When one act is enough for harassment

To be actionable, the offensiveness of alleged harassment needs to be either pervasive (that is, happening often) or severe (that is, shocking to the system even if observed only once). In Macias v. Southwest Cheese Co. (10th Cir. 8/24/15) [pdf], a federal appellate discussed the difference in the context of a male employee who exposed himself to a female co-worker.

As to the second element concerning the severity or pervasiveness of the conduct, the district court concluded that the … conduct … was neither severe nor pervasive enough because it transpired over twenty months…. His conduct was more than a mere offensive utterance; it was not only physically threatening and humiliating—if true, it was also criminal, see N.M. Stat. Ann. § 30-9-14. The environment was objectively hostile, and Ms. Macias subjectively perceived it to be so, fearing that Mr. Stewart might expose himself to her again or assault her in some way.

Thus, suffice it to say that if an employee exposes himself at work, you have a sexual harassment problem on your hands.

The bigger question from this case, however, isn’t whether actionable sexual harassment occurred, but why this employee kept his job after HR learned about the exposure. Employers, here is your take-away from today’s post. When an employee pulls out his little friend at work, do not hesitate to pull the termination trigger (once you investigate and reasonably confirm that that incident happened). I promise you that the risk from that termination will be far less than the risk from one or more of his co-workers suing you for sexual harassment.

“The devil made me do it” is not a defense to insidious wage-and-hour violations

Late last week, the Department of Labor announced that it had filed a wage-and-hour lawsuit against Akron, Ohio, televangelist Ernest Angley and the for-profit buffet his church operates. The allegations are, to put it mildly, ugly. From Ohio.com:

• Defendants improperly treated certain workers as “volunteers” and paid them no wages. These “volunteers” worked in the buffet restaurant cooking, cleaning, waiting on tables, stocking and maintaining the buffet line, and as cashiers.

• Two dining-room attendants, aged 14 and 15, worked in violation of the restricted hours for minors.

• Defendants paid four managers weekly salaries that were too low to meet the federal minimum wage, currently $7.25 per hour, and did not pay overtime after 40 hours. The employer incorrectly categorized these managers as exempt from minimum wage and overtime requirements of the Fair Labor Standards Act, though they did not meet the criteria. The managers are due a total of $8,684 in back wages for overtime violations.

• Two hundred thirty-nine employees, including four of the managers, did not earn the minimum wage of $7.25 per hour and are due a total of $207,975 in back wages.

Most insidiously, according to an exposé done by the Akron Beacon Journal last October (which served as the genesis for the DOL’s investigation and its the eventual lawsuit), Angley (allegedly) willingly violated the FLSA through the use of unpaid volunteers even after a DOL audit told him otherwise, and, most sinfully of all, required the destruction of time records in an attempt to cover his tracks:

A window into Angley’s labor practices opened in early 1999 after a volunteer worker at the Cathedral Buffet was stabbed to death by another volunteer worker. 

Because the use of volunteers at a for-profit restaurant is prohibited, the U.S. Labor Department investigated. The church agreed that spring to stop the practice.
But the practice has resumed. 

Angelia Oborne, 35, has deep, firsthand knowledge of the finances at the buffet, where she was employed for 20 years. She started by busing tables at the restaurant and worked her way up to management. 

“Before we were audited,” she said, “I was instructed to destroy all the timecards and payroll reports for … other years before that.” 

Oborne also echoed what others have said about time-clock fudging. 

“They told every person … that they were required to clock out at 5 p.m. whether their work was done or not. And if their work was not done, they were to go back to their desk.”

The FLSA permits non-profit organizations to use volunteers to perform work related to the non-profit. If, however, the “volunteer” works in a part of the enterprise that serves a commercial business and serves the public (such as a restaurant or a retail store), those workers are employees, not volunteers, and are the employer is bound the FLSA to pay them minimum wage and overtime.

Seems to me that Angley’s best defense is to cut his losses, pay the $200,000+ in back wages, and start operating his buffet like the for-profit restaurant that it is. I’m very curious to see if common sense or hubris prevails.

And now, this…

WIRTW #378 (the “top chef” edition)

I’ve never used this space to write a restaurant review, until today. While in Germany, my wife and I dined at Zur Tränke, a quaint little restaurant attached to a local riding school. Our friends arranged a special five-course wine tasting dinner, which started with a cold tomato soup with a tomato and olive salad, followed by chicken-liver paté with blackberry jam, a spinach ravioli with shrimp, lamb consummé, grilled lamb with roasted potatoes, and ending with assorted cheeses for dessert, each paired with a different wine. It was one of the best meals I’ve ever eaten.

If you ever find yourself anywhere near Eggenstein-Leopoldshafen, you need to eat at Zur Tränke. You will not be disappointed.

A photo posted by Jon Hyman (@jonhyman) on Aug 14, 2015 at 2:13am PDT

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

Discrimination

• 5 ways employers can spend a lot less time in court — via Robin Shea’s Employment & Labor Insider
• Paid Suspension “Typically” not an “Adverse Employment Action” Under Title VII — via Phil Miles’s Lawffice Space
• What are the business costs of ignoring racial and gender diversity? — via ABA Journal Daily News
• UPS Manager’s Disability Does Not Excuse Perceived Racist Comment — via The Employment Brief
• Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury — via Workplace Class Action Litigation
• Did you know that National Origin discrimination covers American born workers? — via Mike Haberman’s Omega HR Solutions
• Failure to Promote, Failure to Accommodate, Retaliation, and Breach of Confidentiality As ADA Causes of Action — via Understanding the Americans with Disabilities Act (ADA)
• Accommodating Religion: Ignorance Is Not Bliss — via The Labor Dish

Social Media & Workplace Technology

• 2015 ABA Tech Survey shows 60% of attorneys use an iPhone, 40% use an iPad — via iPhone J.D.
• The Internet of Things Has No Clothes – A Defcon 23 Summary — via Augmented Legality
• Risky business: when your subordinate becomes your Facebook ‘friend’ — via Technology for HR
• LinkedIn's Lookup app finds co-workers with the right skills — via Engadget Mobile
• “Yelping” Does Not Entitle You To Minimum Wage — via Wage and Hour Law Update

HR & Employee Relations

• Working at Amazon is Hell. So What? — via Evil HR Lady, Suzanne Lucas
• Unlimited Vacation & Parental Leave – It’s Good to Be In the 1% — via Blogging4Jobs
• Respecting the Rhythm of Work and Family — via Fathers, Work and Family
• Disregarding the Traditional Workweek — via Attorney at Work
• Bathroom Monitor: The Newest HR Pro Title — via The Tim Sackett Project
• Employees Can’t Be Summed Up by a Personality Test — via Harvard Business Review
• 5 Ways The Workplace Needs To Change To Get The Most Out Of Generation Z — via Fast Company

Wage & Hour

• The Nightmare of the Labor Department’s New Overtime Rule — via Evil HR Lady, Suzanne Lucas
• How do you make a wage-and-hour lawsuit go away? — via Eric Meyer’s The Employer Handbook Blog
• When Cancer Strikes: What Happens AFTER You Run Out of Paid Time Off — via Dan Schwartz’s Connecticut Employment Law Blog
• Struggling to accommodate coworkers’ medical leave in a small office — via Ask a Manager
• A Cruise Aboard the Love Boat is Not Protected by the FMLA, Even When the Doc Says It’s a Good Idea — via Jeff Nowak’s FMLA Insights

Labor Relations

• Here comes a NLRB move to unionize temps — via Walter Olson’s Overlawyered
• NLRB Denies McDonald’s Appeal of Motion to Dismiss Joint Employer Claims — via Management Memo
• Eighth Circuit Reverses NLRB Order Requiring Reinstatement of Employee Who Threatened a Co-Worker — via Minnesota Employer

Seize the opportunity to offer accommodations for medical treatments

A Mississippi home healthcare provider has agreed to a $100,000 settlement with the EEOC for a disability-discrimination lawsuit. The EEOC’s press release offers the key facts of the case:

EEOC brought suit on behalf of Kristy Sones, a former Mississippi HomeCare employee, who suffered an epileptic seizure while working at the facility. Returning to work following her seizure, Sones requested an accommodation to help her perform certain job-related computer tasks--tasks she was having difficulty completing because of the temporary side effects of her seizure medication.  The lawsuit alleges that Mississippi HomeCare ignored Sones’ request, failed to engage in an interactive process to discuss reasonable accommodations, and provided no accommodation. Mississippi HomeCare then terminated Sones less than a month after her request for an accommodation.

According to EEOC Birmingham District Director, “We hope this resolution will be a lesson to companies of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.” This duty to consider reasonable accommodations does not just include an employee’s medical condition, but also any medications an employee is taking to treat that medical condition. Omitting this consideration can have expensive consequences, as this case illustrates.

Another viewpoint on overtime for undocumented work time

In Garcia v. SAR Food of Ohio, an Ohio federal court rejected an employer’s attempt to dismiss an off-the-clock wage-and-hour claim, because, even though the plaintiff had not reported un-clocked as “working time,” a fact issue existed over whether the employer should have known that the employee was nevertheless performing such work without compensation.

Now, an Illinois federal court has considered nearly the identical issue, a reached the opposite result. In Roberts v. Advocate Health Care, a nurse alleged that she had worked between 8 and 12 hours of unpaid overtime each week. Her employer, however, argued that she was responsible for submitting her own timesheets and that it paid her consistent with her own written representations as to how many hours she worked each week.

The federal court rejected the employee’s counter-argument that “she was performing uncompensated overtime work,” and that her supervisor, Magurany, “knew or should have known about that work,” and dismissed this off-the-clock claim.

Magurany supervised between 45 to 50 employees in multiple departments. Roberts contends that when Magurany reviewed employee time cards, she should have noticed that Roberts' time cards did not reflect time spent at the alleged post-shift meetings. This constructive knowledge argument is speculative. It rests on three assumptions: (1) Magurany knew that Roberts was off the clock during the purported post-shift meetings; (2) Magurany knew that Roberts routinely failed to correct her time cards to reflect time spent at those meetings; and (3) when Magurany reviewed Roberts' time cards at a later date, she was able to detect that Roberts' time cards shorted Roberts for time spent at the meetings…. The fact that something is theoretically possible is not enough to create a triable issue of fact….

This is especially true given that Advocate had multiple mechanisms by which employees could correct their time. Roberts used these mechanisms on multiple other occasions….

Moreover, Roberts never provided actual notice by complaining to Magurany or any other supervisor about any of the unpaid overtime she now claims that she worked….

How does an employer reconcile Garcia and Roberts within its own pay practices? The short answer is that you don’t. Different courts often reach different results on similar issues, and, until higher courts pass judgment, the issue remains unsettled. For now, if you are in Northern Ohio, Garcia is your controlling precedent and you need to pay if you know, or should know, of the undocumented work time. If you want to take a more aggressive stance and challenge the issue, you have Roberts on which to hang your hat. That challenge, however, will raise the issue of whether you are committing a willful violation of the FLSA (with its longer statute of limitations and liquidated damages) by intentionally withholding pay from an employee you know has performed work. The safer course of action is the Garcia holding, which is the path down which I would guide you.

NLRB, college athletes, and the case that doesn’t really matter

Yesterday, the NLRB closed its book on the attempt of Northwestern University’s scholarship football players to unionize, not with a thud but with a whimper. The NLRB unanimously passed on the issue of whether college athletes are “employees”, and instead held that the NLRB lacked jurisdiction to consider the petition because the inherent nature of college sports is antithetical to the purposes served by the NLRA:

[W]e have determined that, even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction. Our decision is primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case.

The Board has never asserted jurisdiction, or even been asked to assert jurisdiction, in a case involving scholarship football players or similarly situated individuals, and … we decline to do so in this case. Processing a petition for the scholarship players at this single institution under the circumstances presented here would not promote stability in labor relations. Moreover, recent changes, as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future. For these reasons…, even if the scholarship players were statutory employees (which the Board does not here decide), we have concluded that it will not effectuate the policies of the Act to assert jurisdiction in this case.

What does this case mean? Frankly, very little. It’s a huge story because the implications of an opposite ruling would have irreparably changed the nature of college sports. As it stands, the case maintains the status quo, without ruling on the key issue of private-college-athletes-as-employees. Thus, while this opinion has garnered tons of news coverage (Wall Street Journal, New York Times, ESPN), at the end of the day, its just not that big of a deal.

What’s next on the issue of “employee” at the NLRB? The McDonald’s case, which almost certainly will decide whether a franchisor is a (joint-)employer of its franchisee’s employee, and will likely be (one of the) biggest cases of 2015.

You can download a pdf of the Northwestern University opinion here.

12 things I learned on my summer vacation

I spent the last two weeks in Europe. Germany to be exact, and to be more precise, Eggenstein-Leopoldshafen, with jaunts to Paris and Munich. It was a dream holiday, spent visiting, and touring with, our German daughter (an exchange student who lived with us two years ago) and her family. With 16 days of vacation behind me, here is what I learned:

1. I have very resilient kids. We walked, a lot. According to my iPhone health app, we walked between 8 and 12 miles per day. And my kiddos (ages 7 and 9) went along for the ride, with very few complaints, all things considered.

A photo posted by Jon Hyman (@jonhyman) on Aug 12, 2015 at 10:56am PDT

2. I know the answer to the question, “How many steps does that church tower have?” We climbed Sacré Coeur in Paris, Notre Dame in Strasbourg, St. Peter in Munich, and the Perlach Tower in Augsburg, and each has 300 steps (give or take). A few pointers. Yes, the views are worth it, always. And, if the bell tower happens to be a working bell tower, the bells are loud (especially, as was the case in Augsburg, when you summit at high noon).

3. Europe is basically one big pastry shop. If it wasn’t for the fact that Europeans walk everywhere (see #1), they’d all weigh 400 pounds from the immense amount of carbs they consume in pastry form. Then again, when those pastries are les macarons at Ladurée on the Champs-Élysées, you don’t really care.

A photo posted by Jon Hyman (@jonhyman) on Aug 7, 2015 at 7:24am PDT

4. Every restaurant should be equipped with a playground. And I’m not talking about a McDonald’s playland, but a bona fide playground that will genuinely entertain the kids while the adults enjoy their meals. Such was the case at the biergarten we visited outside of Munich with our hosts’ family and friends. Also, the world would be a better place if we more often embraced the notion that the language of play is universal.

5. The Eiffel Tower is always beautiful. Yes, it’s touristy. And, yes, it’s magnificent, at day or at night, from the top, from the bottom, or from a distance.

A photo posted by Jon Hyman (@jonhyman) on Aug 5, 2015 at 11:22am PDT

6. The best part of vacations often are unplanned. Whether it’s an expected drive through an Austrian Alps lake, an impromptu classical music dance party in a Munich garden, or a photo-bomb that wasn’t meant to be videoed in slo-mo.

A video posted by Jon Hyman (@jonhyman) on Aug 10, 2015 at 2:02pm PDT

7. German beer is awesome. In this case, bigger really is better.

8. German BBQ is the real deal. One half of our hosts, Michael, loves to cook American barbecue. And he can slow-cook some damn fine fall-off-the-bone ribs. I had to travel all the way to Germany for some of the best barbecue I’ve ever had. Yes, we also ate schnitzel and sausages, and, yes, it was awesome too.

9. Europe is easy to navigate, even if you only speak English. Yet, by the end of our fortnight I had gained enough confidence to navigate shops and the grocery store on my own, more or less in German. Also, we found the Parisians to be extremely patient with our French and English, as long as you started with a “bonjour” and showed an effort. My daughter, on the other hand, was more than happy to show off her 4 years of French by ordering food in restaurants, asking for help, and even making confession at Notre Dame, all en français. Quick tip: If you’re driving in Germany, “Ausfahrt” means “exit”; it’s not the most popular city name in Germany.

10. Fast is fast, no matter where you are. I love the no-speed-limit German autobahn, and the 190 mph TGV we took to Paris. Very cool to travel that fast on land.

11. Gracious hosts and good friends make everything better. I was so worried that our European vacation could not live up to the hype I had built up in my brain. I’m happy to report it blew the roof off the expectations. I was sad to leave Germany after an awesome two weeks, and could have stayed much longer. Thanks Michael Jung, Karin Jung, Alexa Jung, and, of course, our German daughter, Zarah Jung, for being amazing hosts and tour guides. While all of the experiences, sights, touring, and eating were great, the best part of the trip was getting to know the rest of the Jungs better. Thanks again for everything. We will miss you, and we can’t wait for our next adventure.

12. Employees need vacations. I’ve always been a strong believer in vacations. The past two weeks convinced me of their need for all employees. I will return to work recharged and rejuvenated. You should encourage your employees to take vacations and do the same. How do you accomplish this goal?

• Make a meaningful vacation benefit available for all employees.
• Do not permit employees to roll-over unused vacation days. This benefit, should be use-it-or-lose-it. Otherwise, you risk employees not using it on an annual basis.
• Allow employees to disconnect while on vacation. A vacation will not achieve its therapeutic goal if employees are required to check in via email or participate in conference calls. If your workplace is not sufficiently cross trained, and your employees are not team players, to permit this level of disconnection, then you have bigger problems you need to address.
• Set an example from the top. How many of your executives and managers say, “I haven’t taken a real vacation in two years.”? If this is the case, you need to take a step back, relax, and book some bona fide time off, ASAP.