WIRTW #381 (the “sensational inspirational celebrational” edition)

The Muppets present, 5 People You’ll Meet At Work.

 

Which one are you?

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

Discrimination

• Judge Titus Channels Inner Kenny Rogers in $1 Million EEOC Rebuke — via Employee Screen IQ
• Firing an employee for complaining on Facebook about discrimination = retaliation — via Eric Meyer's The Employer Handbook Blog
• Workplace religious accommodation, cont’d — via Walter Olson's Overlawyered
• Yes, employers may have to accommodate even “crazy” religious beliefs. — via Robin Shea's Employment & Labor Insider
• Be careful what you ask on pre-employment tests to avoid a multimillion dollar EEOC action — via Employer Law Report

Social Media & Workplace Technology

• Employee Shows Genitals to Co-Workers: Litigation Follows — via All in a Day’s Work
• Tool or distraction? Examining pros, cons of tech at work — via Technology for HR
• 7 ways to make internal comments work for you — via Ragan.com
• Future Friday: The world of work and the Internet of Things — via Next Blog

HR & Employee Relations

• Tom Brady Fallout—When Employees Win — via Employment Discrimination Report
• The Challenges Of Identifying Potential Workplace Violence — via NPR
• Eight Years Later: Three Big Changes in Employment Law — via Dan Schwartz's Connecticut Employment Law Blog
• 5 Ways To Make Yourself a Target Via Your Hiring Decisions — via The HR Capitalist, Kris Dunn
• Handbook Apocalypse! — via HR Professionals Magazine

Wage & Hour

• Is Amazon the Scapegoat in the Debate on Employee Leave Entitlements? What's the Lesson Here for Employers? — via Jeff Nowak's FMLA Insights
• Northeast Ohio Businesses Are Adjusting to the Changing Workplace, ERC Survey Finds — via ERC Insights Blog
• Is the Nine to Five Dying? — via Workplace Insights

Labor Relations

• NLRB Provides Newly-Certified Unions with Roadmap for Bringing Unfair Labor Practice Charges — via Matt Austin Labor Law
• DOL Pimping Unions — via Labor Relations Institute 
• Why women may be the new face of labor unions — via CBS News
• Get Ready for Even Quicker ‘Quickie’ Elections—NLRB Abandons Requirement for Signed Authorization Cards — via LE Blog

BMW settles EEOC background-check lawsuit for a cool $1.6 mil

Last month, a South Carolina federal judge denied BMW’s attempt to dismiss an EEOC lawsuit which alleged that the company’s criminal background checks for job applicants had a discriminatory disparate impact on African American (opinion here).

In the wake of that decision and looming trial date at the end of this month, BWM and the EEOC have agreed to settle their differences. In exchange for the EEOC’s dismissal of its lawsuit, BMW will pay $1.6 million, and offer employment to 56 of the claimants and up to an additional 90 other African-American applicants identified by the EEOC.

Interesting, Judy Greenwald, at Business Insurance, quotes both BMW and the EEOC, each of which holds a very different opinion on what this settlement has to say about an employer’s use of criminal background checks:

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.”

At the end of the day, the resolution of this case has very little to do with the legality of criminal background checks (and whether they are discriminatory) and everything about two litigants buying off off the risk of a trial on the issue. For now, the safest course of action for employers is to follow the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (at least until the federal courts tells us otherwise).

When religious liberty clashes with job requirements

By now, you’ve likely heard about the Muslim flight attendant who filed a charge of discrimination with the EEOC, claiming that her employer refused to accommodate her religion by requiring her serve alcohol on flights. There is much to say about this issue, but I do not think I can say it any better than Eugene Volokh did in the Washington Post. I highly recommend his thorough and thoughtful essay.

The practical question, however, is what to do when an employee requests such an accommodation. Consider:

• A Catholic pharmacist who refuses to sell birth control.
• A Muslim truck driver who refuses to deliver any pork.
• A Christian Scientist nurse who refuses a flu vaccine.
• An Orthodox Jew who refuses to sell any non-Kosher items.
• An IRS employee with religious objections to working on certain tax-exemption applications.

How you feel about each of these particular cases will depend, in large part, on your view of Religion, or certain religions. Yet, Title VII does not make any such distinctions. Instead, Title VII requires employers to exempt religious employees from generally applicable work rules as a reasonable accommodation, so long as the accommodation won’t impose on the employer an “undue hardship” (something more than a modest cost or burden). If the job can get done without much of a burden, then Title VII requires the employer to provide the accommodation.

Volokh makes six observation about this reasonable-accommodation rule, which are worth repeating:

1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task. Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

In other words, Title VII’s religious accommodation provision is the law of the land, and it does not permit value judgments based on the religion of the person making the request, no matter how different a religion may seem from ours. If the request is based on a sincerely held religious belief, is reasonable, and does not impose an undue hardship, an employer must provide it. Value judgments will result in litigation, in which the employer will likely be on the wrong side of the law. Treat each religion equally, consider each accommodation request on its merits, and err on the side of inclusion.

A White House forum for your whiny employees? Yup, this is a real thing, and you should pay attention.

Does your workplace have that employee who complains about everything? Is there that one person, who, no matter what you do, it’s never good enough? Lucky for you, the White House now has a forum for this pain-in-your-butt.

The White House has announced it’s “Summit on Worker Voice”. According to the White House:

On October 7, 2015, the White House and the Department of Labor will bring together workers, labor leaders, advocates, forward-leaning employers, Members of Congress, state and local officials and others to highlight the relationship between worker voice and a thriving middle class.

The White House Summit on Worker Voice will provide a historic opportunity to bring together a diverse group of leaders—including workers, employers, unions, organizers and other advocates and experts—to explore ways to ensure that middle class Americans are sharing in the benefits of the broad-based economic growth that they are helping to create. We want both seasoned and emerging leaders from across the country, who are taking action in their communities to lift up workers’ voices—to be active participants in this conversation.

The White House is looking for your employees to nominate workplace “voice leaders”, those who:

• Join with coworkers to discuss common workplace issues in a constructive and productive way.
• Support workers in seeking workplace policies that better respond to worker needs and concerns.
• Seek feedback—for example, through surveys—from employees to learn what really matters to them.
• Open a dialogue among workers, managers, and supervisors about what works best in your workplace.
• Create dialogue with coworkers and employer leadership about ways to expand voice in the workplace.
• Reach out to workers who have never had a voice in the workplace to let them know that they are not alone and broaden the conversation on the future of the workplace.

In other words, the White House is looking for employees to join together to discuss wages, hours, and other terms and condition of employment, a right that the National Labor Relations Act guarantees to your employees.

The Obama Administration, through the NLRB, has made it a whole lot easier for labor unions to form. The NLRB has implements it’s expedited, ambush election rules, and has held franchisors, staffing agencies, and contractors responsible as joint-employers for the bargaining responsibilities of their independent subsidiary entities. Now, the White House has gone a step further by opening a forum for employees to understand their rights to complain and grieve. This administration is bending over backwards to bring up the working and middle classes. And, if you are not implementing progressive wages and policies for your workers, the White House is sending a strong message that it’s more than okay for them to complain, or, worse, form a union to collectively bargain for those rights.

I’ve said before that there is a war brewing between the working classes and corporate America. One battle line is the minimum wage. Another is the labor movement, and the White House has clearly chosen it’s side.

WIRTW #380 (the “left of the dial” edition)

If you find yourself on the west side of Cleveland on the afternoon of September 12 or 13, stop by The Brothers Lounge to check out my kids’ latest rock ‘n’ roll adventure.

Norah will be performing in School of Rock’s “Left of the Dial” show, featuring the pre-Nirvana alt sounds of The Replacements, R.E.M., Dinosaur Jr., Echo and the Bunnymen, and others. To whet your musical appetite, here’s a 15-second clip of Norah crushing the lead vocals on Concrete Blonde’s “Bloodletting”.

A clip of Norah doing her thing, singing Concrete Blondes' "Bloodletting" at tonight's @schoolofrockcle Parking Lot Show. She gave herself a C+ tonight. I guess she's a tough critic. @schoolofrockusa

A video posted by Jon Hyman (@jonhyman) on Aug 17, 2015 at 4:24pm PDT

Also, stick around for my son Donovan’s musical debut, tickling the keys in the Rock 101 band with songs by The Who, Foo Fighters, and Linkin Park. If you stop, say hi, and mention the blog, I might even buy you a beer.

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

Discrimination

• Five Things An Employer Should Do After Receiving a Charge of Discrimination — via Minnesota Employer
• Under the ADA, can you fire an alcoholic who doesn’t request treatment? — via Eric Meyer’s The Employer Handbook Blog
• Ability to get along with others is an “essential function” under the ADA — via Mike Haberman’s Omega HR Solutions
• Commitment to diversity doesn’t prove bias — via Business Management Daily

Social Media & Workplace Technology

• Why Ballot Selfies Are A Terrible Idea For Workers — via Donna Ballman’s Screw You Guys, I’m Going Home
• Man Sends Naked Selfies to Prospective Employer — via Time
• Judge Expresses Frustration With Overbroad Discovery Requests for Social Media Evidence–Farley v. Callais — via Technology & Marketing Law Blog
• Labor Law Developments That Will Shake Technology, Media and Telecommunications Employers — via Technology Company Counselor
• The Ashley Madison Breach: Cybersecurity Nightmare, or Wake Up Call For Employers? — via TLNT
• Cyber boogeyman—internal or external threat? — via Technology for HR

HR & Employee Relations

• The Art of the Apology: Saying “Sorry” in the Workplace — via Dan Schwartz’s Connecticut Employment Law Blog
• The on-air shootings at WDBJ-TV: When bad things happen to good employees — via Robin Shea’s Employment & Labor Insider
• Should Employment Lawyers Advise Clients on Workplace Violence Issues? — via California Employment Law
• Four-Day Workweeks: A Fulcrum for Work/Life Balance — via Blogging4Jobs
• Four-day work weeks are growing in popularity and you’ll absolutely love them — via BGR
• How Do We Make Unlimited Time Off Work, Work? — via 1 Million for Work Flexibility
• One Size Fits All? The Case for Unified Employment Policies for Multi-State Employers — via Employment Matters Blog

Wage & Hour

• What the Browning-Ferris Decision May Forecast for Wage and Hour Law — via The Wage and Hour Litigation Blog
• Is the Contract Worker Golden Age Coming to an End? — via In House
• Employee or Independent Contractor? 3d Cir. FLSA Edition — via Phil Miles’s Lawffice Space
• Fight for $15: the strategist going to war to make McDonald’s pay — via The Guardian
• OSHA Means Business in Targeting the Health Care and Nursing Care Industries — via OSHA Law Update

Labor Relations

• If Employees, Uber Drivers Could Organize into a Union — via Matt Austin Labor Law
• NLRB: we’re coming after franchisors and subcontractors — via Overlawyered
• New NLRB Joint Employers Test – Why It Matters For OSHA — via OSHA Law Update
• What Did the NLRB Say in its Ruling on Joint Employment–and Why? — via The Emplawyerologist
• Five Practical Issues Browning-Ferris Creates for Employers — via Labor Relations Today
• NLRB’s “Joint Employer” Case Matters to Non-Union Employers, Too — via What's New in Employment Law?

Employment policies are more than words on paper; they are a lifestyle

Yahoo CEO Marissa Mayer is in the news. In one breath, she announced that she is expecting twins, but will not be availing herself of her company’s generous maternity leave policy. Yahoo offers all new parents eights weeks of paid time off, and new moms an additional eight weeks. Mayer says that she will take “limited” time off and work throughout her short leave of absence. After the birth of her son in 2012, Mayer returned to work in less than two weeks.

The New York Times quotes Joan Williams, director of the Center for WorkLife Law at the University of California, Hastings, who believes that a company’s actions are more important that its written policies: “The underlying work culture sends the message that if you’re really committed, you’re here all the time.” I could not agree more.

Policies are great tools for employee engagement, recruitment, and retention … if a company follows them. When a CEO spurns her company’s generous parental leave policy, she sends this message to all of her employees: “Our policies do not reflect our culture; my actions reflect our culture. When you have a child, do as I do, not as I say.” So much for generous and consequence-free time-off.

Companies need to be very careful not to send these mixed messages. It might be a leave-of-absence policy (as in Yahoo’s case), or it might be a manager that tells employees they must use vacation time for kids’ doctors appointment or school events, but comes and goes as he pleases without regard. These mixes messages are morale killers.

More importantly, these mixed messages teach employees that your written policies cannot be trusted. This message of distrust is one that you cannot afford to send, especially with policies that have real legal significance, like your anti-harassment policy. If your employee disregard your policies as corporate lip-service, why have them at all?

Is the government out get you? Find out on September 17 at our next breakfast briefing.

Join my partners and me on September 17 as we present Meyers Roman’s next Breakfast Briefing, Is the Government Out to Get You? Essential Human Relations Policies for Compliance.

Recent aggressive initiatives by the EEOC, the DOL, the NLRB, and OSHA and their impact on your business are creating concern and uncertainty in the workplace. Credit/criminal background checks, LGBT discrimination, OSHA investigations, employee misclassification, and social media handbook policies will all be discussed at MRFL’s next Breakfast Briefing focusing on this most timely topic.

Seth Briskin, Chair of our Labor & Employment Practice Group, Jon Hyman, our award-winning employment law blogger, and Steve Dlott, Chair of our Workers’ Compensation Practice Group, will provide an overview of the hot topics on the government’s watch list, critical information of which every Human Relations department and member of management needs to be aware.

WHEN:	September 17, 2015
TIME:	7:30 – 8:00 am Registration & Breakfast / 8:00-9:30 Seminar
WHERE:	Doubletree by Hilton (3663 Park East Drive, Beachwood, 44122)
COST:	Free

***2 Hours of HRCI credit will be given***

Seating is limited. To reserve you space, RSVP to Sara Cox—scox@meyersroman.com or 216-831-0042.