Don’t forget to check social networks during your workplace investigations

Cleveland.com reports that a former bi-racial employee has sued a Steak ‘n Shake restaurant for race and disability discrimination:

A discrimination lawsuit contends that two employees of a Steak ‘n Shake restaurant in Aurora used racial slurs, including n-----, to refer to a black co-worker.

Brandon Waters’ suit also accuses the Indiana-based restaurant chain of failing to provide a harassment-free work environment, resulting in his firing in 2011 for being too afraid to show up for work….

Waters is biracial, and he was born with a viral infection that affects his motor and speech skills. His lawsuit names the restaurant chain, Timothy Schoeffler, a former co-worker, and Nick Karl, a former manager at the restaurant.

According to the complaint, Waters was called racial slurs at the store and on Twitter, and Karl and Schoeffler referred to him by the nickname “Radio,” a reference to the 2003 film in which Cuba Gooding Jr. plays a mentally disabled student. Karl is also accused of creating a “Radio” name tag that Waters refused to wear. 

Schoeffler also dumped a milkshake on Waters’ head in front of Karl, who laughed, the lawsuit states. The two then discussed the incident on Twitter, the lawsuit says.

Screen shots of a collection of tweets between the two men is attached to the lawsuit, and includes references to “Radio” and messages such as “the white way is the right way.”

Screen shots? Here you go:

 

Two thoughts to leave you with:

1. Yes, employees are still ignorant enough about social media to engage in very public online conversation about the (alleged) systematic harassment of a co-worker. If you are not checking Twitter, Instagram, Facebook, and other social networks as part of your internal workplace investigations, there is a good chance you are missing key evidence, and maybe even the smoking gun.

2. The restaurant fired the accused employees in response to the plaintiff’s complaint to management about the alleged harassment. The plaintiff, however, just stopped going to work after their termination, claiming that he felt “unsafe as other employees and managers either tolerated or participated in the harassment.” If this employer had an anti-harassment policy, trained all of its employees about the policy, conducted a prompt investigation after the internal complaint, and took prompt remedial action after the complaint, I think that this plaintiff is going to have a difficult time establishing his claim against the employer.

NLRB re-affirms that workplace policies cannot restrict non-work-time solicitations

Have you recently reviewed your company’s Electronic Communications Policy, and other policies that regulate how employees use your email and other computer systems? If not, you might want to consider putting that to-do on your short list.

Late last year, in Purple Communications, the NLRB held that employers must permit employees to use corporate email systems during non-working time to communicate about union issues. Late last week, in UPMC [pdf] reaffirmed this standard.

At issue in UPMC was the following no-solicitation policy:

No staff member may distribute any form of literature that is not related to UPMC business or staff duties at any time in any work, patient care, or treatment areas. Additionally, staff members may not use UPMC electronic messaging systems to engage in solicitation….

All situations of unauthorized solicitation or distribution must be immediately reported to a supervisor or department director and the Human Resources Department and may subject the staff member to corrective action up to and including discharge.

The employer argued that its nature as a hospital necessitated a special-circumstances exception to Purple Communications, entitling it to limit employees’ use of its email systems across the board. The NLRB, however, disagreed:

We do not doubt that using a hospital’s email system during working time may be distracting, and that when nurses and others responsible for patient care are distracted, errors may result that may affect patient safety. But those concerns, however legitimate, do not justify a policy that prohibits the use of UPMC electronic messaging systems for only one type of communication, namely solicitation…. It seems to us that the asserted concerns would prompt the Respondents either to deny employees access to UPMC’s email system altogether, which is lawful under Purple Communications, or to fashion a policy that applies solely to working time, also permitted under Purple Communications.

In other words, if you permit your employees to access and use your email and other electronic systems, then you cannot limit that access to work purposes only during non-work-time; employees must be permitted to engage in solicitations, which necessarily includes union-related solicitations. Anything more restrictive will almost certainly violate employees’ section 7 rights.

Hence, this is why I suggest, sooner rather than later, that you review, with your labor and employment counsel, your handbook and other workplace policies for compliance with the NLRB’s Purple Communications rule.

WIRTW #379 (the “that’s showbiz” edition)

I was supposed to be in New York City today being interviewing for tonight’s episode of 20/20. I would have discussed the workplace implications of Wednesday’s murder of two Virginia journalists by their former co-worker. While I was on my way to the airport yesterday, I received a phone call letting me know that direction of the show changed, and that my segment was bumped. Thank you to the nice people at ABC News who reached out to me. I’ll catch you next time.

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

Discrimination

• Employers: The Threat of Age Discrimination Claims is Real! — via The Emplawyerologist
• When Labeling An Employee “Male” May Not Be Good Enough Anymore — via Dan Schwartz’s Connecticut Employment Law Blog
• Another Federal Circuit Court Rejects Telecommuting as a Reasonable Accommodation — via Minnesota Employer
• ADA accommodations for deaf employees in safety-sensitive positions — via Eric Meyer’s The Employer Handbook Blog
• Can Employees Trust Human Resources? Maybe That’s Not the Right Question? Timing of Reasonable Accommodation Request and Causation under the ADA and the Rehabilitation Act Are Not the Same — via Understanding the Americans with Disabilities Act
• Reversal of Jury Verdict in Religious Discrimination Lawsuit – Divine Intervention or Judicial Mistake? — via Michigan Employment Law Advisor

Social Media & Workplace Technology

• Why the workplace of 2016 could echo Orwell’s 1984 — via The Guardian
• Why You Should Not Check to See if Employees are on Ashley Madison — via Heather Bussing, writing at HR Examiner with John Sumser
• Workplace etiquette after Ashley Madison: 8 tips for dealing with embarrassed colleagues — via Quartz
• Social Media E-Discovery: Are Your Facebook Posts Discoverable in Civil Litigation? — via Socially Aware Blog

HR & Employee Relations

• How to Limit the Damage When You Fire an Employee — via Evil HR Lady, Suzanne Lucas
• Can employees trust Human Resources? — via Robin Shea’s Employment & Labor Insider
• Putting the Human in Human Resources — via Blogging4Jobs
• Game of War executive arrested for allegedly stealing trade secrets — via The Verge
• Why You Should Be a Reluctant Workaholic: The Importance of Taking Vacation — via The Sociable Lawyer Blog
• The Workplace Culture That Flying Nannies Won’t Fix — via The New York Times
• “Ban-the-box” movement making its way across the country — via HR Hero Line

Wage & Hour

• Are Yelp Reviewers “Employees”? — via Workplace Prof Blog
• What Happens When I’m Forced to Go Non-Exempt? — via Evil HR Lady, Suzanne Lucas
• Another FLSA case gets to trial based only on uncorroborated testimony — via Employer Law Report
• DC Circuit Reinstates DOL Rule Applying FLSA’s Minimum Wage and Overtime Provisions to Home Care Workers — via Wyatt Employment Law Report
• Requiring an Employee to Return from FMLA Leave "Without Restrictions" or "Fully Healed" Is Playing with Fire — via Jeff Nowak’s FMLA Insights
• Did Obergefell settle the same-sex marriage issue? — via SCOTUSblog
• OSHA’s New Option for Resolving Whistleblower Complaints: What Employers Need to Know — via OSHA Law Update

Labor Relations

• NLRB case asks who's really the boss of subcontractors’ workers — via Los Angeles Times
• Board Finds That An Employee’s Brief Suspension Violated Labor Law — via Labor Relations Today
• The Face of Unions is Becoming Younger and More Educated — via Matt Austin Labor Law

BREAKING: The shoe has fallen on NLRB’s joint employer decision

While the outcome isn’t necessarily a surprise, the decision nonetheless will be a shock to business’ systems. In a landmark 3-2 decision—Browning-Ferris Industries of California [pdf]—the NLRB has re-written its joint-employer standard.

The common-law definition of an employment relationship establishes the outer limits of a permissible joint-employer standard under the Act. But the Board’s current joint-employer standard is significantly narrower than the common law would permit. The result is that employees covered by the Act may be deprived of their statutory right to bargain effectively over wages, hours, and working conditions, solely because they work pursuant to an arrangement involving two or more employing firms, rather than one. Such an outcome seems clearly at odds with the policies of the Act. …

The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them. …

We will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry. … Nor will we require that, to be relevant to the joint-employer inquiry, a statutory employer’s control must be exercised directly and immediately. If otherwise sufficient, control exercised indirectly—such as through an intermediary—may establish joint-employer status. 

The Board justifies this expansion of the joint-employer standard by stating that it is good for business and for the hiring of employees:

As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded. The procurement of employees through staffing and subcontracting arrangements, or contingent employment, has increased steadily…

NLRB, you are not being honest with us. There is nothing good for businesses about this decision. If staffing agencies and franchisors are now equal under the National Labor Relations Act with their customers and franchisees, then we will see the end of staffing agencies and franchises as viable business models. Moreover, do not think for a second that this expansion of joint-employer liability will stop at the NLRB. The Department of Labor recently announced that it is exploring a similar expansion of liability for OSHA violations. And the EEOC is similarly exploring the issue for discrimination liability. I think that Browning-Ferris is a jumping-off point, not an end-point, on this key issue. Stay tuned.

John Oliver takes on LGBT discrimination, and gets it 100% correct

HBO’s last week with John Oliver is fast becoming my favorite “news” show on television. This past week, John took on the issue of LGBT discrimination. In a blistering 14:45, he summed up what I’ve been preaching for years—the time is long past due that it becomes the law of this nation that LGBT discrimination in employment and elsewhere is illegal and cannot be tolerated in a civilized and free society.

Enjoy.

OSHA’s new burden of proof is a big burden for employers

Today, I’m going to talk about burdens of proof, a topic that might seem dry, but is vitally important to employers.

Last month I provided some insight into the 22 different federal statutes that protect whistleblowing employees from retaliation. The Occupational Safety and Health Administration administers the enforcement of each of these statutes’ anti-retaliation provisions. It’s now a whole lot easier for OSHA to enforce these laws against companies alleged of retaliation.

Earlier this year, OSHA published a memorandum entitled, Clarification of the Investigative Standard for OSHA Whistleblower Investigations. This “clarification” is actually a loosening of OSHA’s investigatory standard. Now, all OSHA needs to pursue a retaliation claim against an employer is “reasonable cause to believe that a violation occurred.”

What does “reasonable cause” mean? It means that all OSHA needs to take a whistleblower claim to hearing is a “belief that a reasonable judge could rule in favor of the complainant … that a violation occurred.” This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence.

If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50-percent-plus showing, maybe as little as enough to merely nudge the scales in the direction of that halfway point.

As OSHA’s summarizes:

Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred. Rather, when OSHA believes, after considering all of the evidence gathered during the investigation, that the complainant could succeed in proving a violation, it is appropriate to issue a merit finding under the statutes that provide for litigation before an ALJ….

Needless to say, this loosening of the proof standard has the potential to be significant. Time will tell if if it will increase the number of whistleblower complaints filed by employees. I am confident, however, that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation has increased significantly.

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.