WIRTW #364 (the “almost famous” edition)

“Daddy, this guy wants to talk to me, but he needs your permission first.” My daughter came running over to me last Saturday at the Rock Hall with those words. She was waiting backstage for her Joan Jett band to go on. Typically, that statement would have given me pause, but given the number of news cameras that were around, I had an idea “this guy” was legit. Here’s the result:

This wasn’t Norah’s only press of the day. Here’s a clip from another local news channel, this one of a “future superstar” (their words, not mine) doing her thing on stage:

The hits keep on coming for my little girl, and I’ll keep sharing them.

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

Discrimination

• Do You Hear What I Hear? Accent Discrimination in the Workplace. — via Fitzpatrick on Employment Law
• Can you sack an employee for having “friends with benefits”? — via Employment Law Worldview
• Equal Protection, LGBT and Religious Freedom — via Cleveland Employment Law Blog
• Sniffing out an ADA case: Aromatherapy at work sparks questions — via HR Hero Line
• EEOC: U.S. Army’s bathroom restriction on transgender employee was sex discrimination — via Eric Meyer’s The Employer Handbook Blog
• Telecommuting as a reasonable accommodation: EEOC v. Ford Motor Company en banc Decision — via Understanding the Americans with Disabilities Act (ADA)
• Special Post: 6th Circuit Reverses Its Decision on Telecommuting and the ADA–But Does it Change Anything? — via The Emplawyerologist
• More Road Rules: Telecommuting as a “Reasonable Accommodation” Under ADA Gets an Update — via Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• Litigators Who Don’t Know Enough About E-Discovery Should Be Afraid, Very Afraid — via Above the Law
• The “Where” of Data Security — via Privacy and Data Security Insight
• The Use of Social Media During the Hiring Process: Do the Benefits Outweigh the Risks? — via New York Labor and Employment Law Report

HR & Employee Relations

• Bring Your Child to Work Day: Swap Your Briefcase for a Backpack — via ERC Insights Blog
• When Employees Steal: Five Reasons Your Business Could Be Vulnerable to Fraud — via FRAUDfiles
• Work-Life Friendly Employers Are a Click Away — via Families and Work Institute Blog
• Paternity Leave Workplace Basics — via Blogging4Jobs

Wage & Hour

• DOL to Enforce Same-Sex Spouses FMLA Regulation In All But Four States — via The Labor and Employment Law Blog
• DOL Will Not Enforce Final FMLA Regulation Regarding Same-Sex Spouses in Four States — via Jeff Nowak’s FMLA Insights
• What Can an Employer Do If an Exempt Employee Fails to Work 40 Hours? — via Evil HR Lady, Suzanne Lucas
• Pennsylvania Federal Court: Cosmetology Student Not An “Employee” Entitled To Minimum Wage — via Wage and Hour Law Update
• 9th Circuit Splits with 4th, 5th Circuits, Finds Auto Dealer Service Advisors Not Exempt Under FLSA — via Doug Hass’s Wage & Hour Insights
• Is Your Social Media Influencer or Blogger an Employee or an Independent Contractor? What Companies Need To Know Before They Engage Bloggers and Other Independent Contractors — via Employment Law Watch

Labor Relations

• Why We’ve Decided to Organize — via Gawker
• Quickie elections, ASAP! — via Robin Shea’s Employment & Labor Insider
• NLRB Representation Rules Now in Effect — via Workplace Prof Blog

Your employees are your biggest security risk

It seems that every week we read a story about another company that has been hacked and had its information and data compromised. Most companies believe that their greatest security risk comes from cyber terrorists overseas—nameless and faceless hackers sitting in some high tech hovel in some foreign country.

Your greatest security risk, however, comes from within—your own employees.

Case in point? This story, via Fusion:

In January, authorities arrested Eddie Raymond Tipton, the Director of Information Security for the Multi-State Lottery Association, a non-profit organization that runs multi-state games for 33 different state lotteries, on charges of fraud.… Tipton is being accused not just of claiming a winning ticket he wasn’t allowed to have, but hacking into the lottery’s random number-generator software to engineer a win for himself.… 

According to the court documents, the Multi-State Lottery Association’s random-number generator computers are disconnected from the Internet and kept in a locked, glass-walled room that is under 24-hour video surveillance. Prosecutors allege that Tipton entered the room on November 20, 2010, changed the camera’s settings to have it record less frequently, and inserted a USB drive containing malware that would manipulate the results of the upcoming lottery drawing.

I'm not saying that the threat from your employees comes from the type of malicious mischief of which Tipton is accused. With data security, sins of omission can be as deadly as sins of commission. Do you have a Bring Your Own Device Policy? Do you have employees sign confidentiality agreements? Do you train your employees on the evils of unsecured WiFi and what to do when a mobile device goes missing? If not, you are being cavalier with your data security, which places your entire business at risk of being the next big data breach story.

Sex stereotyping as transgender discrimination

Last week the EEOC settled, for $150,000, one of its first cases alleging sex discrimination against a transgender employee. This week, another transgender employee filed a remarkably similar lawsuit in federal court in Louisiana. The key difference between the two cases? The Louisiana employer had a formal policy against employees presenting at work as a gender other than their birth gender:

Title VII does not (yet) specifically identify “sexual orientation” as a protected class. But, sexual stereotyping has been illegal for decades. Keep this in mind, and keep an open mind, if your employee shows up as John on Friday and Joan the following Monday.

EEOC seeks a quarter-billion dollars from NYC

Earlier this month, the EEOC’s New York District Office issued a Determination [pdf] finding probable cause to believe that New York City violated Title VII and the Equal Pay Act through a “pattern of wage suppression and subjective promotion based on … sex, race, and national origin.” The conciliation agreement the agency proposed seeks compensation in excess of more than $246 million. That eye-popping number should catch the attention of every employer.

While settlement proposals are merely numbers on a piece of paper, and no one expects NYC to roll over and play dead, this story holds an important lesson for employers. The EEOC, which is an agency of limited financial resources, is going to go after that which will provide the most bang for its buck. If you are a large employer, you have a large target on your back, and the EEOC is taking aim. Yet, even small employers should show concern, because while the size of the target is might be proportionate to the size of the employer, even a small hit can prove devastating for a small employer. If you are not currently under investigation (and most of your aren’t), consider yourself as living on borrowed time. Take advantage of it. Use this time to audit all of your HR and employer practices (hiring, firing, pay, policies, etc.) to ensure compliance with all employment laws, including Title VII. It might sound trite, but knowledge really is power. Better to find out that you are out of compliance before an agency knocks on your door than after.

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