check Out The FTC’s Newly Revised Background Checks Brochure — via FYI Screening

Wage & Hour

• Hey Employer don’t look to the USDOL for help — via Mike Haberman’s Omega HR Solutions
• An Argument for Unfair Pay — via Compensation Cafe
• When Paying Accrued “Vacation” at Termination, Labels Don't Matter [Wage & Hour FAQs] — via Wage & Hour Insights
• Wal-Mart Part Deux? Company Appeals Class-Case to Supreme Court — via Workplace Prof Blog
• Does FMLA Cover In Vitro Fertilization? Does It Matter if Dad's Sperm is to Blame? — via Jeff Nowak’s FMLA Insights
• Intermittent FMLA Leave: A Chronic HR Headache (Part I) — via Southwest Florida HR Law & Solutions

LGBT rules for federal contractors now in effect

If you are a federal contractor or subcontractor, this is big week for you. On April 8, the OFCCP’s Final Rule Implementing Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors took effect.

What does this mean for federal contractor’s and subcontractors?

• You must take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
• You must include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
• You must update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
• You must post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Here’s what President Obama said when he signed the Executive Order last year:

It doesn’t make much sense, but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are—lesbian, gay, bisexual, transgender. And that’s wrong. We’re here to do what we can to make it right—to bend that arc of justice just a little bit in a better direction….

Equality in the workplace is not only the right thing to do, it turns out to be good business. That’s why a majority of Fortune 500 companies already have nondiscrimination policies in place. It is not just about doing the right thing—it’s also about attracting and retaining the best talent….

And yet, despite all that, in too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense….

For more than two centuries, we have strived, often at great cost, to form “a more perfect union”—to make sure that “we, the people” applies to all the people. Many of us are only here because others fought to secure rights and opportunities for us. And we’ve got a responsibility to do the same for future generations. We’ve got an obligation to make sure that the country we love remains a place where no matter who you are, or what you look like, or where you come from, or how you started out, or what your last name is, or who you love—no matter what, you can make it in this country.

Here’s to a day, hopefully in the very-near future, when this arc of justice no longer needs to be bent.

Direct evidence must … wait for it … exist to matter in a discrimination case

You have admire the creativity of attorneys. In Butler v. The Lubrizol Corp. (Ohio Ct. App. 3/31/15) [pdf], the plaintiff argued that direct evidence of race discrimination existed because, when confronted with a complaint of discrimination, the plaintiff’s supervisor did not deny it. The appellate court, in affirming the dismissal of the plaintiff’s claims, disagreed:

Specifically, appellant states the trial court erred by declining “to hold that a direct evidence method of proof can be made in a discrimination case based on an ‘admission by omission’….” His argument is that although Decker never admitted to making decisions based on race, he also never denied it, and that the lack of a denial can be used as direct evidence that the accusations are in fact true….

The trial court stated that appellant’s evidence of Decker’s silence “would require the finder of fact to infer solely from Decker’s failure to directly address the accusation of race discrimination that the accusation is true.” … We agree….

Discrimination cases are laced with emotion. The plaintiff, in essence, is accusing the employer and its management of bigotry of one kind or another. When confronted with this accusation, it’s okay for a manager or supervisor to show some humanity by denying it, vehemently. Rest assured, however, that silence in the face of these allegations should not hang the employer with the noose of direct evidence of discrimination.

NLRB issues official guidance on “ambush election” rules

One week from today, the NLRB’s “ambush election” rules take effect. Yesterday, the Board published its official guidance discussing how it will process representation cases going forward.

According to the Board, these new rules do not “establish new timeframes for conducting elections or issuing decisions.” Yet even the quickest reading of the guidance memo reveals the opposite. Timeframes for the filing of briefs, the holding of hearings, and other election-related events are accelerated. For example, employers will have only two business days after the approval of an election agreement to provide a voter list to the union (accelerated from seven days). Five days may not seem like much, but, when you add five days here, and five days there, and a few more days elsewhere, you end up with an election process that is extraordinarily shortened, limiting an employer’s ability to effectively mount a campaign to explain its position to its employees.

Curiously absent from the guidance, however, is a target deadline for the holding of the election. Instead, the Board says the following:

The Board has said that the election should be held at the earliest date practicable consistent with the Board’s rules. At this point, because there is no experience processing cases under the final rule, it is not possible to express a standard in terms of a specific number of days from the filing of the petition to the election. Rather, I expect that regional directors will exercise their discretion and approve agreements where the date agreed upon by the parties is reasonably close to the date when an election would likely be held if it were directed.

Employers, however, should not take too much solace from this omission. The Board is on record as saying that elections under the new rules should be held within 10 days. I have no reason to believe that “the earliest date practicable” is anything different than a target of 10 days.

The guidance memo is a necessary read for all employers. You can download it here [pdf].

NLRB eviscerates the line between insubordination and protected concerted activity

Employers struggle with how to handle employees to take to social media to vent about work. And, they do so for good reason. For one, employers risk creating a viral nightmare out of a fleeting vent. Also, the NLRB continues to take a long, hard look at Facebook firings.

Case in point: Pier Sixty, LLC [pdf].

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration. 

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! 

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Not so surprisingly, when the employer learned of the Facebook post, it fired the employee. Also not so surprisingly, the foul-mouthed Facebooker filed an unfair labor practice charge with the NLRB.

The NLRB sided with the employee:

[W]hile distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “fuck” and “motherfucker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.

Even if the air of this workplace is full with tolerated obscenities, should an employer ever have to tolerate this type of language specifically directed at a member of management and his family? More to the point, as the lone dissenter argued:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases NASTY MOTHER F—er and F—ck his mother and his entire f—ing family are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez’ statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

What are the takeaways for employers?

1. Insubordination is insubordination, period. An employer should not have to put up with this type of harsh language specifically directed at a member of management. Nevertheless, this case illustrates the regulatory environment under which employers currently operate, and the scrutiny that even the safest of terminations might receive.
2. If you want to make sure that you have the freedom to discipline any employee for the use of obscenities, it is safest to apply the same standard to all employees. Nevertheless, I firmly believe that the Board missed the mark in this case. There exists a real and meaningful distinction between the occasional conversational f-bomb and “Fuck his mother and his entire fucking family!!!!“