It shouldn’t be newsworthy when a court applies “common sense” to resolve a dispute

I’d like to think that after 8-plus years of blogging, I’ve banked some capital as one who offers a common-sense approach to the often crazy world of labor and employment law. It’s refreshing to read a judicial opinion that toes the same line.

Southern New England Telephone Co. v. NLRB (D.C. Cir. 7/10/15) is an appeal of an NLRB decision that held that an employer unlawfully disciplined employees for wearing union-created t-shirts that read“Inmate #” and “Prisoner of AT$T”. The court concluded that the employer’s interest in protecting its public image and managing customer relations trumped any arguable section 7 rights enjoyed by the employees in the shirts.

Common sense sometimes matters in resolving legal disputes. This case is a good example. AT&T Connecticut banned employees who interact with customers or work in public — including employees who enter customers’ homes — from wearing union shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. Seems reasonable. No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.” But the NLRB ruled in a 2-1 decision that AT&T committed an unfair labor practice by barring its employees from wearing those shirts. Section 7 of the National Labor Relations Act protects the right of employees to wear union apparel at work. But under this Court’s precedent and Board decisions, there is a “special circumstances” exception to that general rule: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image. Put simply, it was reasonable for AT&T to believe that the “Inmate/Prisoner” shirts may harm AT&T’s relationship with its customers or its public image. Therefore, AT&T lawfully prohibited its employees here from wearing the shirt.

Bravo D.C. Circuit. Here’s to more “common sense” approaches to labor and employment disputes.

Insubordination or protected conduct? 6th Circuit has the answer.

Is there a line that separates an employee’s insubordinate outburst from an expression of protected conduct? Yazdian v. ConMed Endoscopic Technologies, Inc. (6th Cir. 7/14/15) suggest that the answer may be “no”.

Reza Yazdian, a former territory manager for ConMed, believed that he was being singled out because of his national origin or religion. He chose, however, to express that belief to management in a less-than-professional manner, which included becoming combative during a disciplinary meeting.

The 6th Circuit concluded that it should be up to a jury to decide whether, despite Yazdian’s “combative” style, the company nevertheless terminated him because of his expression of protected conduct.

Yazdian cites as direct evidence of retaliation that Sweatt [his manager] specifically referenced Yazdian’s protected statements as examples of insubordination. When Sweatt provided ConMed with examples of Yazdian’s communication problems and “unwillingness to accept and apply constructive coaching,” Sweatt cited Yazdian’s hostile-work-environment and discrimination comments as examples. Sweatt described Yazdian’s claim that Sweatt was “creating a hostile working environment for [him],” as “unprofessional” and “totally unacceptable.” Sweatt cited the incident when Yazdian said to Sweatt, “I guess you don’t like my race either” as an example of Yazdian’s alleged “unwillingness to accept and apply constructive coaching.” And, crucially, Sweatt testified that he made the decision to fire Yazdian immediately after this phone call in which Yazdian said the following: (1) that Yazdian was going to file a lawsuit, (2) that Sweatt was creating a hostile work environment, and (3) that Yazdian would respond to the warning letter with charges.… [T]hese documents are direct evidence from which a reasonable jury could conclude that Sweatt believed Yazdian’s protected activity constituted insubordination, and therefore that Sweatt terminated Yazdian because of the protected statements that Yazdian had made.

Employee have a right to express protected conduct without reprisal, just as employers have the right to discipline or terminate insubordinate employees. When the expression of protected conduct swallows the alleged insubordination, you should expect most courts to do as the 6th Circuit did here, and side with the employee. Act accordingly, and be careful not to confuse protected expressions of opposition to alleged discriminatory employment practices with insubordination.

EEOC announces that Title VII treats all LGBT discrimination as unlawful sex discrimination

Last week, the EEOC released a historic decision on same-sex employment discrimination rights [pdf]. The EEOC confirmed that, in its opinion, Title VII expressly bars discrimination based on sexual orientation. When you couple this decision with an earlier 2012 decision on transgender workplace rights, the EEOC has done what Congress has thus far refused—to re-write Title VII to include express prohibitions against LGBT discrimination.

How does the EEOC reason that allegations of sexual-orientation discrimination necessarily state a claim of Title-VII-protected sex discrimination?

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Tide VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not…. [W]e conclude that sexual orientation is inherently a “sex-based ccmsideration” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complaintant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account….

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex….

Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.

What does this mean? ENDA or no ENDA, the EEOC will accept charges alleging LGBT discrimination under Title VII’s sex-discrimination prohibition. Indeed, the agency accepted more than 1,000 of these charges last year alone.

While neither nor courts have approved this broad stroke, now is as good a time as any to consider updating to your employment policies to reflect this paradigm shift.

WIRTW #375 (the “post-it” edition)

Have you heard the one about the intern fired after hiding an offensive message for his employer buried within the stack of post-it notes he was sent out to purchase? 

Opposing Views has all the info.

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

Discrimination

• Workplace Impact of Same-Sex Marriage Supreme Court Decision — via Blogging4Jobs
• Obergefell Decision Impact on Employers — via In-house ACCess
• Federal Court Says Employer Can Be Liable for Acts of Anonymous Harasser — via Employment Matters Blog
• Hospital Settles ADA Suit Alleging It Withdrew Job Offer After Learning Applicant Had MS — via Joe’s HR and Benefits Blog
• Blatant Ageism — via Mike Haberman’s Omega HR Solutions
• Timing of Self-ID Usually Emerges As Ugly Issue as Companies Mature… — via The HR Capitalist, Kris Dunn

Social Media & Workplace Technology

• Facebook is Not Your Friend at Work — via Employment Discrimination Report
• Report: Bloggers Trusted More Than All But Family And Friends — via Above the Law

HR & Employee Relations

• Mistakes Employers Make When Conducting Background Checks — via TLNT
• The danger of a 24-hour workday — via Business Management Daily
• Post-Employment Covenants: Is an Inducement to Smile An Inducement to Cancel? — via Employment Matters Blog
• Conflating abuse and incivility in the academic workplace — via Minding the Workplace
• OSHA Extends Enforcement Date for Confined Spaces in Construction Standard — via OSHA Law Blog
• An Injured Employee Tests Positive for Drugs… Now What? — via GMS Blog
• Keeping up with Background Screening — via ERC Insights Blog

Wage & Hour

• No Vacation for Employment Law: New “Interpretation” for Independent Contractors Issued by USDOL — via Dan Schwartz’s Connecticut Employment Law Blog
• Welcome to the 1099 Economy — via Compensation Cafe
• Fedex Drivers In Kansas Are Employees Not Independent Contractors — via Wage & Hour Defense Institute
• Evaluating The Impact Of USDOL’s Salary Proposal — via Wage and Hour Laws Blog
• Will the new #overtime rules be good or bad? Here’s how to be heard. — via Eric Meyer’s The Employer Handbook Blog
• Just Say No To Overtime — via Next Blog
• How Obergefell v. Hodges Impacts Employee Leave Laws — via The Emplawyerologist
• Need To Investigate Employee Misconduct While the Employee is on FMLA Leave? Follow This Employer’s Lead — via Jeff Nowak’s FMLA Insights

Labor Relations

• Court of Appeals Reverses Board Decision Allowing Employees to Wear “Inmate,” “Prisoner” Shirts in Customer Homes — via Labor Relations Today
• Union Is the New Black: Labor Organizing in Orange Is the New Black, And What It Means For You — via Workplace Fairness
• AT&T’s “Prison” Break: “Inmate” Employees Lose NLRB Appeal — via All in a Day’s Work
• Photo ID Needed to Leave Union, Not to Vote for Union — via Matt Austin Labor Law
• Federal Judge Disregards NLRB’s Murphy Oil Holding and Dismisses Employees’ Wage/Hour Claims — via Management Memo
• Unions hit the gas: New ‘ambush’ rules cause spike in elections — via Business Management Daily

Who is an employee? DOL has answers in guidance on independent-contractor status

I’ve written a lot in the past year about the distinction between employees and independent contractors under federal wage-and-hour laws (here, here, here, and here).

To me, here is what it all boils down to (cribbed from my post, The “duck” test for independent contractors:

The best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee…. I think you know an employee when you see one.

I’ve also cautioned that it is very difficult for an employer to justify the classification of a worker as an independent contractor, and that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors.

Make no mistake, this issue is of vital importance, because the mis-classification of an employee as a contractor carries with it serious implication under the FLSA, the employment discrimination laws, ERISA, tax laws, and any other laws that regulate the relationship between employer and employee.

Yesterday, the Department of Labor’s Wage and Hour Division Administrator David Weil issued a crucial Administrator’s Interpretation on this issue. Entitled, “The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors,” the guidance clarifies the uphill battle employers face on this issue and asserts that “most workers are employees.”

In sum, most workers are employees under the FLSA’s broad definitions. The very broad definition of employment under the FLSA as “to suffer or permit to work” and the Act’s intended expansive coverage for workers must be considered when applying the economic realities factors to determine whether a worker is an employee or an independent contractor. The factors should not be analyzed mechanically or in a vacuum, and no single factor, including control, should be over-emphasized. Instead, each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is its employee).

What should employers do in response to this guidance? At the end of the day, nothing different than that which I’ve been suggesting for the past few years—in all but the clearest of cases, assume that everyone you pay in exchange for services is an employee, and act accordingly. This issue is squarely on the the DOL’s radar, and employers who take unnecessary risks do so at their peril.

Recordkeeping policies: how long is too long?

Yesterday we examined a recordkeeping issue specific to potential adverse impact claims under Title VII. Today, I want to cast the net a little wider and look at how long you need to keep a variety of documents related to your employees.

A few important points:

1. This list is in no way meant to be exhaustive. It merely provides a snapshot of how long you need to keep some of your key documents.

2. Mileage will vary from state to state. For example, I suggest keeping certain records for 6 years because Ohio’s statute of limitation for statutory discrimination claims is six years. If your state has  shorter filing period, then some of your recordkeeping obligations may be shorter.

3. If you don’t have a document-retention policy, you should. If you don’t have a guideline for how long to keep certain documents, then your employees have no idea when to destroy. They may keep documents too long, or may destroy them too soon, each of which has potentially disastrous implications in litigation. If you hold too long, then you may have to produce documents that you should no longer have, and if you destroy too soon you may open yourself up to liability for spoliation (destruction) of evidence or other sanctions.

4. Check with employment counsel on numbers 1, 2, and 3. It’s bad idea to try to manage these issues without some legal input.

Without further delay, here’s the list:

Resumés, applications, and related employment materials, including interview records and notes	6 years from date of hiring decision for non-hires and from date of termination for employees
Background checks, drug test results, driving records, company employment verifications, letters of reference and related documents	6 years from date of hiring decision for non-hires and from date of termination for employees
I-9 Forms	The later of 3 years from date of hire or 1 year after termination of employment
Written contracts	8 years after expiration
Handbooks, and other policies or procedures	6 years after expiration
Collective bargaining agreements	6 years after expiration
Compensation and time records	3 years after termination
FMLA and USERRA and related leave records	3 years after termination
Performance appraisal and disciplinary action records	6 years after termination
Benefit records	6 years after filing date
OSHA and other employee safety records	5 years after termination
Workers’ compensation records	10 years after the later of the injury or illness or the close of the claim
EEO-1s	2 years after filing date
Affirmative Action Plans	2 years after close of AAP year
OSHA 300/300A	5 years after posting
ERISA 5500	6 years after filing

Are you up on your federal recordkeeping requirements?

The EEOC announced that is has sued a nationwide provider of janitorial and facilities management services for an alleged failure to maintain records or other information that will disclose the impact of its employee selection procedures on equal employment opportunities.

What is the EEOC talking about? According to certain federal regulations, an employer must maintain, and have available for inspection, records or other information that disclose the impact which the employer's tests and other selection procedures have upon sex, African-Americans, Native Americans, Asians, Hispanics, and Caucasians.

According to EEOC Regional Attorney Debra Lawrence, "Federal record-keeping requirements ensure that certain employers make and keep records that disclose the impact of their selection procedures. EEOC's enforcement of the record-keeping requirements is important to the agency's commitment to eliminating discriminatory barriers in the workplace."

So, if you use selection criteria or tests for hiring (criminal records, credit records, etc.), you must maintain those records for all applicants.

Tomorrow, I'll share some thoughts on the other records you should be keeping relating to your employees, and for how long you should be keeping them.