WIRTW #272 (the “sensual harassment” edition)

We’ve all heard of sexual harassment. But, have you heard of “sensual harassment?”

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

Discrimination

• No, I am not from the Midwest. Sex Discrimination Lives On — from Molly DiBianca’s Delaware Employment Law Blog
• Third Circuit says VIPs cannot sue for Title VII discrimination — from Eric Meyer’s The Employer Handbook Blog
• Initial Discovery Protocols in Discrimination Cases: A Connecticut Update — from Dan Schwartz’s Connecticut Employment Law Blog
• First Circuit Rejects Age Discrimination Claim Based on Isolated Comment — from Employer’s Law Blog
• Sexual Harassment Complaints By Males On The Rise: 2012 EEOC Enforcement and Litigation Statistics — from Outten & Golden Employment Law Blog
• Ostracism and petty mistreatments may collectively rise to the level of hostile work environment — from Employment Law Matters
• Bills Would Extend Workplace Protections to LGBT Employees — from Washington D.C. Employment Law Update
• What It Takes To Win An Age Discrimination Suit — from Forbes

Social Media & Workplace Technology

• New Jersey Federal Court Issues Sanctions For Deletion of Facebook Profile — from Trading Secrets
• FireMe! App rescues tweeting employees from own indiscretions? — from Employment Law Worldview
• Time for those six second “selfies” with latest Vine update — from TiPb
• Twitter: A Sleeping Discovery Giant? — from Law.com
• The Mayo Clinic and Healthcare Social Media — from SocialFish
• The “Employee Tricked Me Into Firing Her” Defense — from Social Media Employment Law Blog
• NLRB Issues Facebook Firing Decision — from Phil Miles’s Lawffice Space
• “Catfishing” Gets Its First Legal Mention — from The Not-So Private Parts
• If a Tweet falls in the forest — from iFractal

HR & Employee Relations

• Workplace Violence, Part 2: Crisis management tips for employers — from Robin Shea’s Employment & Labor Insider
• When Uncle Sam calls your employees, what do you do – and not do? — from HR Cafe
• Alcohol Testing in the Workplace: An Employer’s Dilemma — from i-Sight Investigation Software Blog
• An Observation on Work-Life Balance — from Blogging4Jobs
• Paid Sick Leave Has Some Business Owners Feeling Ill — from You’re the Boss Blog
• The don of donut discipline — from PassiveAggressiveNotes.com

Wage & Hour

• DOL Audits Will Rise With New Funding Increases — from Wage & Hour - Development & Highlights
• Eighth Circuit Holds Plaintiffs Must Provide Evidence of Actual Damages Even when Employer Doesn't Keep Accurate Time Records — from Wage & Hour Counsel
• “Comp Time” Proposal: Be Careful What You Wish For — from Wage and Hour Laws Blog
• The Unpaid Internship Dilemma: Everyone Loses in This Crackdown — from TLNT

There’s no such thing as a free lunch

Your accounting records might soon look a little different—that is, if you provide perks at work such as free meals and if the IRS gets its way.

According to the Internal Revenue Code, certain employer-provided meals are exempt from the definition of “gross income” and, therefore, not taxed. To be considered non-taxed, an employer must provide a meal on its premises and for its convenience. Examples that might qualify:

• Employees working at remote sites (e.g., oil rigs).
• Emergency workers who have to be on-call.
• Employees whose peak work coincides with the lunch hour (e.g., bank tellers).

Silicon Valley’s tech companies are famous for the perks they offer to lure the best and brightest employees. One such perk—elaborately gourmet free meals (how does Facebook’s spicy she-crab soup and grilled steak with chimichurri sauce sound?). Never one to leave money on the table, the IRS is reportedly examining the taxability of these meals.

From the Huffington Post:

The free meals that tech companies like Facebook, Google, and Yahoo provide their employees should actually be taxed. But what does that really mean? Who should be paying for these meals and where is the line drawn? According to Martin J. McMahon, Jr., professor of tax law at the University of Florida, companies like Facebook and Google report these meals as tax-free fringe benefits, when they should be considered taxable fringe benefits. The cost of these meals, McMahon explains, should be considered a part of the employee’s salary. “Let’s say that an employee gets $2,000 in free meals and makes $50,000 a year. The company should report to the IRS that it paid the employee $52,000 in compensation on which the employee would be taxed,” McMahon says….As Professor McMahon explained … : “A company cannot provide tax-free meals if workers commute from home and have the ability to bring their lunches with them.”

I’m not a tax attorney. I don’t want to be a tax attorney. This might be the only tax-based post I will ever write. Here’s what to take away from this story. If you provide free food to your employees, however, you might soon need to start accounting for that food as a taxable benefit instead of tax-free benefit.

This post originally appeared on The Legal Workplace Blog.

[photo credit: Rich Anderson via photopincc]

Can we please fix Ohio’s age discrimination law?

It’s no secret that Ohio’s age discrimination statute is a hot mess. The statute has four different ways a plaintiff can file an age claim against an employer, each with a different statute of limitations and available remedies. What’s more, the statute requires that the plaintiff elect which one of the four specific statutory provisions the claim is asserted. Filing under one provision precludes a plaintiff from asserting a claim under any of the other three. This election can have a significant impact on the litigation, because it will dictate the remedies a plaintiff can seek.

If this scheme not complicated enough, federal law also requires that a plaintiff file an age discrimination charge with the EEOC as a prerequisite to filing a lawsuit alleging a violation of the ADEA. Because Ohio is a deferral state, any charges filed with the EEOC are automatically deemed dual-filed with the OCRC.

Not all Ohio state-law age discrimination claims, however, require exhaustion with the civil rights agency. In fact, R.C. 4112.99, which provides the most expansive remedies, has no exhaustion requirement at all. What happens, however, if a plaintiff files an age discrimination charge with the EEOC? Does that mean that the dual filing with the OCRC asks an election by the plaintiff to pursue an administrative claim (with limited remedies) instead of a civil lawsuit with more expansive remedies?

In Flint v. Mercy Health Partners of Southwest Ohio (S.D. Ohio 4/16/13), the district court concluded that filing first with the EEOC does not serve as an election of administrative remedies under Ohio’s age discrimination statutes:

This Court concludes that the Ohio Supreme Court would likely rule that filing a charge of age discrimination with the EEOC does not comprise an election of remedies…. Therefore, the Court holds that Plaintiffs’ pro se filing of an EEOC charge was not an election of remedies under the Ohio statute. This result acknowledges the complementary nature of federal and state employment discrimination procedures and disarms the “minefield” Ohio’s statutory scheme creates for the litigant wanting to pursue a remedy for age discrimination — something this Court finds particularly important when an employee is attempting to navigate that minefield without the assistance of legal counsel.

Ohio is contemplating expansive changes to its employment discrimination laws. The legislature should take the opportunity to disarm this "minefield" by creating one unified statute of limitations for all discrimination claims (I suggest one year to bring Ohio more in line with its federal counterpart), and eliminate the goofy and confusing election requirement that results from having four different types of age discrimination claims.

The legal and ethical issues of the class action “pick off”

Have you heard that the new owner of the Cleveland Browns has gotten himself into a bit of legal trouble? It’s alleged that Jimmy Haslem’s other business, Pilot Flying J, defrauded trucking companies of fuel rebates. In an effort to head-off a stream of civil lawsuits, Mr. Haslam has been meeting with customers to settle the alleged missing rebates. One such customer sought a temporary restraining order to stop such meetings because, according to the Wall Street Journal, Pilot was “obtaining releases, and settling claims before the potential class members even know the full extent of their claims.” Yesterday, the court denied the restraining order, permitting Haslem’s company to continue attempting to settle these claims.

Recall that just two weeks ago, the Supreme Court decided a case involving the pick-off named plaintiffs in wage and hour collective actions. In the Genesis Healthcare case, however, the employer communicated the offer to the plaintiff through her attorney. What happens, however, if the employer communicates directly with un-represented and un-named members of a yet-to-be-certified class? Is there anything prohibiting an employer from contacting them directly in an effort to obtain settlements of their potential claims? It depends.

There is nothing inherently unethical in defense counsel contacting putative class members at the pre-certification stage. According to ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 07-445 (2007) [pdf], communications between defense counsel and putative class members does not violate the Models Rules of Professional Responsibility because there is no attorney-client relationship between plaintiffs’ counsel and members of an un-certified, putative class.

Yet, a court still might limit such communications if they are designed to confuse or coerce.

In Gulf Oil v. Bernard (1981), the U.S. Supreme Court rejected the argument that defense counsel are per se prohibited from contacting putative class members before a class is certified. Instead, a court can only limit pre-certification communications to address communications that misrepresent the status or effect of the case or that have an obvious potential for confusion, and must be based on “a specific record showing by the moving party of the particular abuses by which it is threatened.”

In accordance with the Supreme Court’s Bernard decision, federal district courts have routinely refused to exercise their supervisory authority over communications with putative class members in situations where the complaining party cannot demonstrate actual abuses. Such abuses that would justify a gag order include communications that coerce putative members into excluding themselves from the class, undermine cooperation with or confidence in plaintiffs’ counsel, or suggest retaliation for participating in or assisting the class.

For example, in Parks v. Eastwood Ins. Servs. (C.D. Cal. 2002), the named plaintiffs brought a collective action against their employer for unpaid overtime under the Fair Labor Standard Act. Prior to sending a court-approved notice to putative class members, the employer sent a memorandum to its employees asking them to contact the company’s general counsel if they had any questions regarding the case. The court concluded that a curative communication was unnecessary because the at-issue memorandum was not coercive and did not suggest that any employee would be retaliated against for joining the class.

There are significant strategic decision that companies and their attorneys must make when defending class action lawsuits. Pre-certification communications with potential class members carries a big upside, albeit with the potential of significant risk.

With social media, all of your employees are brand ambassadors; train them accordingly

A Hockessin, Delaware, restaurant has gotten itself into a bit of hot water after it was discovered that its employees posted offensive photographs to the restaurant’s Facebook and Instagram pages. The photos were of receipts of bad-tipping customers, and included offensive and racist comments, including “'#deuchbag”, “#cheapass”, “#hillbillies”, “#cheap #jerk #indian”, and “#cheap #jew”.

While the accounts have been disabled, Daily Mail posted some of the screen-caps.

Whether you like it or not, social media has turned each of your employees into a brand ambassador. Can you afford to have your brand sullied by the offensive or racists rants of one of your employees? More importantly, how do you undo the damage caused? While an offending employee should be fired for the transgression, the firing won’t remove the stain left on your business. In this case, the owner posted a public apology to his customers, but that apology will not undo all of the viral damage done by a rogue employee. Additionally, the power to delete the post cannot stop others from publicizing the screencap of death. For example, this restaurant deleted the posts, but they live on in the Daily Mail story and in this post.

What is the answer?

1. Training, training, training. Employees need to understand that they will be held accountable with their jobs if they write something online that damages the reputation of your brand. Do not entrust this issue solely to your employees’ common sense. They will disappoint you.

2. Monitor your brand online. You do not want to find out about something like this for the first time with a reporter asking you for a comments. There are myriad tools available online to monitor your brand’s social presence. They are well worth the investment, especially when compared to the potential harm one disgruntled or renegade employee can cause. Google alerts are free, and are a great starting point. They will not, however, catch much of the social chatter. Two popular paid solutions (which I am not endorsing, but merely informing) are Radian6 and Wildfire.

3. Secure your IT and social media accounts. According to the owner of this restaurant, the accounts were hacked because he “left [his] iPad and stuff all around.” You need to secure your technology to ensure that employees cannot appropriate social media channel to which they should not have access.

If you want to see an example of one large scale organization trains its employees on the appropriate and responsible use of social media, specifically to address the risk of viral damage from negative or irresponsible posts, take a look at the training video Zurich Insurance has made available on YouTube:

YouTube also has available similar examples from Citrix, Sodexo, and KPMG. As with any policy or training your are considering implementing, check first with your own legal counsel.

WIRTW #271 (the “too hot to work” edition)

Do you remember the dental hygienist whom the Iowa Supreme Court declared too hot to work? Earlier this week, she attempted to “redeem” herself by appearing on a recent episode of Comedy Central’s Tosh.0 [h/t Above the Law] (NSFW):

Tosh.0

I’m happy to see that Ms. Nelson doesn’t perceive herself as a piece of meat to be inappropriately ogled by men. After Ms. Nelson lost her sex discrimination case I had sympathy for her because I thought the Iowa court made bad law. I still believe Nelson’s case is bad law; my sympathy for her, however, has gone down the drain.

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

Discrimination

• Senator Murphy: Prospects “Not Too Good” for Federal Bill Prohibiting Sexual Orientation Discrimination — from Dan Schwartz’s Connecticut Employment Law Blog
• Senate must act on gay workplace rights — from The Washington Post
• Hooter’s Waitress Alleges That Brain Surgery Resulted In Her Losing To Losing Her Job — from Workplace Prof Blog
• What Does GINA Have to Do With Employment Practices? — from The Emplawyerologist
• EEOC Checkup: Where Things Stand — from employeescreenIQ Blog
• What The Interactive Process Requires — from California Employment Law
• A Workplace Harassment Case for the Record Books — from i-Sight Investigation Software Blog
• Teach Employees about Sexual Harassment — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Monitoring employees’ use of company trademarks in social media — from Technology for HR
• If worker social media accounts are private, how can financial firms check for trading issues? — from ABA Journal Daily News
• Breaking Bad? NM is the 6th state to pass social media workplace law — from Eric Meyer’s The Employer Handbook Blog
• Federal Court Allows Service On Foreign Defendants Through Facebook — from Trading Secrets
• The top 5 trends in mobile and BYOD security — from Consumerization Blog

HR & Employee Relations

• California Court Tosses Idea Theft Suit Over LOST Television Show Out to Sea — from Trading Secrets
• From bullying, to mobbing, to ouster: The story of Ann Curry — from Minding the Workplace
• Being Proactive May Reduce Risk for Corporate Raiding and Loss of Sensitive Company Information — from netWORKed Lawyers
• Workplace Violence: Some things an employer can do — from Robin Shea’s Employment & Labor Insider
• Lessons from Boston: Employers confront terrorism — from Michigan Employment Law Connection
• How Elevators Reveal Office Pecking Order — from Fast Company

Wage & Hour

• Department of Labor to Increase Frequency of FMLA On-Site Investigations — from Jeff Nowak’s FMLA Insights
• Can Employers Limit FMLA Leave for Married Co-Workers? — from Hiring & Firing
• Employing teens – is it ok not to pay them for “training time”? — from Warren & Associates Blog
• Are Unpaid Interns Handy Helpers or a Source of Liability? — from Labor & Employment Law Perspectives
• Do FLSA Settlements Require Court Approval? — from Phil Miles’s Lawffice Space
• Payment of Wages While on Lock-Down — from CPEhr

Beware bans on pay discussions among employees

Pop quiz. What’s wrong with the following paragraph, which appeared in the April 17, 2013, Wall Street Journal article entitled, Workers Share Their Salary Secrets?

At Brian Bader’s orientation for a tech-support job with Apple three years ago, he says, human-resources managers ran down the list of guidelines workers were expected to follow. Don’t use explicit language on calls with customers. Treat other employees with respect. And, he says, they told the assembled recruits, don’t discuss your pay with co-workers.

If you answered, “An employer can’t legally prohibit employees from discussing how much they make,” give yourself a prize.

As the 6th Circuit explained in NLRB v. Main Street Terrace Care Center:

A rule prohibiting employees from communicating with one another regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees’ right to engage in protected concerted activity…. [T]he fact that the rule was promulgated orally rather than written in an employee handbook, for example, makes no difference….

Does your handbook have a policy that prohibits employees from discussing how much you pay them? If so, get rid of it.

Do your managers and supervisor know that they cannot terminate or discipline employees for discussing how much they make? If not, train them on these rules.

NLRB confirms legality of most at-will disclaimers (and employers everywhere rejoice)

The NLRB has confused me with its apparent reasonableness. Last week, the NLRB published an advice memorandum from its Office of General Counsel, in which it opined that the at-will disclaimer in an employer’s handbook did not violate employees’ Section 7 rights to engage in protected, concerted activity.

Recall that last year, the NLRB launched a preliminary offensive against handbook at-will disclaimers.

In its most recent proclamation [pdf], the Board considered the following at-will language:

Employment with the Company is at-will which means the employment relationship may be terminated with or without cause and with or without notice at any time by you or the Company. In addition, the Company may alter an employee’s position, duties, title or compensation at any time, with or without notice and with or without cause. Nothing in this Handbook or in any document or statement and nothing implied from any course of conduct shall limit the Company’s or employee’s right to terminate employment at-will. Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.

The NLRB’s Office of GC concluded that the italicized language is lawful because it cannot reasonably be interpreted to restrict employees’ Section 7 rights to engage in concerted attempts to change the employment at-will status. The Office of GC contrasted this language with other language that an NLRB Administrative Law Judge has previously found unlawful: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The difference, according to this memo, is the ability to modify the at-will nature of the employment in the future.

The take-aways?

1. The NLRB will examine at-will disclaimers on a case-by-case basis, and I do not expect we will see the Board take the unreasonable position that all at-will disclaimers are unlawful.
2. You should take a look at your current at-will language to make sure it does not foreclose the possibility of future modifications of employees’ at-will status.

I’ll leave you with one final thought. In a footnote, the Office of GC made the following comment: “The Board repeatedly has said that potentially violative phrases must be read in context and that it will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity.” If that statement is true, how can the NLRB continue to justify its over-the-top policy statements on social media policies? If the NLRB can carry its reasonable position on at-will disclaimers over to social media policies, I think we might just become friends.

Staged RIFs qualify for heightened protection from age discrimination

Employers who eliminate headcount as part of a reduction in force receive special protection under the age discrimination laws. In a bona fide RIF, the employer has a built-in legitimate, non-discriminatory reason for a termination—the business considerations and economic necessities that caused the job eliminations. In such a case, an employee cannot establish a prima facie case of age discrimination without some additional direct, circumstantial, or statistical evidence showing that age was a factor in the termination. The mere termination of a competent employee in the face of economically based cutbacks is not enough to establish a prima facie case of age discrimination.

What happens, though, when an employer cuts headcount in stages? For example, what if an employer facing economic distress lays off a number of employees, and a year later lays off someone else? Can the employer claim the benefit of the more stringent age discrimination test that accompanies a bona fide RIF for the later termination?

Such was the case in Weisfeld v. PASCO, Inc. (Ohio Ct. App. 4/17/13) [pdf]. In 2009, PASCO lost a contract that accounted for 80 – 90 percent of its revenue. As a result, it laid off more than 80 percent of its employees. Most of those firings happened shortly after the lost contract. The company waited a year, though, to fire six key employees, including Todd Weisfeld, its 48-year-old director of technology, who declined a restructured job as a network coordinator.

In his ensuing age discrimination lawsuit, Mr. Weisfeld argued that the passage of time between when PASCO terminated him as compared to the bulk of his co-workers precluded the company from claiming that Weisfeld’s termination was part of a reduction in force. The court, however, disagreed:

Contrary to Mr. Weisfeld’s understanding, an employee is terminated pursuant to a reduction in force whenever “business considerations” are the driving force behind the company’s decision. It is immaterial that PASCO eliminated some positions immediately after losing the California contract and waited over a year to eliminate other positions. So long as the company’s decision was because of business considerations and it did not replace Mr. Weisfeld with another employee, his discharge was pursuant to a reduction in force.

Absent any evidence that PASCO lacked a legitimate business reason for eliminating its director of technology position, Mr. Weisfeld’s age discrimination claim failed.

This case shows the powerful advantage that employers hold in defending discrimination cases that arise out of reductions in force. It also shows that RIFs can occur in stages and over time. At least according to Weisfeld v. PASCO, an employer can retain key employees during a layoff and still claim the evidentiary benefit of the RIF when economic realities dictate a later termination of those key employees.

NLRB offers further guidance on confidential workplace investigations

Last July, I cautioned employers about the NLRB’s decision in Banner Estrella Medical Center. In that case, the NLRB held that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. At the time, I wrote the following:

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

I’m not certain that the NLRB heeded my warning, but last week it did signal that it is backing off its unreasonable position. In a recently published advice memorandum, the NLRB’s Office of General Counsel clarified the Board’s position on confidential workplace investigations.

The GC considered the following policy:

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.

To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In the opinion of the NLRB’s Office of General Counsel, this policy’s blanket confidentiality restrictions placed on workplace investigations violated employees’ rights to engage in protected, concerted activity. The Office of GC believed that while the first paragraph is perfectly legal, the second is overly restrictive. In its place, the Office of GC suggested provided substitute language that would pass muster under Section 7. Specifically, he suggested that replacing the last two sentences of the policy with the following language would render the policy legal:

[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In other words, if an employer makes confidentiality discretionary, on an investigation-by-investigation basis, the policy would pass Section 7 scrutiny.

Some may herald this opinion as a victory for employers. To me, its a difference without a distinction. All workplace investigation should be confidential. Otherwise, an employer can lawfully carry out its obligation to conduct an untainted investigation. Even if you have the suggested “discretionary” language in your harassment or workplace misconduct policy, you should nevertheless exercise that discretion in every investigation.. So, I ask, if every investigation should be confidential, what is the harm in providing for mandatory confidentiality in a policy?

I applaud the NLRB’s Office of General Counsel for offering employers suggested language. I still believe, however, that the NLRB fails to understand the importance of confidentiality in workplace investigations, and further fails to understand the realities of how workplace investigations work.

[Hat tip: Lorene Schaefer’s Win-Win HR]

WIRWT #270 (the “… and the home of the brave” edition)

Have you seen the video of the National Anthem at last night’s Boston Bruins’s game? Do you want to get choked up watching 17,565 Bostonians sing their collective hearts out? Well, here you go [h/t: The 700 Level]

 

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

Discrimination

• Case Of Muslim Employees Denied Time For Prayer To Go To Trial — from Employment Discrimination Report
• ADA accommodation talk should occur before employment decision — from EmployerLINC
• It Is All About How You Handle an Equal Opportunity Harasser — from Employer Law Report
• A reminder: retaliation claims can (and often do) succeed even where the Underlying Claim Fails — from Warren & Associates Blog
• Dear Evil Skippy: Is It Harassment To Call An Employee “Stupid”? — from Evil Skippy at Work
• Playing with the Cards Your Dealt Is Critical to Resolving Employment Discrimination Claims — from Jason Shinn’s Michigan Employment Law Advisor
• “Looks” discrimination can be a problem even if you're in retail, fashion, or marketing — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Workplace Issues Now Grow on “Vines”; Why Employers Need a Policy More Than Ever — from Dan Schwartz’s Connecticut Employment Law Blog
• Survey Says: Why Doesn’t HR Believe in Social Media Employment Background Checks? — from employeescreenIQ Blog
• The New Résumé: It's 140 Characters — from the Wall Street Journal
• Instagram Post Lands Delaware Restaurant Manager In Hot Water — from Molly DiBianca’s Delaware Employment Law Blog
• You’ve Got (No) Mail! Major Law Firm Blocks Employee Email Access — from Above the Law
• The Computer Fraud and Abuse Act and Disloyal Employees: A Narrow Bridge To Nowhere? — from Trading Secrets
• TimeRescue Joins Market for Time and Productivity Tools — from Workforce

HR & Employee Relations

• Why Courts Like Non-Solicits over Non-Competes — from Smooth Transitions
• A whopper of a resignation — from Passive Aggressive Notes
• Pregnant at Work — from Lawyerist
• The Do’s And Don’ts Of Discussing National Tragedies At Work — from Workplace Diva

Wage & Hour

• DOL Publishes PowerPoint Presentation to Help Train Employees about FMLA from Jeff Nowak’s FMLA Insights
• Supreme Court Vacates 7th Circuit Class Certification Ruling, Signaling Shift In The Landscape Of Wage-And-Hour Litigation — from Wage & Hour Defense Institute
• Use Of Preemption Defense In Wage-Hour Lawsuit May Kill Entire Action — from Wage & Hour - Development & Highlights
• Guess What We Got With the Acquisition? A $500,000 FLSA Bill — from TLNT

Labor Relations

• In dust of Strongsville teachers strike is myriad of legal questions — from Cleveland.com
• House Votes To Freeze NLRB — from Workplace Prof Blog
• 3 Things Employers Need to Know About the NLRA — from Workplace Insights
• Circuit Court Affirms Healthcare Facilities' Single Employer Status Under NLRA — from Labor Relations Counsel

There is no such thing as a “license to harass”

To establish an unlawful hostile work environment, an employee must prove, among other factors, that the workplace was subjectively offensive. Some employers misinterpret this requirement as meaning that an employee who participates in sexual banter, off-color jokes, or shares intimate details of her personal life is asking to be harassed.

Case in point? In EEOC v. Joe Ryan Enterprises (M.D. Ala. 3/28/13), the employer attempted to defend against a sexual harassment lawsuit by arguing that it had a “license” to harass the plaintiff, presumably because of her earlier participation in similarly offensive misconduct in the workplace. The district court was not having any of that argument, and granted the EEOC’s motion to prohibit the employer from raising that defense:

The Court has come across no authority to support Joe Ryan’s proposition that the defenses of “license” and “ratification” apply in a sexual harassment/constructive discharge context....

Still, even if the Court were to entertain this defense, it is clear that what Joe Ryan has argued is a far cry from the traditional defenses of “license” and “ratification.” Indeed, in its opposition brief, Joe Ryan claims that Ms. Brown’s “eager, enthusiastic and contributory participation to the acts and language she now complains of” evidences her purported “license” and “ratification” of the discriminatory conduct she endured while employed with Joe Ryan.

In Joe Ryan, the employee allegedly hung a sexually suggestive cartoon in a work trailer. Just because an employee engages in some workplace banter, however, does not mean that she acquiesces to all forms of sexual misconduct, such as being called a “whore” (one of the allegations in the case).

Employers need to build these concepts into their workplace anti-harassment training. Employees need to understand that some participation in sex-based workplace hijinks does not create a license to harass in perpetuity. No one can tell where someone draws his or her personal line of inappropriateness, and trying to make that decision for someone else can only result in trouble (i.e., a lawsuit) down the road.

This post originally appeared on The Legal Workplace Blog.

SCOTUS: Picking off individual plaintiffs moots wage and hour collective action

The pickoff is one of the most dramatic defensive plays in baseball. It can single-handedly kill a rally. The tying run on first? One deft move by the pitcher to first base, coupled with a lead that’s one step too cocky? Rally over.

We love baseball in part because it can be a metaphor for much that happens in our lives. Today, it’s a metaphor for wage and hour law.

The issue the Supreme Court faced in Genesis Healthcare Corp. v. Symczyk (4/16/13) [pdf] was whether a case becomes moot when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims. Last December, I predicted an employer loss in this case (the link also provides all the case background you’ll need).

I’m happy to report that my prediction was very wrong. In a partisan 5-4 decision, the Court held as follows:

Because respondent had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness, her suit was appropriately dismissed for lack of subject-matter jurisdiction.

In other words, because there was nothing left for the plaintiff to litigate after the rejected offer of judgment, the plaintiff had no right to pursue the remaining collective claims.

Here’s the money quote from the Court:

In this case, respondent’s complaint requested statutory damages. Unlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant’s attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff’s alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent’s suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their claims settled or adjudicated following respondent’s suit than if her suit had never been filed at all.

There is perhaps no greater threat facing employers than the risk of a wage and hour collective action—both because of the difficulty in complying with the FLSA’s maze of anachronistic rules and regulations, and because of the expense incurred in defending such a claim. Genesis Healthcare confirms that employers have a powerful weapon at their disposal to cut these dangerous claims off at their knees—a Rule 68 offer of judgment.

Much like a baserunner failing to anticipate a deft pitcher’s move to first base, the Court confirmed that a valid offer of judgment can catch your opponent off-guard and end their hopes of a successful collective action.

For more analysis of this decision, please read the thoughts of some of my fellow bloggers:

• SCOTUS Blog — Opinion recap: A “pick off” strategy works
• Phil Miles’s Lawffice Space — SCOTUS Decides FLSA Pick-Off Case 
• Eric Meyer’s The Employer Handbook Blog —Employee caught in a pick, Supreme Court scratches her FLSA claims
• Workplace Prof Blog — Supreme Court Holds That Employer's Offer Moots FLSA Class Action Prior To Certification
• Michael Fox’s Jotting’s By An Employer’s Lawyer — Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?
• Daily Kos — Conservative Supremes thwart fair wages claim, and Kagan lets 'em have it
• The Wage & Hour Litigation Blog — Genesis of A Clearer Distinction Between Class and Collective Actions? Supreme Court Decides Symczyk

photo credit: Chicago Man via photopin cc

Do you have a workplace emergency action plan?

Yesterday’s tragedy in Boston has left me speechless. I’m frankly not sure what to say, other than I’m sick of these horrible events; what to think, other than to offer prayers; or what to feel, other than sadness for those affected.

We will search for answers (How could this happen? Who could do such a thing? How can anyone be capable of such hatred or ignorance? How do we prevent it from happening yet again?) Yet, from this tragedy we can take away one certainty—that no one can predict when or where tragedy will strike, and it pays to be prepared for the worst. Boston seems to have been prepared, and at least by early accounts, the city’s early responders helped save many from suffering a worse fate.

Employers can learn an important lesson from these ashes and tears—the importance of being prepared. OSHA publishes a booklet entitled, How to Plan for Workplace Emergencies and Evacuations. Not all employers are required to follow it, but all employers should heed its words by taking steps to prepare for the worst.

As OSHA explains it:

Nobody expects an emergency or disaster—especially one that affects them, their employees, and their business personally. Yet the simple truth is that emergencies and disasters can strike anyone, anytime, and anywhere. You and your employees could be forced to evacuate your company when you least expect it.… The best way to protect yourself, your workers, and your business is to expect the unexpected and develop a well-thoughtout emergency action plan to guide you when immediate action is necessary.… Few people can think clearly and logically in a crisis, so it is important to do so in advance, when you have time to be thorough. Brainstorm the worst-case scenarios. Ask yourself what you would do if the worst happened.

You cannot control the idiocy of others, but you can control whether you know how to respond if it happens.

I’ll leave you with the words of stand-up comic and actor Patton Oswald, who, on his Facebook page, held out hope for humanity’s inherent goodness, and perhaps made the most poignant statement in the wake of yesterday’s horrors:

Boston. F*cking horrible.

I remember, when 9/11 went down, my reaction was, “Well, I’ve had it with humanity.”

But I was wrong. I don’t know what’s going to be revealed to be behind all of this mayhem. One human insect or a poisonous mass of broken sociopaths.

But here’s what I DO know. If it’s one person or a HUNDRED people, that number is not even a fraction of a fraction of a fraction of a percent of the population on this planet. You watch the videos of the carnage and there are people running TOWARDS the destruction to help out. (Thanks FAKE Gallery founder and owner Paul Kozlowski for pointing this out to me). This is a giant planet and we’re lucky to live on it but there are prices and penalties incurred for the daily miracle of existence. One of them is, every once in awhile, the wiring of a tiny sliver of the species gets snarled and they’re pointed towards darkness.

But the vast majority stands against that darkness and, like white blood cells attacking a virus, they dilute and weaken and eventually wash away the evil doers and, more importantly, the damage they wreak. This is beyond religion or creed or nation. We would not be here if humanity were inherently evil. We’d have eaten ourselves alive long ago.

So when you spot violence, or bigotry, or intolerance or fear or just garden-variety misogyny, hatred or ignorance, just look it in the eye and think, “The good outnumber you, and we always will.”

A Muslim walks into a store… Corporate “Look Policies” and religious discrimination

I’ve written before about the tension between companies’ preferences for how employees look and the religious freedoms of those employees (here, here, here, and here).

One company that has gone many rounds in litigation over this issue is Abercrombie & Fitch. Anyone who has walked past an Abercrombie store knows the waft of its familiar fragrance. Abercrombie is not only interested in consistency in how its stores smell, but also how the employees who work in those stores look. To this end, Abercrombie maintains a formal “Look Policy,” detailing what employees are, and are not, permitted to wear. One of its bans is on headwear. According to Abercrombie, it has made at least 70 exceptions to its Look Policy in the last seven year, all on a case-by-case basis, including some religious accommodations for hijabs.

In EEOC v. Abercrombie & Fitch Stores (N.D. Cal. 4/9/13) [pdf], the EEOC alleges that a Milpitas, California, Abercrombie stored refused to accommodate Halla Banafa’s Muslim faith when it refused an exception to its Look Policy for her head scarf. The stored clued Banafa into the fact that her religion might be an issue when it asked her during the interview, “You're a Muslim, right?”
Abercrombie argued that it did not have to accommodate Banafa because it was an undue hardship to deviate from its Look Policy in her case. Specifically, Abercrombie argued that allowing the exception “would disrupt its careful branding efforts, resulting in customer confusion,” and that it would “hurt store performance.”

The court, however, sided with the EEOC, granting its motion to strike the store’s undue hardship defense:

Abercrombie does not offer any studies demonstrating a correlation between failure to comply with the Look Policy and either customer confusion or decreased sales. Nor does it offer into evidence any of the store reports that linked poor sales performance with lack of adherence to the Look Policy. Rather, Abercrombie offers only the seemingly speculative assertion on the part of its executives that the correlation exists…. Abercrombie’s executives consider adherence to the Look Policy important and part of their core strategy, yet they are unable to furnish any evidence outlining the degree to which Look Policy compliance affects store performance or brand image…. [T]he court finds that Abercrombie’s proffered evidence affords little basis upon which a reasonable jury could conclude that Abercrombie would be unduly burdened in permitting Ms. Banafa to wear a hijab at work.

This opinion is in line with that of at least two other courts that have ruled on the same issue under Abercrombie’s Look Policy (here and here).

The lessons to be learned?

1. No good comes from asking a potential employee about his or her religion during a job interview.
2. If you are going to selectively grant exceptions to work rules, your decisions will be scrutinized if later challenged in litigation, and your better have good reasons available.
3. If you hope to claim an undue hardship defense to a religious accommodation claim based on your company’s image, you need to have the hard data to back your claim. Hypothetical hardships likely will not carry the day.

[Hat tip: Chai Feldblum]

WIRTW #269 (the “roshambo” edition)

On Wednesday’s edition of DriveThruHR, Dan Schwartz challenged me to a game of Rock-Paper-Scissors to determine, once and for all, who reigns supreme in the world of employment law blogging. Dan, you’re on (and you’re going down). Just let me know when.

http://roshambo.me/

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

Discrimination

• Fired and told “your a little too old for your job,” Old Rose LOSES her age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• A Refresher Course For Employers On Retaliation — from Employment Discrimination Report
• Should Smokers be a Protected Category? — from Mike Haberman’s Omega HR Solutions
• Is It Religious Harassment To Hand Out Chocolate — from Evil Skippy at Work
• Can I Be Fired for Being Gay? — from Blogging4Jobs
• Five snips on workplace harassment (plus a bonus) — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Should You Fire Employees Who Use (or Misuse, However Defined) Social Media? — from Dan Schwartz’s Connecticut Employment Law Blog
• What’s your opinion of BYOD privacy? — from Consumerization Blog RSS
• Coping With the Rising Mobile Workforce and the BYOD Culture — from TLNT
• Internet and Email Use in the Workplace — from ERC Insights Blog
• The Duty To Preserve Social Media Information — from Social Media Employment Law Blog
• Employees who use social media are more efficient, survey says — from Ragan.com
• Law and Order: Human Resources Unit – LinkedIn Lockout — from HR Idiot

HR & Employee Relations

• Employee Theft Blacklist: What Could Possibly Go Wrong? — from Nolo’s Employment Law Blog
• Think Your Company’s Confidential Information is Safe? Think Again! — from HR Defense Blog
• Ethical failure at Rutgers: Abusive coach, bad management, questionable lawyering — from Minding the Workplace
• Cease and Desist Letters: Defamation May Not Be An Issue But Watch Out for Tortious Interference — from Trade Secret Litigator Blog

Wage & Hour

• The Employment Law You Are Probably Breaking — from Evil HR Lady, Suzanne Lucas
• High-Tech Employers Dodge Class Certification In Anti-Solicitation Antitrust Case — from Workplace Class Action Litigation
• What Happened, Dude?: Overtime Hours, Working Time, and Tracking Apps — from The Wage & Hour Litigation Blog

Labor Relations

• Quorum, Heck a Fully Appointed NLRB? — from Michael Fox’s Jottings By An Employer’s Lawyer
• Obama Re-Nominates Pearce, Names Two Others to Fill Republican NLRB — from Labor Relations Counsel
• White House to Nominate Three NLRB Members — from Workplace Prof Blog

New bill seeks to extend comp time to private employers

One question employers ask me all the time is whether they can provide employees comp time (extra time off) in lieu of overtime. For private-sector employers, my answer is always the same—no.

I am hoping, however, that I soon may have to change my answer. Earlier this week, the Working Families Flexibility Act of 2013 [H.R. 1406] was introduced in Congress.

This bill would do all of the following:

• Permit employers to provide compensatory time off, earned at the rate of 1.5 hours per hour of overtime worked, in lieu of overtime pay.
• Provide that any comp time program must be supported by a written agreement.
• Allow employers to exclude from any comp time program employees who have worked less than 1,000 hours in the prior 12 months.
• Cap the annual comp time allotment at 160 hours per employee.
• Require that employers pay out any unused comp time at termination.
• Permits employees to use comp time upon reasonable notice, unless it unduly disrupts the employer’s operations.

The FLSA already provides similar rights to public sector employers. It’s about time that the law is changed to provide the same rights to those in the private sector. I’ll keep everyone updated if there is any movement on this bill.

Bald is beautiful … unless you’re a Hooters waitress after brain surgery

Sandra Lupo took three weeks off from her job as a Hooters waitress for brain surgery. During her leave, her manager assured her that she would be able to return to work with a “chemo cap” or jewelry to distract customers from her buzz cut and large scar. Upon her return, however, Hooters changed course and told Ms. Lupo that she would have to wear a wig. When she could not comply because the wig irritated her scar, Hooters cut her hours until she was forced to quit. According to the St. Louis Post-Dispatch, she is now suing Hooters for disability discrimination.

Let’s first take care of the low hanging fruit. The insensitivity of Hooters’s reaction to this situation is easy to spot. Just because Hooters acted insensitively, however, does not mean that it acted illegally. Indeed, whether the wig requirement discriminated against Ms. Lupo is a tricky question.

The ADA protects three classes of individuals:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual.
2. Those regarded as having such an impairment.
3. Those with a record of such an impairment.

Actual Disability

Post-surgery, Ms. Lupo is going to have a difficult time claiming an actual disability. Even if her benign brain tumor was an ADA disability pre-surgery, after its removal she no longer had a current “physical or mental impairment that substantially limits one or more major life activities of such individual.” Therefore, as the 6th Circuit recently recognized in Blosser v. AK Steel Corp., a tumor that has been removed is not an actual disability. 

“Regarded as” Disability

Because of the temporary nature of her baldness, Ms. Lupo is also going to have a difficult time claiming that Hooters “regarded her” as disabled. To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental impairment, and that the impairment was one with a duration of more than six months. Thus, even if Hooters perceived Ms. Lupo as impaired because of her post-surgery appearance, that appearance would dissipate in six months with the regrowth of her hair.

“Record of Disability”

Ms. Lupo’s best claim is going to be that Hooters discriminated against her because of a “record of” an impairment. “Record of” disability claims are intended to ensure that employees are not discriminated against because of a history of disability. According to one court, “The ‘record of’ definition was tailor-made for plaintiffs who … claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it.”

Yet, Ms. Lupo’s claim under this provision of the ADA is not clean. As the Blosser court noted, when a brain tumor is temporary and resolved by surgery, and the employee is able to return to work without restriction, a “record of” disability claim fails. Ms. Lupo will have a hard time establishing this claim because of the short duration of her underlying medical condition, coupled with her return to work free of any residual medical issues. Also, if Ms. Lupo does not have a protected record of a disability, Hooters has no obligation to provide any reasonable accommodation.

While Hooters will take a beating in the press over its treatment of Ms. Lupo, it is not a slam-dunk that such mistreatment violates the ADA.

[Hat tip: Eve Tahmincioglu]

photo credit: greenfaerietree via photopin cc

28 days later? Passage of time justifies recertification of intermittent FMLA leave

The FMLA permits an employer to “require that [an] eligible employee obtain subsequent [medical] re-certifications on a reasonable basis.” The FMLA’s regulations define what constitutes a “reasonable basis.” Under the regulations, and employer cannot ask for a recertification more than once every 30 days, unless “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).”

In Graham v. Bluecross Blueshield of Tenn., the 6th Circuit recently held that the passage of time alone can constitute sufficiently changed circumstances to justify an employer’s early request for a recertification:

We agree with the district court's ruling as to the reasonableness of BCBST’s request for recertification after Graham’s 28 consecutive absences, in that they constituted “significantly changed circumstances….” As the district court observed, this period of absenteeism was twice as long as Graham’s longest previous episode in March 2007.

Because the employee failed to respond to a lawful recertification request, the leave was not FMLA leave, and the employer was entitled to consider the absences as unexcused.

Managing FMLA leave, and particularly managing intermittent FMLA leave, is one the most challenging tasks for employers. What qualifies as “significantly changed circumstances” will vary from case to case. Do not mistake this case as carte blanche to demand a recertification after every prolonged period of absence. Instead, consult with your employment counsel to determine the best course of action before your hasty actions get you in trouble under the FMLA.

A “wet one” renders him gay? 5th Circuit to reconsider same-sex harassment case

In EEOC v. Boh Brothers Constr. Co., ironworker Kerry Woods (male) asserted that his supervisor, Chuck Wolfe, subjected him to all of the following:

• Called Woods names such as “faggot” and “princess.”
• Approached Woods from behind to simulate sexual intercourse.
• Exposed his genitals to Woods numerous times.
• Accused Woods of being girlish because he used “Wet Ones” instead of toilet paper to clean himself after using the bathroom.

Neither Woods nor Wolfe is homosexual. According to the Court, the workplace was full of this type of misogynistic and homophobic epithets, and the recipients, including Woods, responded in kind.

After Woods’s termination, he filed a discrimination charge with the EEOC, claiming, among other things, same-sex harassment. In the subsequent lawsuit filed the EEOC, the jury returned a verdict in Woods’s favor, awarding him $200,000 in compensatory damages (statutorily reduced to $50,000) and $250,000 in punitive damages.

The 5th Circuit, however, reversed:

Title VII protects employees against workplace discrimination, not against all forms of mistreatment. The EEOC alleges that Woods was unlawfully harassed because he was not stereotypically masculine. Because the only evidence of non-stereotypically masculine behavior in the record is Woods’s use of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against “because of … sex.”

In other words, Woods could not establish unlawful same-sex harassment because Wolfe was not homosexual, was not hostile to men in the workplace, and worked in a single-sex workplace. The 5th Circuit left for another day the question of whether sex stereotyping is a cognizable form of same-sex harassment under Title VII.

It appears that day is upon us. Last month, the 5th Circuit agreed to rehear this case en banc.

The issue will resolve tension between two Supreme Court opinions:

• Price Waterhouse v. Hopkins, the seminal case on the illegality of sex-based stereotypes under Title VII.
• Oncale v. Sundowner Offshore Services, which permits same-sex harassment claims, but only if the harasser: (i) is homosexual, (ii) is motivated by a general hostility to the presence of the same sex in the workplace, or (iii) comparatively treated members of one sex differently than members of the other in a mixed-sex workplace.

If the 5th Circuit reverses course and permits the EEOC to pursue Woods’s claim for general same-sex harassment, it will signal a giant step towards doing that which Congress has refused—protecting sexual orientation from discrimination as a class.

[Hat tip: Workplace Prof Blog]