WIRTW #365 (the “en français” edition)

One of the curricular pieces I love about my kids’ school is that they start foreign language in kindergarten. My daughter, Norah, is now in her 4th year of French (which she gets every other day), and my son, Donovan, gets both French and Spanish, alternating each day.

When we attending Norah’s first parent/teacher conference when she was in kindergarten, I remember her French teacher telling us all about the play that would cap their year. I sat in disbelief as she explained how the kids would perform “La Poule Maboule” (Chicken Little), all in French. Imagine my surprise a few months later when I sat at school and watched the kids masterfully pull it off.

Now, three years later, the performances are no longer a surprise, but are still a delight to experience how little minds soak up foreign languages.

So, I present Donovan’s kindergarten class performing “La Poule Maboule,” and Norah’s 3rd grade class performing “Comment y Aller.”

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

Discrimination

• Well, that stinks! Doo-doo creates a discrimination claim. — via Eric Meyer’s The Employer Handbook Blog
• When Are Reasonable Accommodations NOT Required For a Disabled Employee? — via Minnesota Employer
• EEOC Launches Digital Charge System — via Workplace Prof Blog
• Does Title II of the ADA Apply to Employment? Two Views — via Understanding the Americans with Disabilities Act
• Timing of termination creates question of fact in association discrimination case — via EmployerLINC
• EEOC Denied Inspection Of Employer’s Premises — via Workplace Class Action Litigation

Social Media & Workplace Technology

• Regulatory Update: DOJ and SEC Issue Privacy and Cybersecurity Recommendations — via Privacy and Data Security Insight
• Social Media Assets in Bankruptcy: Facebook and Twitter Accounts Subject to Reach of Creditors — via Socially Aware Blog
• Five Key Social Media Questions All Health Care Employers Should Consider: Question #1: When is it okay to fire an employee for a social media post? — via netWORKed Lawyers
• The poisonous nature of too much of our online dialogue — via Minding the Workplace
• One-third of jobs will be replaced by robots — via Inhouse Blog
• You can’t spell “idiot”  without IoT (Internet of Things) — via The Verge

HR & Employee Relations

• How to Keep Your Office Weird, Without Getting Sued — via In House
• Millennials want a work-life balance. Their bosses just don’t get why. — via Washington Post
• Unlimited Vacation, Free Beer and Kids at Work. Is this the Future Workplace? — via Rush on Business
• People Are Not Trade Secrets — via HR Examiner with John Sumser
• Making the Case for Pre Employment Personality Tests — via Newton Software Blog
• What do you do with old personnel records? — via Mike Haberman’s Omega HR Solutions
• Arbitration … be careful what you ask for — via Michigan Employment Law Connection

Wage & Hour

• Study: minimum wage hurt employment, earnings, mobility for low-skill workers — via Walter Olson’s Overlawyered
• NFL Cheerleaders To Be Deemed “Employees” And Protected Under Proposed Law — via Wage & Hour - Development & Highlights
• FLSA Exemption Changes: More On Salaried-Employee Alternatives — via Wage and Hour Laws Blog
• Wage and Hour Basics Series: Penalties for FLSA Non-Compliance — via Wage & Hour Insights
• Proposed overtime rule has been sent to OMB — via Robin Shea’s Employment & Labor Insider
• Intermittent FMLA — and More Recurring Issues — via The Emplawyerologist

Labor Relations

• Inside the Case That Could Hold McDonald’s Responsible for Union-busting — via Workplace Fairness
• Cleaning Up Your Employee Handbooks, NLRB-Style — via Dan Schwartz’s Connecticut Employment Law Blog
• Employer beware: NLRA rulings often conflict with existing employer policies — via Technology for HR

OSHA chimes in on transgender bathrooms

OSHA is no stranger to regulating workplace bathrooms. Now, Employment Law 360 [sub. req.] reports that OSHA and the National Center for Transgender Equality “have entered into a partnership to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms.” According to NCTE Executive Director Mara Keisling, “Transgender workers can be prevented from using common workplace restrooms, which is a threat to their physical health and a violation of federal law.” Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels adds, “Through this alliance, we will jointly work with the NCTE to develop products and guidance materials to improve workplace safety and health for all workers.”

This is an interesting issue, and, especially for employees and employers for whom this issue causes some degree of discomfort, can present a real problem. Yet, this is a problem with a simple solution—establish a unisex bathroom. Or, you can permit transgender employees to use the bathroom of the gender with which they identify. Either way, this is an issue you should be discussing with your employees and building in your EEO / anti-harassment training. This issue is not going away (see Bruce Jenner), and the sooner you address it in your workplace, the less risk you are taking.

[Image courtesy of Robin Shea’s Employment & Labor Insider]

Is hiring for “digital natives” age discrimination?

Let’s say you’re looking to fill a position at your company that requires a certain degree of technical proficiency. Or, you just want to make sure that the person you hire is comfortable with a computer, an email account, and an iPhone. Is it legal to advertise that the position requires a “digital native?” According to Fortune.com, some companies have begun using this term as a hiring criteria in job postings. Yet, is “digital native” simply code for “younger?”

“Digital native” certainly appears to be a loaded term. According to the Fortune article, some employment attorneys believe that the “trend” towards digital natives is “troubling” and “a veiled form of age discrimination.”

• “This is a very risky area because we’re using the term that has connotations associated with it that are very age-based. It’s kind of a loaded term.” Ingrid Fredeen, attorney and vice president of NAVEX Global

• “I don’t believe using ‘digital native,’ a generational term, as a job requirement would stand up in court. I think older individuals could definitely argue ‘digital native’ requirements are just a pretext for age discrimination.” Christy Holstege, California civil rights attorney

Let me offer a counter-argument. I’m 42 years old, more tech savvy than most, and, by any definition, a digital native. I’ve been using computers since my early grade-school years. I’d fit any criteria seeking a “digital native,” and, yet, I’m also inside the age-protected class. While I do not believe companies should use “digital native” in job advertisement or descriptions (just as I wouldn’t use “recent graduate”), one challenging its use cannot examine that use in a vacuum. Instead, take a look at the hiring demographics. How many employees over 40 (over 50, over 60) hold a position that calls for a digital native. If the answer is “none,” then the employer has a huge problem. If, however, there exists a good mix of ages—both outside and inside the protected class—then there also exists a great argument that the term “digital native” has no loaded, illegal subtext.

Failure to accommodate may not equal retaliation, says federal court

In Neely v. Benchmark Family Services (S.D. Ohio 4/21/15), the plaintiff claimed that his employer retaliated against him for failing to accommodate his undiagnosed alleged sleep disorder. His symptoms included averaging two or three hours of sleep per night, and randomly falling asleep during the day, including while at work. The court dismissed Neely’s ADA discrimination claim and failure to accommodate claim, in large part because there was no evidence that his sleep issues had a medical root. Then the court turned to Neely’s retaliation claim:

One might wonder how retaliation claim in the absence of a disability can be squared with the text of the statute…. The line of cases relied upon by the Sixth Circuit explains that “[a]n individual who is adjudged not to be a qualified individual with a disability may still pursue a retaliation claim under the ADA as long as [he] had a good faith belief that [a] requested accommodation was appropriate.” Thus, “although ‘[i]t is questionable’ whether an employee who merely requests a reasonable accommodation ‘fits within the literal language of the statute,’  we are bound … to conclude that making such a request is protected activity….”

Plaintiff would have the Court extend this reasoning even further to himself, a litigant who was not disabled under the act, unlike the cited cases, did not request an accommodation and had not yet filed a formal charge…. Other courts have refused to extend retaliation claims to employment actions taken after an employee’s complaints of health conditions to a manager, and so will this Court.

What does this mean for you, as a practical matter? When an employee complains about a health problem at work, do your diligence. Determine if the employee is requesting an accommodation. If so, seek and gather from the employee medical information in support of the claimed disability and the requested accommodation. Then, make an informed decision about whether the employee is disabled if and if you should offer an accommodation. These steps will put you in the best position to defend against discrimination, accommodation, and retaliation claims under the ADA.

Let’s start treating salaried workers like salaried workers

I’ve been thinking a lot lately about what it means to be a salaried exempt employee. The classification is significant, because it enables an employer not to pay the employee overtime for an hours worked over 40 in week.

To qualify under most of the FLSA’s exemptions, the employee must be paid on a salary basis, which means that the exempt employee must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. For this reason, the FLSA only permits an employer to take deductions from an exempt employee’s salary in very limited circumstances:

• For full workweeks in which the exempt employee performs no work.
• For an exempt employee who is absent for a full work day for personal reasons other than sickness or accident. 
• For an exempt employee absent a day or more for sickness or disability, if the company maintains a plan that provides compensation for loss of salary caused by sickness and disability and the employee exhausted that leave.
• For penalties imposed for violation of safety rules of major significance.
• To offset any amounts received by an employee as jury or witness fees, or military pay.
• For unpaid disciplinary suspensions of one or more full work days for workplace conduct rule violations.
• For partial weeks worked during the initial or final weeks of employment. 
• For an exempt employee working a reduced or intermittent work schedule under the Family and Medical Leave Act.

Otherwise, if an employer deducts pay from an exempt employee’s salary for time missed for any other reason, that deduction will cause the employer to lose the benefit of that employee’s exemption for that work week. Moreover, it will also cause the employer to lose the benefit of the exemption for any other employee working in the job classification for the same manager, regardless of whether any of those other employees also suffered improper deductions that week. 

As Chris McKinney recently pointed out on his Texas Employment Law Blog, noticeably missing from any discussion of improper salary deductions is deductions from banks of paid time off. Indeed, the FLSA permits an employer to dock vacation time in any increment, and force a salaried exempt employee to use vacation or other paid time off to cover time away from work without jeopardizing that employee’s exempt status. 

Perhaps the question employers should be considering, however, isn’t whether the FLSA permits deductions from an employee’s paid time off in increments of less than a full work day, but whether it makes sense to take those deductions at all. Above all else, being a salaried exempt employee means that you work until you get the job done. Some weeks it means that the employee works 40 hours, some weeks 60 hours, and some weeks even more. And, it also means that some weeks, the employee works less than 40 hours. If a salaried exempt employee is performing (that is, getting the job done in a timely and quality manner), then if that employee needs a few hours off to take a child to a doctor’s appointment, or a half-day to attend an event at a child’s school, do we really need to nickel-and-dime that employee over a few hours of PTO? Or, do we recognize the employee’s diligent performance, permit the time off, with the understanding that the time will be “made up” when the employee works to get the job done? You can can which option I prefer.

WIRTW #366 (the “same-sex marriage” edition)

Earlier this week, the U.S. Supreme Court heard oral argument in Obergefell v. Hodges, one the Court’s most anticipated cases in years, which will (hopefully) decided the fate of same-sex marriage rights.

The web’s best coverage of the oral argument and its implications comes from SCOTUSblog:

• “Super-cuts” from same-sex marriage arguments
• No clear answers on same-sex marriage: In Plain English
• Argument analysis: Justice Kennedy, hesitant but leaning
• Evening round-up: Today’s argument in Obergefell v. Hodges

Stay tuned. The decision is expected in June, and I’ll be sure to report on its implications for your workplace.

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

Discrimination

• If Bruce Jenner Were Your Employee — via Inc.com
• “My religion or my job?” That’s a bad workplace question. — via Eric Meyer’s The Employer Handbook Blog
• EEOC Commissioner Offers Helpful Guidance to Employers on Providing Accommodations to Pregnant Employees — via Jeff Nowak’s FMLA Insights
• Look! Abercrombie Finally Shifts Hiring Focus After Years of Lawsuits — via In House
• EEOC Considers Commuting a Major Life Activity — via FEDweek
• Spate of Gender Discrimination Lawsuits Against Silicon Valley Technology Companies Highlights the Importance of Adopting and Enforcing Anti-Discrimination Policies and Procedures — via Technology Company Counselor
• You Accommodate Your Employees, But Do They Accommodate Your Customers? — via All in a Day’s Work
• Hey – that EEOC wellness rule isn’t half bad — via Robin Shea’s Employment & Labor Insider
• Company Settles ADA Suit Alleging Violation of Law’s Medical Inquiries, Confidentiality Clauses — via Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• What Do You Do When The Ugly Allegations In A Lawsuit Against Your Company Go Viral? — via The Labor Dish
• Periscope hit 1 million users in its first 10 days — via The Verge
• Do You Lock Your Phone with a Passcode? — via Lifehacker
• Will the Second Circuit “Like” the NLRB’s Recent Stance on Social Media? An Update on the Facebook “Like” Firing Case — via Employment Matters Blog

HR & Employee Relations

• Is 2015 Becoming the Year of the Employee? — via TLNT
• Watch This Great Webinar on Working Dads, Paternity Leave and Workplace Flexibility — via Fathers, Work and Family
• Weasels and Sociopaths — via HR Examiner with John Sumser
• Is HR Legally Liable for a Boss’s Bad Behavior? — via Evil HR Lady, Suzanne Lucas
• My Co-Worker Called Me A Mother F!@#%r — via Evil Skippy at Work
• The 18 Hottest Background Screening Trends — via Newton Software Blog
• OSHA steps into center ring in unusual accident probe — via Business Management Daily

Wage & Hour

• FLSA Exemption Changes: Some Compensation Alternatives For Salaried Employees — via Wage and Hour Laws Blog
• Gawker FLSA Collective Action Illustrates Clash of Technology and Law — via Above the Law
• Reimbursing Employees for Business Expenses: The FLSA Kickback Rule — via Wage & Hour Insights
• Is Intermittent FMLA Giving You a Chronic Headache? — via The Emplawyerologist
• Eighth Circuit Holds Early Stage Illness Does Not Warrant FMLA Leave — via Minnesota Employment Law Report

Labor Relations

• When Reviewing a Reinstatement Decision by an Arbitrator, Consider Over a Dozen Factors — via Dan Schwartz’s Connecticut Employment Law Blog
• Update on NLRB Election Rules Challenge — via Workplace Prof Blog
• The More the Merrier? A New Lawsuit Against the NLRB’s Election Rule Encounters an Early Setback — via Vorys on Labor
• Con-Way Says No To Teamsters — via Labor Relations Today
• Ambush Elections: Use the Force? — via Labor Relations Institute

Supreme Court ruling on EEOC conciliation obligations is a Pyrrhic victory for employers

One question that employers always ask upon receipt of an EEOC charge of discrimination is, “How does this process work?” After the EEOC concludes its investigation, it has two basic options. It can conclude that no reasonable cause exists that the employer violated Title VII and dismiss the charge (leaving the employee to file his or her own lawsuit in federal court within 90 days), or conclude that reasonable cause does exist (again leaving the employee to file his or her own lawsuit, or instituting a lawsuit on the employee’s behalf).

Before the EEOC can file its own discrimination lawsuit against an employer, Title VII requires that the agency “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” What happens, however, if the EEOC fails to conciliate? What is scope of the EEOC’s conciliation obligation? And does a failure act as a bar to any subsequent lawsuit filed by the EEOC?

These were the question the Supreme Court considered in Mach Mining, LLC v. EEOC [pdf]. This is what the Court unanimously concluded:

1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation.

2. The statute only requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. Such notice must describe what the employer has done and identify the employees (or class of employees) that have suffered. The EEOC then must try to engage the employer in a discussion to provide the employer a chance to remedy the allegedly discriminatory practice. Title VII does not, however, require a good-faith negotiation.

3. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.

4. Should a court conclude (based on “concrete evidence” presented by the employer) that the EEOC did not provide the employer the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, the appropriate remedy is to stay the proceedings and issue an order requiring the EEOC to undertake the mandated conciliation efforts. Dismissal of the lawsuit is not warranted in these circumstances.

Technically speaking, you can chalk this case up as a victory for employers, albeit a narrow one. The Supreme Court refused to hold that Title VII imposes a duty on the EEOC to negotiation in good faith, and that the agency satisfies its obligation to conciliate merely by providing notice and an opportunity to discuss. Moreover, a failure to conciliate doesn’t serve as a jurisdictional bar to litigation, but merely results in the EEOC being told to “try again, this time with meaning.”

If nothing else, this case sends a strong message that courts favor resolution, not litigation.