WIRTW #370 (the “I’m ready for my close-up”) edition

What are you doing at 8 pm tonight? I know what I’m doing. I’ll be watching Stossel on Fox Business Network. I was in New York on Tuesday taping a segment that airs on tonight’s show. Here’s the official description of my segment:

With politicians talking about job creation, you would hope government would make it easy to hire people. But the opposite is true. There are a thousand questions you may not ask when hiring someone… “how long have you been working?” or “how tall are you?” could get you into big trouble.

Pop some corn, or, if you’re out and about on a summer Friday eve, set your DVR, to get your seven-minute fix of Hyman on employment law.


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

Discrimination

• Post-trial maneuvering in a discrimination verdict — via Walter Olson’s Overlawyered
• “Must-haves” for your harassment investigation — via Robin Shea’s Employment & Labor Insider
• SCOTUS ruling on religious garb puts employers in a double bind — via HR Café
• Your employee has a fragrance allergy. What does the ADA require you to do? — via Eric Meyer’s The Employer Handbook Blog
• State of Ohio Jumps in and “Bans the Box” For All Civil Service Jobs — via TLNT

Social Media & Workplace Technology

• Keep God in Your Heart-and Off Your LinkedIn Profile — via Suzanne Lucas at Inc.com
• Zoo employee fired over “racist” social-media post — via wpxi.com

HR & Employee Relations

• OSHA and Workplace Violence — via The Emplawyerologist
• MOVE Act Introduced; Non-Compete Agreements Would Be Limited, if Passed — via Dan Schwartz’s Connecticut Employment Law Blog
• Enforcing a Noncompete Agreement Takes More Than Bluffing — via Michigan Employment Law Advisor
• Men Are Struggling With Work-Family Balance, Too — via Huffington Post
• Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review
• Online Background Check Disclosure Form Did Not Violate the FCRA — via Laconic Law Blog
• Employee Resigns: Walk Them Out the Door Or Let Them Work a Notice? — via Fistful of Talent
• 5 New Rules for the World of Work — via Blogging4Jobs

Wage & Hour

• SCOTUS takes another class action case — via Ross Runkel Report
• HR 101: Are You Classifying Your Independent Contractors Correctly? — via TLNT
• General Release May Not Preclude FLSA Claims Says Fifth Circuit — via The Wage and Hour Litigation Blog
• Five most targeted industries for government wage and hour audits — via California Employment Law Report
• Even for Hourly Workers, Calculating the “Regular Rate” Can Be Complex — via Wage & Hour Insights
• Intern Settlement Is a Blockbuster — via Minnesota Employment Law Report
• 3d Cir. Rules on FMLA Definition of Overnight Stay — via Delaware Employment Law Blog
• Court Imposes FMLA Catch-22 — via Donna Ballman’s Screw You Guys, I’m Going Home

Labor Relations

• How the NLRB’s “Quickie” Election Rule Is Impacting Workplace Elections — via TLNT
• “6th Circuit says Michigan tribe subject to federal labor laws” — via How Appealing
• English-Only Rules – A New Unfair Labor Practice — via Employment Essentials
• Hey NLRB: WTF? That Means “Why The Foolishness?” What Did You Think it Meant? — via The Employment Brief
• Why labor groups genuinely believe they can unionize McDonald’s one day — via Wonkblog

Beware the email chain of fools

A software engineer rejected for a job by GoDaddy is suing the company for discrimination. Why does he believe that the company discriminated against him? According to USA Today, he read it in the email chain included in his otherwise vanilla rejection email.

The e-mail…, which appears to be sent from a group titled the “GoDaddy Recruiting Team,” begins with a tame form letter, explaining that Connolly had not been selected for a job as a mobile IOS developer. But the note he said he saw below it in the e-mail chain packed an unusual punch.

It read, “about keith he’s great for the job in skills but he looks worse for wear do we really want an obeese (sic) christian? is that what our new image requires of us.”

Like many before it, GoDaddy says that either it was hacked or the email was fabricated. Some computer forensics will sort out the truth of that defense. If it turns out that the email is legit, GoDaddy might want to rethink its “we are not offering any kind of settlement or an apology” position.

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun. 

And, before my employee-advocate readers get all over my case for defending one’s right to discriminate merely by keeping silent, yes, in an ideal world no one would think this way. But, my job is to defend the companies that have the misfortune of employing those that do. If GoDaddy is wrong, and one of its recruiters did send that email, then it should stand by its pronouncement that it is “proud to be an Equal Opportunity Employer” and settle, period.

Racist comments as protected concerted activity (really!)

Racism at work cannot be tolerated, right? So here’s a quick quiz. Assume you hear a white employee yelling the following at black co-workers:

• “Hey, did you bring enough KFC for everyone?” and
• “I smell fried chicken and watermelon!”

Do you: a) fire the offending employee; or b) brush it off? 

I’m going to lay pretty decent odds that most of you opted for choice “a.” Would you believe, though, that according to one NLRB judge, the answer depends on whether the racist employee is walking a picket line.

In Cooper Tire & Rubber Co. (6/5/15) [pdf], Administrative Law Judge Randazzo concluded that, while clearly racist, offensive, and inappropriate, the employer violated the NLRA when it fired the offending employee because he made the remarks in the context of a strike and there were no corresponding threats of violence:

Runion’s “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.… The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.

Thus, an employee is justified, under the NLRA, to be as racist as he wants to be as long as: 1) the comments are made in the context of otherwise protected, concerted activity, and b) the comments are not accompanied by violence or overt threats of violence.

Although the breadth of the NLRB’s current iteration’s interpretation of “protected concerted activity” should surprise no one, I am stunned that this ALJ has gone this far. 

1. No employee should be subjected to this type of abuse, picket line or no picket line, and it is shameful that this type of misconduct is condoned.
2. Employers should not be forced into a Hobson’s Choice between the NLRA and Title VII. Retaining the offender may save the employer from liability under the NLRA, but it won’t do the employer any favors if the victim pushes the issue under Title VII.

If nothing else, this case is a scary reminder of how far the NLRB and its judges will go to fine protected concerted activity. Employers, you are warned/

DOL set to publish guidance on independent-contractor status

Later this morning, I’ll board a flight for New York City to tape a segment for John Stossel’s Fox News show, to air Friday at 8 pm on Fox Business. We’ll be discussing the over-complexity of labor and employment laws, and their over-regulation of American businesses.

I’m certain one topic to be covered is our wage-and-hour laws. Serendipitously, according to Employment Law 360 [subscription required], Department of Labor Wage and Hour Division administrator David Weil recently announced that he will shortly publish an “administrator interpretation” to clarify who qualifies as an independent contractor.

The distinction between employee and contractor continues to beguile employers, and is ripe for problems under both wage-and-hour laws (among other legal entanglements). Individuals continue to file multi-million dollar class-action lawsuits claiming mis-classification as contractors cost them years of unpaid overtime. And, courts continue to take a hard line against companies that try to skirt their legal responsibilities via these mis-classifications.

Is it too much to hope for a reasonable interpretation from administrator Weil that permits bona fide contractors to remain classified as such? He speaks of a "holistic," as opposed to "mechanical" approach, which "requires a careful consideration of the economic realities and multiple aspects of the relationship." Expect a fuzzy standard with lots of gray area, which will continue to cause employers fits. Or, in other words, expect the status quo to continue, with employers who classify all but the clearest of workers as employees taking a huge wage-and-hour gamble.

Defining the three-headed associational disability claim

You likely know that the ADA protects employees from discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” But did you know that the ADA has three different theories to define this associational disability?

1. Expense (the cost of insuring the associated disabled person under the employer’s health plan);
2. Disability by association (a fear by the employer that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have); and 
3. Distraction (the employee is inattentive at work because of the disability of the associated person).

In Williams v. Union Underwear Co., (6th Cir. 6/5/15) [pdf], the court rejected the plaintiff’s attempt to use each of these theories to challenge his termination after his wife was diagnosed with Wagner’s Vascular Disease, which weakened her immune system. Other than the coincidental timing between the the wife’s diagnosis and the alleged beginning of Williams’s adverse treatment at work, the court could not find any other evidence of disability discrimination. Absent something in addition to timing, the court could not conclude that Williams had presented sufficient evidence to get his discrimination claim to a jury.

We, as employers, often treat employee’s with family medical issues with kid gloves. We not only worry about potential liability under the ADA, but also the FMLA. Yet, these employees are not bulletproof. In Williams, the plaintiff had suffered years of marginal performance, and the employer had enough. Without something in addition to the mere fact that his wife suffered from a rare disease, this court was unsympathetic to his claim, which should provide hope to employers that want to hold all employees accountable to reasonable performance standards.

WIRTW #369 (the “see me, hear me”) edition

It’s been awhile since I’ve updated everyone on when and where you can hear me speak, and I’ve got a bunch coming up in the next few weeks. So, here you go:

• Later today, I’m presenting on managing generational issues in the workplace at the Lakeland Community College 8th Annual Small Business Symposium.
• On June 10, at 2 pm, I’m presenting a webinar on how to create a safer, OSHA-compliant workplace, for HRdirect.
• On June 16, at noon, I’m presenting a webinar on OSHA compliance and workplace safety, for the West LegalEdcenter.
• On June 17, at 1 pm, I’m part of a panel webinar on the NLRB’s new “quickie” election rules, for Strafford.

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

Discrimination

• Five harassment “must haves” for employers — via Robin Shea’s Employment & Labor Insider
• Caitlyn Jenner’s Unveil Forces the Discussion of Transgender at Work — via Blogging4Jobs
• Employer’s search for “devious defecator” backfires after suspects sue under genetic privacy law — via ABA Journal
• Is It OK To Ask An Older Job Candidate If She Can Handle Supervising Young People? — via Evil Skippy at Work
• New DOL rules could blacklist fed contractors — via Business Management Daily
• Allergic At Work Is Not Allergic To Work — via The Labor Dish
• This employer had a “no pregnancy in the workplace” policy. No, really. It did. — via Eric Meyer’s The Employer Handbook Blog
• Employee Stressed Out By Manager Is Not Disabled And May Be Terminated — via Employment Law Worldview
• Now you know: rent two not one units for employee lodging — via Overlawyered

Social Media & Workplace Technology

• Should Companies Be Giving Fitbits To Employees? — via Workplace Diva
• How Wearable Technology Will Affect the Workplace — via Employment Intelligence
• More Bosses Expected To Track Their Staff Through Wearables In The Next 5 Years — via Forbes
• The Inbox – Orwell’s Big Brother Has An App For That — via Suits by Suits
• Aspects of Private Social Media Groups May Be Protectable Under Illinois Trade Secret Law — via Trading Secrets

HR & Employee Relations

• Flexibility and Job Satisfaction: Are Employers Listening? — via Next Blog
• June 1, 2015, Hazardous Communication Requirements Now In Effect — via OSHA Law Blog
• Is Your Employee’s Injury Reportable Under OSHA? — via The Emplawyerologist
• Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review

Wage & Hour

• How Fowl! Is An Employee’s Text and His Girlfriend’s Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast… — via Jeff Nowak’s FMLA Insights
• Can An Employee Assert State Law Wage Claims Based on Alleged Wrongful Tax Withholding? — via Minnesota Employer
• Department of Labor Seeks Information about Employees’ Use of Smartphones — via Wage & Hour Insights 
• Survey Shows Corporate Counsel Especially Fear Class Actions: With Good Reason! — via Wage & Hour - Development & Highlights
• General Release Obtained By Defendant in Non-FLSA State Court Case Did Not Waive FLSA Claims — via Overtime Law Blog

Labor Relations

• NLRB Issues Charge Against Ikea — via Labor Relations Today
• NLRB Ambush Election Rules Upheld by Texas Federal Court — via Hunton Employment & Labor Law Perspectives™
• Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections — via Management Memo
• Federal Court affirms that federal contractors have to inform workers of unionization rights — via Mike Haberman’s Omega HR Solutions

Transgender rights take center stage

It’s been a big week for the rights of transgender Americans.

• Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.

• The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.

• OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.

While we wait for the law the catch up to society’s opinion on LGBT rights (i.e., same-sex marriage rights and official statutory extension of Title VII’s protections to LGBT employees), our federal agencies are doing the best they can to modernize these laws for us. If you are still discriminating against LGBT employees, it’s time to stop. You are officially behind the times. It was not that long ago that LGBT rights were a joke. Now, we are on the verge of a breakthrough. Are you going to ride the wave, or hold onto the jam of the door that Caitlyn Jenner just kicked down kicking and screaming. The choice, for now, is yours, unless you run afoul of the EEOC, OSHA, or a court, each of which is doing is best to do what Congress has, thus far, refused.