WIRTW #289 (the “now you see me” edition)

Every now and again I like to provide you an update on my upcoming speaking engagements. If you are attending one of these events, please stop and say hi. I love meeting readers.

• Think Before You Click: Strategies for Managing Social Media in the Workplace — Midwest Labor & Employment Law Conference (October 4)
• X+Y+Z = A Generational Mess for Your Workplace Policies — 2013 COSE Small Business Convention (October 24)
• New NLRB Requirements — NBI Teleconference (November 1)

As always, you can find all of my past and future speaking gigs by clicking on the Speaking Engagements tab at the top of the page.

Also, if you’re not tired of reading what I have to say, you can check out my column in this month’s issue of Law Practice Today, on managing generational issues in the workplace. Thanks to Molly DiBianca for inviting my participation.

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

Discrimination

• EEOC Sues Popeye’s for Failing to Hire Applicant with HIV — from Smart HR Manager
• GINA: Don’t Ask About Mom! — from Employment Law Lookout
• Workplace Revenge and the Equal Opportunity Jerk — from Molly DiBianca’s Delaware Employment Law Blog
• How ordering cheesesteaks can help employers with disability-accommodation requests — from Eric Meyer’s The Employer Handbook Blog
• Abercrombie & Fitch Loses Yet Another Religious Garb Case — from Wisconsin Employment & Labor Law Blog
• Why Employers Need to Respond to EEOC Subpoenas As Soon As Possible — from Minnesota Employer
• Top 5 tips for employers when managing pregnant employees — from Employment Intelligence
• Thou Shalt Not Retaliate Against Thine Employees—Ever!! — from The Emplawyerologist
• Transgender Discrimination: Update Your Company Policies — from In House

Social Media & Workplace Technology

• A “Like” is a Like, Court Says, and is Protected Free Speech — from Dan Schwartz’s Connecticut Employment Law Blog
• A Peak at Workplace Privacy Laws: 10 Things All Employers Need to Know — from The Sociable Lawyer Blog
• Twitter’s Counsel Helped Make Financial Tweets Legal — from WSJ.com Law Blog
• Non-Solicitation Clauses and Social Media — from Augmented Legality
• Here’s how Apple’s iPhone 5s fingerprint scanner might incriminate you — from Boy Genius Report
• Employment law app - check it out! — from Robin Shea’s Employment and Labor Insider
• Smartphones now account for almost two-thirds of all mobile phones in the U.S. — from Boy Genius Report

HR & Employee Relations

• Trade Secrets - Even if You Didn’t Use or Disclose Them You Can Be Liable — from Suits by Suits
• Workplace Threats? Kiss Your Job and Your Unemployment Compensation Goodbye — from Phil Miles’s Lawffice Space
• The Proper Way To Say Goodbye To Departing Employees — from Employment Essentials
• The Witness Files: The High-Risk Harasser — from i-Sight Investigation Software Blog
• Detroit’s bankruptcy: lessons for employers — from Michigan Employment Law Connection
• Employers’ evolving use of background and credit checks — from EmployerLINC
• 73% of Workers Want More Flexibility in the Workplace — from Blogging4Jobs

Wage & Hour

• Are Unpaid Interns and Law Clerks Illegal? — from Lawyerist
• 8th Cir.: Unauthorized Aliens May Sue Under the FLSA to Recover Damages for Work Performed — from Overtime Law Blog
• Labor Secretary Details Obama Administration Wage-Hour Agenda at AFL-CIO Convention — from Wage and Hour Law Update

Expanding my reach: Announcing my monthly column in Workforce magazine.

It’s been almost a year-and-a-half since I started my relationship with Workforce.com. Most days, Workforce.com republishes my blog at The Practical Employer.

Workforce.com is the website of Workforce magazine, the world’s oldest HR publication, clocking in at 91 years old.

I was honored when, early this year, Workforce’s editorial director asked me to expand my relationship with the magazine by joining its Editorial Advisory Board. In this role, I, along with a dozen other industry leaders, content experts, and HR executives from leading companies, provide input and guidance into the editorial strategy and execution of the publication.

Part of this editorial strategy was directed at this month’s relaunch of the print magazine. One of the key cogs in this relaunch is the inclusion of monthly columnists in the magazine. To this end, I’ll be anchoring the magazine’s legal section with a monthly column.

You can read my first column—Talkin’ ‘bout Retaliation—in the September issue of Workforce.

DOL expands wage and hour laws to home care workers

Do you employ home health aides, personal care aides, or certified nursing assistants? Do you pay them less than the minimum wage, or less than time-and-a-half for any hours worked in excess of 40 in a week? If you answered “yes” to both of these questions, then you will need to make a big change to your pay practices beginning January 1, 2015.

Yesterday, the Department of Labor’s Wage and Hour Division released its final rule [pdf] extending minimum wage and overtime protections under the Fair Labor Standards Act to home care workers.

Beginning January 1, 2015, third-party employers (such as home-care staffing agencies) will no longer be entitled to claim that home care workers are exempt under the FLSA’s companionship services or live-in domestic service exemptions.

Steven Greenhouse, writing in the New York Times (hat tip: Workplace Prof Blog), did a great job summarizing this new rule:

Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services”—defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance—are limited to the individual, family or household using the services.

If an aide or companion provides “care” that exceeds 20 percent of the total hours he or she works each week, then the worker is to receive minimum wage and overtime protections.

In support of this change, the DOL has published various resources—including a Home Care web portal, a FAQ, various fact sheets, and interactive web tools—which are worth your time reading if you think you employ workers covered by this new rule.

Your company’s personnel files are not your employees’ personal property

One repeat question that I seem to receive is whether employees have a right to see their personnel files. At least in Ohio, the answer is “no”—with three key exceptions:

1. Medical Records. Ohio Revised Code 4113.23(A) provides employees access to their own medical records from physical examinations either that are required for employment or stem from a job-related injury or disease.

2. Wage & Hour Records. Ohio Revised Code 4111.14(G) provides employees (or their designated representative) access to their own wage and hour records, which must include their rate of pay, total gross wages per pay period, and hours worked each day.

3. Public Employees. Ohio Revised Code 149.43 provides employees of the state, or any county, city, village, township, or school district, access to their personnel files as public records.

Mileage may vary in your jurisdiction. According to The HR Café, 20 states require that employers provide employees periodic access to their personnel files. Thus, it is critical that you have a policy establishing rights and expectations in relation to personnel files. Something as simple as, “The Company will provide employees access to personnel files according to state law,” should suffice.

Also, unless a state law provides otherwise, if you permit access to personnel files you should make the following internal decisions about their handling:

• Will you permit access to an entire file, or only certain parts?
• Will you permit employees to photocopy parts of their files?
• Will you permit employees to designate their right to inspect (for example, to a family member, union rep, or lawyer)?
• Will you permit employees to challenge information, and if so, how?
• Will you place limits on access to confidential information (i.e., background checks or workplace investigation reports)?
• Will you limit how often an employee can access a personnel file?

How does state law interpret a “disability” after the ADAAA?

This coming January will mark the five-year anniversary of the ADA Amendments Act. The ADAAA expanded the definition of a “disability” by undoing decades of Supreme Court precedent.

One example is the distinction between a long-term ailment and a short-term or temporary disabling condition. Under the originally drafted ADA, as interpreted by the U.S. Supreme Court in Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002), to be substantially limiting and meet the definition of a “disability” an impairment “must ... be permanent or long term.” With the ADAAA, Congress rejected the Williams construction of “substantially limiting” by requiring an individualized inquiry of an impairments limitations regardless of the duration of the impairment.

One lingering question, however, is whether courts interpreting state disability statutes will fall in line with the ADAAA, or chart their own course under their own separate state laws. Ohio courts, for example, have long held that they look to federal law to interpret Ohio’s employment discrimination statutes, including that which prohibits disability discrimination. Does this rule hold in state-law disability-discrimination claims in the absence of an intent expressed by the Ohio legislature to follow the changes in the ADAAA?

In Welch v. IAC Huron, LLC (N.D. Ohio 9/10/13), we get the beginnings an answer to this important question. Welsh involved an employee with a short-term, yet disabling, shoulder injury. She sued under Ohio’s disability discrimination statute after her employer terminated her during her medical leave. The employer argued that Welch was not disabled because Ohio’s disability discrimination law follows Williams and does not cover short-term medical conditions. The court, however, disagreed, tersely stating:

The Supreme Court of Ohio repeatedly has held courts considering disability discrimination claims under [Ohio law] may look to case law and regulations interpreting the ADA for guidance. The statutory definitions of “disability” under federal and Ohio law are nearly identical, and neither definition includes the temporal limitation Williams endorsed and Congress rejected.... I conclude Ohio courts no longer would apply the Williams temporary/permanent distinction Congress rejected, and that the temporal duration of Welch’s condition would not disqualify that condition as a disability under the meaning of [Ohio’s disability discrimination statute].

In other words, at least according to this court, Ohio courts follow the ADAAA in applying and interpreting Ohio’s disability discrimination statute. While the courts have yet to flush out this issue, employers should not hold out hope that Ohio courts will apply Ohio’s disability-discrimination protections more liberally than the ADAAA.

Instead of focusing on whether an employee is “disabled” under the ADA or its Ohio counterpart, employer should focus on reasonable accommodations and engaging employees in the interactive process. The distinction between who is (or is not) disabled is a legal issue to be worked out in costly and time consuming litigation. Attempting to accommodate a disabled employee is an issue to be worked out in the workplace in collaboration with the employee. I’ll let you decide which is the path of lease resistance.

WIRTW #288 (the “words of wisdom” edition)

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

Discrimination

• Top 5 tips for employers when managing pregnant employees — from Employment Intelligence
• Thou Shalt Not Retaliate Against Thine Employees—Ever!! — from The Emplawyerologist
• Obesity is Now a “Disease,” AMA says; What’s That Mean for HR? — from HR Gazette
• EEOC Commissioner Feldblum provides answers on obesity as a disability — from Eric Meyer’s The Employer Handbook Blog
• 7th Circuit embraces “no jerks” rule after mediation meltdown — from Work Matters
• Can The EEOC Troll For Plaintiffs By Sending A Blast Email To Business Email Addresses? — from Workplace Class Action Litigation
• 6 Ways To Prove You’re A Victim Of Age Discrimination — from Donna Ballman’s from Screw You Guys, I’m Going Home
• Employer not liable for shift leader’s bad acts — from EmployerLINC
• Retaliation is Reality TV — from EntertainHR
• What Happens AFTER a Remand from the Appellate Court? — from Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• Do you follow terminated employees on Twitter? — from The Tim Sackett Project
• Is BYOD Right For Your Workplace? — from Washington Workplace Law
• “Your cellphone: private or not?” — from How Appealing
• More Facebook Issues: This Time, It’s the Stored Communications Act — from Trade Secret / Noncompete Blog
• Employer Failure to Preserve Employee Social-Media Evidence — from Delaware Employment Law Blog
• Can You Say Discrimination? 28% of Recruiters React Negatively to Religious Posts/Tweets — from WinWinHR

HR & Employee Relations

• What to expect when you return to work — from Evil HR Lady, Suzanne Lucas
• Well, That Stinks: Dealing With Smelly Co-workers — from Workplace Diva
• You Say Let’s Talk Severance/Your Employer Hears I Quit (Or, Employees Are From Pluto, Employers Are From Uranus) — from Workplace Fairness

Wage & Hour

• Dear Evil Skippy: My Employee Was Out Shopping When She Was Supposed To Be On Medical Leave — from Evil Skippy at Work
• Does employee use of DOL “timesheet” app mean we can’t ban cellphones? — from Business Management Daily
• “Protected Activity” No Shield for Insubordination — from Lawffice Space
• What Pink Floyd Can Teach Employers about FMLA: Enforce Call-In Procedures and Insist Upon Facts Supporting Need for Leave — from Jeff Nowak’s FMLA Insights

Bathroom breaks do not equal breaks in pay

Yesterday’s post on OSHA’s bathroom rules generated an interesting reader question: can an employer deduct bathroom time from an employee’s pay?

The answer is no. Under the FLSA, “Rest periods of short duration, running from 5 minutes to about 20 minutes … must be counted as hours worked.” The Department of Labor includes “restroom breaks” as an example of these short-duration rest period for which an employer must pay its employees.

Thus, failing to pay your employees for time spent taking care of their personal business will subject you to a claim for unpaid wages.

Moreover, if the employees are exempt, pay deductions will also jeopardize their exempt status. You are required to pay exempt employees a weekly salary. Taking short-time deductions from an employee’s pay treat them like hourly employees, which, in turn, destroys the exemption for that job class.

In addition to these legal reasons to pay your employees for bathroom time, there is also a good practical reason. Treating your employees like tagged wildlife—tracking and recording their every move within the workplace—will create an work environment of distrust and apathy. Instead, you should treat all employees like professionals, and address performance-based issues as they arise. Is an employee failing to produce because he or she is spending too much time in the bathroom (or taking smoking breaks, or hanging around the coffee machine, or looking at Facebook, etc.)? Then address the performance issue. Is there a medical reason for which the employee needs a reasonable accommodation? Is the employee not busy enough and is looking for other way to fill time? Or is the employee a slacker that needs counseling, and if necessary, discipline?

Address the underlying performance issue on an employee-by-employee basis; avoid implementing company-wide edicts that will alienate the majority of your employees.

When you gotta go, you gotta go: The right to workplace bathroom breaks

Do you know that OSHA protects the right of employees to go to the bathroom? OSHA’s sanitation standard states:

Toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment.

The OSHA standard tells you everything you would ever want to know about workplace bathroom facilities, including the minimum required per number of employees. Thankfully, it also forbids employees from “consum[ing] food or beverages in a toilet room.” (just in case your employees like to snack while taking care of business).

It’s not enough that employers provide toilets; they also must provide access for employees to use them. According an April 6, 1998, Director’s memorandum to the OSHA Regional Administrators, this OSHA standard mandates that “employers allow employees prompt access to bathroom facilities,” and that “restrictions on access must be reasonable, and may not cause extended delays.” Another issues to keep in mind when dealing with bathroom breaks is that the ADA might require extended or more frequent breaks as a reasonable accommodation.

What do “reasonable on restrictions on access” look like? Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13) provides an answer. Plastipak terminated Mark Zwiebel, a production-line operator, for leaving his machine three times in one shift, which included once to use the bathroom.

Zwiebel claimed that his termination wrongfully violated the public policy embodied in OSHA’s restroom standard. The court of appeals disagreed:

While there is a clear public policy in favor of allowing employees access to workplace restrooms, it does not support the proposition that employees may leave their tasks or stations at any time without responsibly making sure that production is not jeopardized. In recognition of an employer’s legitimate interest in avoiding disruptions, there is also a clear public policy in favor of allowing reasonable restrictions on employees’ access to the restrooms.

Thus, the employee lost his wrongful discharge claim because his breaks unreasonably interfered with production. Going to the bathroom is one thing—abandoning one’s job is another.

Nevertheless, employers shouldn’t be the potty police. When an employee has to go, an employee has to go. Unless an employee seems to abusing bathroom rights, or, like in Zwiebel, the breaks interfere with performance or production, let employees be.

Lies, untruths, and protected concerted activity

Consider the following two posts, each made by an employee on his respective personal Facebook page, during non-working time.

• Commenting on the Facebook post by another employee posting about her termination for commenting to a patient about the condition of the employer’s vehicles, William Norvell posted the following: “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
• Michael Rice posted the following: “Hey everybody!!!!! Im [f****n] broke down in the same [s***] I was broke in last week because they don’t wantna buy new [s***]!!!! Cha Chinnngggggg chinnng-at Sheetz Convenience Store.”

In Butler Medical Transport (9/4/13) [pdf], an NLRB Administrative Law Judge concluded that Norvell’s post was protected concerted activity, while Rice’s post was not.

Norvell’s Facebook posts … was advising … a fellow employee to obtain an attorney/and or contact the Labor Board. What I find particularly important is that Norvell was responding to a post in which Zalewski stated she had been terminated for commenting to a patient about the condition of Respondent’s vehicles. The condition of Respondent’s vehicles was a matter of mutual concern to Respondent’s employees…. Thus, I find his post to be protected….

Respondent’s Chief Operating Officer … testified without contradiction that he reviewed Respondent’s maintenance records and determined that Rice’s vehicle had not broken down when he made this post…. As a result I conclude on the basis of Respondent’s uncontradicted testimony that the allegations made in his Facebook post were maliciously untrue and made with the knowledge that they were false.

Thus, the employer’s termination of Norvell was illegal, while its termination of Rice was perfectly lawful.

What does this case teach us? That there is a line between protected complaining and unprotected lying. Both employees posted about the condition of their employer’s work vehicles. The ALJ protected Norvell’s post because he was voicing a legitimate concern for a coworker, but failed to protect Rice’s post because he was caught lying about his vehicle breaking down. Thus, despite the belief of some that the NLRB is pushing the bounds of what qualifies as protected concerted activity vis-à-vis social media, one universal truth remains the same—liars do not win cases.

Hat tip to Molly DiBianca at her Delaware Employment Law Blog.

photo credit: Express Monorail via photopin cc

Failing to communicate with disabled employees is an easy way to buy an ADA lawsuit

Two ADA lawsuits filed by the EEOC over the past two weeks illustrate the risk that employers take when they fail to talk to employees about possible accommodations.

• The EEOC brought suit against Kmart, claiming that the retailer refused to consider alternate per-employment drug testing other than urinalysis for an applicant with kidney issues.
• The EEOC also brought suit against an Arkansas car dealer that declined a salesperson the use of a golf cart following spinal surgery. 

In both instances, the EEOC’s press releases make it clear that part of each employer’s violation was the employer’s failure to “engage in any discussions … about the suggested accommodations.”

The ADA does not guarantee an employee his or her preferred accommodation. It only guarantees a reasonable accommodation. The statute does guarantee, however, that employers engage disabled employees in an interactive process to determine the appropriate reasonable accommodation (if any).

If an employer dismisses an individual’s accommodation request outright, it will be difficult, if not impossible, for that employer to show that it engaged in the required interactive process. In that case, even if the employee’s request is absurd, burdensome, or otherwise unreasonable, it is likely that the employer nevertheless violated the ADA.

Communication between an employer and a disabled employee is the key to avoiding problems under the ADA. Do not commit the cardinal ADA sin of having a failure to communicate.

WIRTW #287 (the “save me, San Francisco, part 2” edition)

Cable car rides, hiking and biking to and over the Golden Gate Bridge, sailing the harbor, reuniting with my college roommate, the “Full House” house, hugging a giant redwood tree in Muir Woods, scenic drives with the top down, and lots of great food and wine. All in all, I’d say my four days in San Francisco and Napa was a huge success.

Huge props to Napa’s Kuleto Estate (the most beautiful winery you’ll ever see — the view is the bottom left below) and Frog’s Leap for their tasty wines. Too bad I had to return to reality this week.

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

Discrimination

• No Ifs, Ands, or Buts: “But For” Standard Requires New Trial, Court Rules — from Dan Schwartz’s Connecticut Employment Law Blog
• Boston Globe tackles attractiveness discrimination — from Walter Olson’s Overlawyered
• Big Red and Fried Chicken: Dallas Law Firm Sued for Discrimination — from Texas Employer Handbook
• Employers beware: You are liable for discrimination on the part of your staffing agencies — from Employment Law Bits
• 70% of Sexually Harassed Workers Say They Didn't Report it to Their Employers — from Wisconsin Employment & Labor Law Blog
• EEOC Charge Handling Process — from Employment & the Law

Social Media & Workplace Technology

• Too Creepy to Win: Employer Access to Employee Email — from Molly DiBianca’s Delaware Employment Law Blog
• NJ passes a business-friendly workplace social media privacy law — from Eric Meyer’s The Employer Handbook Blog
• Social Media is Paralyzing HR — from HR Examiner with John Sumser
• Who is Watching You When You BYOD? — from netWORKed Lawyers

HR & Employee Relations

• How Much Employee Turnover Really Costs You — from Evil HR Lady, Suzanne Lucas
• Handbook essentials: Auditing your policies the right way — from HR Gazette
• Does Your Employment Application Need To Be Updated? — from Employment Essentials
• How long do I have to keep HR records? — from Mike Haberman’s Omega HR Solutions
• What if Ryan Braun Was an “At Will” Employee? — from Wisconsin Employer Lawyer Blog

Wage & Hour

• What Pink Floyd Can Teach Employers about FMLA: Enforce Call-In Procedures and Insist Upon Facts Supporting Need for Leave — from Jeff Nowak’s FMLA Insights
• IRS Issues DOMA Guidance — from Employer’s Law Blog
• Shouldn’t the White House Be Paying Its Interns, Too? — from TLNT
• New York Times Op-Ed on Future of FLSA: A Provocative Read — from Employment Lawyer Blog

Labor Relations

• NLRB app review: Not perfect, but not half bad — from Robin Shea’s Employment and Labor Insider
• Are Employers Listening? Twitter Hash Tags in Support of Raising #MinimumWage — from Blogging4Jobs
• Is “Management Rights” an Oxymoron? — from We Know Next
• Labor and Obamacare — from Workplace Prof Blog
• A Labor Day Present from the NLRB — from i-Sight Investigation Software Blog

Big verdict underscores danger of recording devices in the workplace

A couple of years ago, I asked the following question: Are your employees recording you? In that post, I discussed an ABC News story, which noted that employees are using their smartphones to digitally record workplace events to gather evidence for future discrimination lawsuits.

Yesterday, news broke of a $280,000 verdict against a New York non-profit in a racial harassment case, in which the African-American plaintiff claimed that her boss, also African-American, called her a n****r. Her evidence? A four-minute audio recording the employee surreptitiously made on her iPhone. (If you’re curious, you can listen to some of audio on CNN.com).

With the proliferation of iPhones and Androids, most employees have a high-tech, high-clarity recording device in their pockets. How do you protect your business against the possibility of employees using these devices to gather damaging evidence against you?

1. If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy? Unless, of course, the NLRB gets its way and renders these policies per se illegal.

2. If the legality of workplace recording bans is up in the air, then you need to train your managers and supervisors to understand and assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down. You would be surprised how many plaintiffs keep copious, contemporaneous journals of the goings-on in the workplace. Managers and supervisors need to be vigilant in making sure that they do not say anything that could come back and bite your company in later litigation.

Or, just use the cone of silence for all workplace conversations.

More companies offer pet insurance as an employee benefit

We love our pets. This year, it is estimated that we will spend more than $55 billion on them. More than $14 billion of that total will be for veterinary care alone. Vet bills are expensive, and often unplanned and unbudgeted. Given our emotional attachment to our pets, we pay them, regardless of the cost. To mitigate the unexpected nature of these costs, after losing our last dog we opted for vet insurance for our current one.

Corporate America is following suit by beginning to offer pet insurance as an employee benefit.

According to Yahoo, one out of every three of the Fortune 500, plus 3,400 other smaller companies, now offer pet insurance as a benefit to their employees. Ohio employers offering this benefit include Procter & Gamble, Cliffs Natural Resources, and Quest Diagnostics.

Employee recruitment and retention is difficult. Companies struggle to locate, attract, and retain the best employees. Thinking outside the box with employee benefits is one way to attract, and keep, good employees.

FMLA now covers same-sex spouses (sort of)

Ever since the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor, there has been a lot of hand-wringing over what the decision actually means and its impact on our employment laws.

Windsor held that DOMA’s interpretation of “marriage” and “spouse” to apply only to heterosexual unions is unconstitutional. Because this decision is limited to one provision of one federal statute, many have wondered how it will be applied to private insurance plans, and to other federal statutes, such as the FMLA.

Last month, we started to get an answer.

The Department of Labor’s Wage and Hour Division amended its Fact Sheet 28F, entitled Qualifying Reasons for Leave under the Family and Medical Leave Act. As best as I can tell, the DOL amended the Fact Sheet to make one material change — to add “same-sex” marriage to the definition of spouse. Thus, according to the DOL’s definition of “spouse,” an otherwise eligible employee of a covered employer is now entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.

It is important to note that this Fact Sheet is not the law. It is not part of the text of the FMLA, or even part of the DOL’s regulatory interpretation. It is merely the agency’s informational interpretation of the statute in light of Windsor.

Because courts do not have to accept this Fact Sheet as gospel on the meaning of “spouse” under the FMLA, neither should employers. It is an important first step, however, in the evolution of this issue and the development of same-sex leave rights under the FMLA.

While this issue develops in the DOL and the courts, employers need to remember that the FMLA is a floor, not a ceiling. Employers are free to provide leave of absence rights greater than the baseline the FMLA requires. Thus, employers that want to extend leave of absence rights, and other rights (such as benefits or employment-discrimination protections), to same-sex couples, need not wait for a legislative blessing. They were free to do so before the Windsor decision, and remain free to do so now. This Fact Sheet, however, signals that we are thankfully moving down a path to where someday, thankfully, this issue will no longer be open to debate or discussion.

WIRTW #286 (the “save me, San Francisco” edition)

If money was endless, and I wouldn’t miss my kids, I’d never come back… Enjoy your holiday weekend. I know I’ll be enjoying mine.

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

Discrimination

• The Times Says “Most Lawyers” Won’t Take Age Discrimination Cases Anymore. Really? — from Dan Schwartz’s Connecticut Employment Law Blog
• Victimless Harassment? — from Workplace Prof Blog
• Paula Deen Case Ends with a Whimper — from Phil Miles’s Lawffice Space
• Employee Who Left Drug Rehab Not Entitled to ADA, FMLA Protections — from Smart HR Manager
• Louisiana Federal Court Denies EEOC’s Request To Put Punitive Damage Cart Before the Compensatory Damage Horse — from EEOC Year-End Countdown

Social Media & Workplace Technology

• Decision Shines Light on How Not to Investigate Employees Online — from Workplace Privacy Counsel
• Infographic Explores BYOD Pros and Cons — from HR Daily Advisor
• Three Important issues about your BYOD policy — from Mike Haberman’s Omega HR Solutions

HR & Employee Relations

• The WWE’s Triple H on Moving Into Management: Your Company and Wrestling are the Same — from The HR Capitalist
• John Deere in Trade Secrets Dispute with Former Factory General Manager — from Trade Secrets Blog
• Noncompete Agreements – More Harm than Good? — from Texas Employment Law Blog
• You Say Let’s Talk Severance/Your Employer Hears I Quit — from Donna Ballman’s Screw You Guys, I’m Going Home
• Sudden severance switch raises bias red flags — from Business Management Daily
• Employers Should Confront Threats Of Workplace Violence — from Washington Workplace Law
• Eradicating Workplace Bullying through Policies and Training — from i-Sight Investigation Software Blog

Wage & Hour

• Working for Nothing — from The New York Times
• DOL offers the definitive word on FMLA and same-sex marriage. Kinda sorta. — from Eric Meyer’s The Employer Handbook Blog
• Ohio Court Finds FMLA Is Subject to Arbitration Agreement — from Employment Essentials
• The Dangers Lurking in the Treacherous Waters of FMLA Intermittent Leave Strike Again — from Labor & Employment Law Perspectives

Labor Relations

• Twelve arrested in protest of Walmart firings and retaliation against activists — from Workplace Fairness
• NFLPA Goes To Bat For Aaron Hernandez's Unpaid Bonus — from Deadspin
• 4th Circuit Revives “Sham Litigation” Suit Against UFCW — from Labor Relations Today

Until next week…

Happy 10th Anniversary to my best friend

Ten years ago today, I married my best friend. To celebrate, enjoy this “greatest hit” from the archives — Accommodating religions starts at home (a love story).

Private eyes, they’re watching you…

No one likes the idea of a workplace in which managers keep a constant eye on employees. Workers find it creepy, and it’s not as if ambitious managers clawed their way up the ladder just to snoop on their underlings all day. Still, much of the surveillance now takes place electronically—in theory, freeing bosses to focus on other matters while monitoring software keeps everyone in line. So office spying isn’t going away.

So says this article on Businessweek.com, which nevertheless concludes that “electronic surveillance in the workplace is strikingly effective,” citing a survey [pdf] jointly conducted by professors at Washington University, BYU, and MIT.

I’m pretty sure, however, the type of workplace surveillance noted in a lawsuit filed by the EEOC falls on the creepy side of the line, as opposed to the effective. From the EEOC’s press release:

According to the EEOC’s lawsuit, between March and July 2010, Davis Typewriter Company’s operations manager commandeered the company’s security camera system to stream hours of footage of former employee Tracey Kelley’s breasts and body onto his office computer.

Surveillance and privacy have been hot topics of discussion of late. How you handle these issues in your workplace will depend, in large part, on how you want your employees to perceive  you as an employer—as a partner in trust, or as a distrustful watchdog.

Rather than watching everyone, the more prudent course of action is only to watch when an employee gives you a reason to do so. Do you have reason to believe an employee is stealing from you? Then watch that employee. Do you think an employee is fraudulently using FMLA leave? Then watch that employees. Do you believe an employee is leaking secrets to a competitor? Then watch that employee.

To watch everyone, however, without reason, leads to “distrust, conformity, and mediocrity,” three traits to which you should not want your employees to strive, and which will not help you run a successful business.

Life imitating art? Pregnant and fired — when will employers learn?

The Ohio Chamber of Commerce brings us this funny video about how not to fire pregnant employee:

Sadly, life sometimes imitates art.

Last week, the EEOC announced that it had sued a Mississippi hotel operator for … you guessed it … pregnancy discrimination:

According to the EEOC’s suit, Te’Shawn Harmon informed her manager of her pregnancy on her first day of work.  That evening, the manager terminated Harmon and replaced her with a non-pregnant employee.

Ugh. Some call it stupidity. I like to think of it as job security.

Litigation publicity as an adverse action for retaliation

Ray v. Ropes & Gray LLP [D. Mass. 8/16/13) [pdf] teaches a valuable lesson about what can go wrong when a dispute between an employer and a former employee goes public.

John Ray is a former associate of Boston white-shoe law firm Ropes & Gray. When the firm passed him over for partner, he first filed an EEOC discrimination charge, and then a lawsuit, claiming that the firm had illegally passed him over for partner. After Ray leaked to a legal blog a copy of an EEOC probable-cause finding on his retaliation claim, the blog sought comment from Ropes & Gray. The firm responded by providing a copy of an earlier EEOC no-probable-cause finding—which the blog published, and which included details about Ray’s performance reviews and an internal investigation into Ray’s alleged criminal conduct while at the firm.

In the subsequent litigation, Ray claimed that the release of the EEOC’s no-probable-cause finding was a sufficient adverse action to support a claim for retaliation under Title VII. The district court agreed:

Title VII prohibits an employer from responding to protected activity by taking an action that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” The threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.

On her Employment & Labor Insider blog, my friend, Robin Shea, takes issue with this aspect of the decision.

I don’t consider it “retaliatory” for the firm to want to protect its reputation by releasing, in pure self-defense, a document that is a public record. Mr. Ray had a right to file a charge and a lawsuit, but once he started bad-mouthing Ropes & Gray…, he opened a door that he shouldn’t have opened.

I agree with Robin. Ropes & Gray did not start the public war of words with its former employee. Ray took his issues public first. An employer should have the right to defend itself in the sphere of public opinion. If the employer fired the first publicity shot, I could better understand a finding of retaliation. Merely responding to a smear that someone else started, however, should not be viewed as an adverse action, no matter how wide Title VII’s retaliation lens might be.

Nevertheless, this case illustrates that retaliation comes in all shapes and sizes, and employers must act with extreme care when dealing with any employee who engaged in protected activity. If something such as responding to publicity started by a disgruntled ex-employee can constitute an adverse action, the scope of what acts fall outside Title VII’s definition of “adverse” is getting smaller and smaller, which makes these claims all the more dangerous for employers.

WIRTW #285 (the “back to school” edition)

(Yes, I’m “that” dad).

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

Discrimination

• Fox Sports 1 Launched With A Major Discrimination Lawsuit Problem — from Deadspin
• Fifth Circuit Reverses Summary Judgment in Win for Employees — from Texas Employment Law Blog
• Old Workers Rule! (Age Discrimination Drools) - Guest Post — from Screw You Guys, I’m Going Home
• “My Disability Made Me Do It,” Seems to Say The San Diego Mayor: Sexual Harassment vs. Disability Discrimination — from WinWinHR
• Paula Deen Ruling Reminds Us: Title VII Protects White Employees Who Are Discriminated Against for Their Association with Black Employees — from Suits by Suits
• Clearing up Sexual Harassment — from Mike Haberman’s Omega HR Solutions
• Another harassment myth, debunked: “If we don’t have a policy, we can’t get in trouble for violating it” — from Warren & Associates Blog
• EEOC Provides Guidance on when a “Partner” is an Employee — from Washington D.C. Employment Law Update

Social Media & Workplace Technology

• Stop Asking for Candidate Facebook Passwords — from Fistful of Talent
• Four easy ways to break the law by viewing an employee’s Facebook posts — from Eric Meyer’s Employer Handbook Blog
• Doctor sued for $1.5 million for allegedly photographing patient without consent and posting on Facebook — from Shear on Social Media Law

HR & Employee Relations

• 7 Lawsuit-Inviting Mistakes Managers Make — from i-Sight Investigation Software Blog
• 8 Things You Should Never Say in a Termination Meeting — from California Employment Law
• Where Can Employers Find “Beautiful” Employees? — from Phil Miles’s Lawffice Space
• How Should (and Shouldn’t) You Conduct a Workplace Investigation? — from The Emplawyerologist

Wage & Hour

• For Same-Sex Couples: If You’re Married in CT, You Have a ‘Spouse’ Under FMLA — from Dan Schwartz’s Connecticut Employment Law Blog
• DOL Updates Guidance on FMLA and Same-Sex Marriage — from Jeff Nowak’s FMLA Insights  
• FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics — from Stoel Rives World of Employment
• Unpaid Volunteer Files Unpaid Wage Lawsuit Against MLB — from Overtime Lawyer Blog
• Check Your Math! Fluctuating Workweek Damage Calculation Approved Yet Again — from The Wage and Hour Litigation Blog
• Affordable day care? One lawyer earns 50 cents after footing the child-care bill — from ABA Journal Daily News
• Head’s Up For Employers: (New) Confusion over Affordable Care Act Delays — from Employment Matters Blog
• The Common Sense Solution to Unpaid Internships — from The HR Capitalist, Kris Dunn

Labor Relations

• Why the NLRB Is Its Own Worst Enemy — from Molly DiBianca’s Delaware Employment Law Blog
• Overtaken by Events — from Labor Relations Update
• Employer waived issue of NLRB’s lack of quorum — from Ross Runkel Report
• Confidentiality policies: The NLRB weighs in — from HR Cafe+

Relying on stereotypes will put a target on your back

According to The Huffington Post, a group of Hispanic employees is suing Target for national origin discrimination. Their evidence—an internal memo that included the following “Multi-Cultural Tips” for its managers:

a. Food: not everyone eats tacos and burritos;

b. Music: not everyone dances to salsa;

c. Dress: not everyone wears a sombrero;

d. Mexicans (lower education level, some may be undocumented);

e. Cubans (Political refugees, legal status, higher education level); and

f. They may say ‘OK, OK’ and pretend to understand, when they do not, just to save face.

That’s a pretty good smoking gun, if you ask me.

It served as a good reminder about the dangers of stereotypes in the workplace.

There is no hiding that stereotypes—both positive and negative—exist. To some degree we all harbor them (and anyone who tells you differently is lying to you and themselves). The better job you do of insulating your business’s personnel decisions from stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

This post originally appeared on The Legal Workplace Blog.

Where’s Waldo? She’s teaching you a lesson on the high cost of sexual harassment

While employed as an electrical line worker for Consumers Energy Company from 2001 through 2005, Theresa Waldo claimed that she suffered the following incidents of sexual harassment, about which she complained to her supervisor, union rep, and HR manager, each of whom allegedly ignored her:

1. She was repeatedly called derogatory and demeaning names, such as “bitch” and “wench.”
2. Coworkers threw her purse out of a work truck and into the dirt, telling her that “there were no purses allowed in these trucks.” When she responded by carrying a smaller purse in her pocket, she was called a “dike.”
3. Her coworkers refused to let her travel to a bathroom, instead telling her that if she “wanted to work a man’s job,” she had “to pee like a man.”
4. Coworkers locked her in a porta-potty with duct tape.
5. Coworkers isolated her at work sites by excluding her from lunch trips and forcing her to walk instead of riding in trucks with the male employees.
6. There were sexually explicit pictures on the work trucks.

Based on the foregoing, a jury awarded Waldo $400,000 in compensatory damages and $7,500,000 in punitive damages on her sexual harassment claim. Applying Title VII’s damage caps, the trial judge reduced those awards to a combined $300,000. In addition to the capped damage award, the judge also awarded Waldo $684,506 in attorney’s fees, which the 6th Circuit affirmed.

Who wins these cases? According to Judge Sutton’s dissenting opinion, it’s the lawyers, not the litigants:

I join all sections of the majority’s opinion save one: its decision to uphold the district court’s award of $684,506 in attorney’s fees—all but $1,000 of the fees requested by Waldo’s attorney without any additional reduction for time or rate, including for all work incurred to lose the first jury trial, all work incurred to lose six of the seven claims (four of them state law claims) and for all work incurred to win $300,000 in the second jury trial. One can be forgiven for thinking that Waldo’s two attorneys, not Waldo, were the true winners. This is good work if you can get it.

Harassment takes a toll. It exactly a high emotional cost on the victim. It exacts a steep legal cost on the company defending a lawsuit that can be salacious and unpopular. Yet, as this case illustrates, the people that often win are the lawyers. It may sound odd for a lawyer to argue against litigation. Yet, as I’ve heard one of my partners espouse more than once, “When you’re litigating you’re losing.” This case is the perfect example. From start to finish, Theresa Waldo spent more than 8 years of her life (from June 2005 until August 2013) litigating. For that time and aggravation, not to mention the on-the-job harassment that she suffered, she was awarded $300,000. Her lawyers, on the other hand, pocketed more than double that amount.

Who really won, and what does this case teach us about the benefit of evaluating the risk of cases and resolving those that have merit.

Why you should take all harassment complaints seriously

Today I am going to discuss two racial harassment cases decided by the same court, on the same day, but with different results.

• In Paasewe v. Action Group, Inc. (6th Cir. 7/17/13), the plaintiff alleged that he was called “boy,” threatened because he wore a Barack Obama t-shirt, and was demeaned because he was a black man driving a nice car. The court concluded that a jury question existed on whether Paasewe’s allegations gave rise to a racially hostile work environment.
  
• In Nicholson v. City of Clarksville (6th Cir. 7/17/13), the plaintiff alleged that co-workers repeated used the n-word and other offensive phrases to describe African-Americans, in addition to incidents of profanity directed at African-American employees. The court concluded that no jury could reasonably concluded that Nicholson had been subjected to a racially hostile work environment, and affirmed the trial court’s dismissal of his harassment claim.

You can read each of these cases for yourself, and come up with good arguments for, and against, the employer in each. The point I want to make, however, runs deeper than any analysis of the legal merits (or lack thereof) of each case. Deciding whether a workplace is sufficiently “hostile” to support a harassment claim under the civil rights laws is highly subjective. One judge’s or jury’s illegal hostile environment is another’s workplace triviality.
An employer’s primary goal should not be to win these cases on their merits when filed, but to prevent them from being filed in the first place. How does a business accomplish this goal?

• Have a written anti-harassment policy.
• Provide periodic anti-harassment training.
• Foster open channels of communication between employees and management.
• Take all workplace complaints seriously by investigating each (no matter how trivial it may seem), and by imposing effective remedial action if necessary.
• Maintain a diverse workforce.

Cherry picking only those complaints that you believe are serious or legitimate opens up to scrutiny those complaints that are buried or ignored, which, in the hands of the right plaintiff could prove to be an expensive omission.

How to draft an enforceable noncompete agreement in 5 steps

According to the Wall Street Journal, litigation over noncompete agreements is rising:

More employers are requiring their new workers to sign “noncompete” agreements, which they say are needed to prevent insiders from taking trade secrets, business relationships or customer data to competing firms when they leave.… 

The number of published U.S. court decisions involving noncompete agreements rose 61% since 2002, to 760 cases last year…. Since most cases are settled out of court and most opinions aren’t reported, that tally is likely low.

Yet, having an employee sign a noncompete agreement and being able to enforce that agreement against that employee are two completely different animals. In today’s job market, courts have become increasingly skeptical of agreements that limit an employee’s ability to find employment.

Thus, what steps can you take to maximize your ability to enforce the agreements that your employees sign? Here are 5 practical steps.

1. Pick the right type of covenant. What type of competition are you trying to protect? Are you trying to protect your company’s most guarded secrets from you biggest competitors, or are you trying to prevent a salesperson from cherry picking your customers? If all you need is an agreement prohibiting an employee from soliciting customers, clients, or vendors, then limit the agreement to protect that interest. Putting it another way, if all you need is a no-solicitation agreement to protect your legitimate interests, then only require such an agreement as a condition of employment. Do not cast too wide a net, or a court will either narrow it for you, or, worse, toss out the entire out to sea.

2. Know your jurisdiction. Different states have different laws pertaining to the enforceability of noncompete agreements. California, for example, will only enforce such agreements in very limited circumstances, while Ohio will enforce any agreement reasonable in time, geographical scope, and the legitimate interest you seek to protect. Picking the right state’s law to apply to your agreement could make the difference between and enforceable contract and a worthless piece of paper.

3. Provide consideration. An employee must receive something of value in exchange for giving up the right to compete. If the covenant is signed at the beginning of employment, the hiring itself usually meets this requirement. For current employees, though, what qualifies as “value” varies from state to state. In Ohio, for example, a keeping an at-will employee employed is enough. Other states, however, require something of monetary value, such as a raise, bonus, or extra vacation days.

4. Enforce, enforce, enforce. Do not be selective in enforcing your contracts. Suppose Employee A and Employee B are subject to the same noncompete covenants. Employee A quits and works for a competitor, and you ignore it. If Employee B does the same, but you sue to enforce that noncompete, you will have a hard time proving the legitimacy of the business interest you are seeking to protect in light of the fact that you chose to ignore the same as to Employee A.

5. Ask for help. The Internet is a wonderful tool. A wealth of information is a world away. In the click of a mouse you can learn who led the National League in stolen bases in 1971 (it’s Lou Brock), or you can find examples of noncompete agreements. Be wary, though, of using these examples in your business without first having your counsel vet them. As noted above, laws vary from state to state. They also change from year to year as new statutes are passed, old statutes are amended, and court pass judgment on various legal issues. No matter the quality of the appearance of the form you locate or the trustworthiness of site on which you find it, you have no idea when it was drafted, which state’s law under which it was drafted to comply, or if counsel ever reviewed it. There is nothing wrong with a little DIY legal work on the Internet. There is a lot wrong, however, with all your legal work being DIY. If you don’t want to pay your lawyer to start from scratch, at least let him or her review your forms and offer an opinion on their viability in your specific jurisdiction.

These five steps aren’t the only considerations in drafting a strong, enforceable noncompete agreement. But, they are a good foundation to placing you in the best position to protect your business from an employee trying to work for a competitor.

WIRTW #284 (the “help if you can” edition)

I’ve never used this space to ask anyone to donate to anything. This week is an exception.

My niece had a scare. After months of knee pain, doctors found a 6 cm mass on her tibia. We feared the worst. After Wednesday’s surgery we received the best possible news—a benign giant cell tumor that had eaten away her leg until her tibia resembled Swiss cheese. She is on the road to recovery, which includes long and difficult rehab coupled with the risk that her repaired and rebuilt leg could fail.

She also faces crippling out-of-pocket medical expenses that will saddle her family for years, which includes my 1- and 2-year-old great-nieces, and her husband, a veterinary resident who’s taken an unpaid leave of absence to be with his family.

If you want to read the entire story, jump over to EncouragingErin.com, a blog/donation site we established to help my niece and her family. All help, thoughts, and words of encouragement are appreciated. Thanks for reading.

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

Discrimination

• “Race-based claims thrown out in Paula Deen lawsuit” — from Walter Olson’s Overlawyered
• How The EEOC’S Scrutiny Of Background Check Practices Has Employers Between A Rock & A Hard Place — from Employment Essentials
• Interactive Process is Two-Way Street — from Dan Schwartz’s Connecticut Employment Law Blog
• The EEOC Is Now Officially An Employee Side Employment Law Firm — from The Labor and Employment Law Blog
• NFL player’s racist comment sparks debate — from John Phillips at HR Hero Line (welcome back old friend)
• Go Figure: The EEOC Clears Itself on Discrimination Charges — from Labor & Employment Law Perspectives
• Are EEOC Guidelines for Employment Background Checks Still Confusing? — from employeescreenIQ Blog
• When it comes to ADA accommodations, reasonable is good enough — from Eric Meyer’s The Employer Handbook Blog

Social Media & Workplace Technology

• Kansas Court Mitigates the Risks of a BYOD Workforce — from Molly DiBianca’s Delaware Employment Law Blog
• Online in 60 seconds — from SocialFish
• 72% of Adults Online (Your Employees) Use Social Networking Sites — from EmployerBrief
• Legal implication for employers when employees download apps on work devices — from Employment Law Bits
• More than a third of Americans use Facebook every day — from The Verge
• HR: Corporate America’s social media cops — from Business Management Daily

HR & Employee Relations

• An Employee Says She's Being Sexually Harrassed. Now What? — from The Evil HR Lady, Suzanne Lucas, writing at Inc.com
• Who Should Conduct Your Workplace Investigation and Why Does it Matter? — from The Emplawyerologist
• Is it Harassment or Just Questionable Behavior in the Workplace? — from i-Sight Investigation Software Blog
• Most Embarrassing Termination Ever — from The Tim Sackett Project
• “Hell or High Water” or Fraud: Court Rules That Supermarket Scion Was Entitled To ‎Post-Termination Benefits Despite Misconduct ‎— from Suits by Suits
• How to Bust the Most Common Age-Related Stereotypes at Work — from Lifehacker
• Are you prepared for very old workers? — from Mike Haberman’s Omega HR Solutions
• Working Fathers Need Balance, Too — from Harvard Business Review
• The One Sentence HR Handbook — from Fistful of Talent
• Have you taken a personality test for a job or any other reason? If so, was it a useful tool? — from ABA Journal Daily News

Wage & Hour

• Take 2: Does Annual FMLA Certification First Require an Employee's Absence? — from Jeff Nowak’s FMLA Insights
• DOL Recognizes Same Sex Marriage for FMLA — from Phil Miles’s Lawffice Space
• Independent contractor’s email was key factor in finding he had apparent authority to bind principal — from Internet Cases

Labor Relations

• Text “FRONTGROUP” to … — from LaborPains.org
• Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use — from Ross Runkel Report
• NLRB Judge Says Employer’s Baseball Cap Logo Restriction Violates Employees’ Section 7 Rights — from Labor & Collective Bargaining

Clearing up some misconceptions on social media and privacy

“Bosses force woman to show Facebook page to prove she's not lying,” reads this headline on the venerable technology website, CNET. According to the article, the New Zealand Employment Relations Authority has required a fired flight attendant to provide her ex-employer with access to her Facebook page to prove, or disprove, the fact that her use of sick leave was legitimate.

What follows are three incorrect statements in an attempt to deconstruct this issue:

1. “If such precedents continue to be set, everything that is digitally accessible may become evidence if an aggressive litigator decides that it might be useful.” In reality, the precedents are wildly inconsistent. Courts across the country are weighing the privacy rights of a litigant versus the relevance of the requested social media information. In this case, the judge favored the latter. A different judge could have reached a different result. One case, however, cannot be read as an indictment of the erosion of personal privacy rights.
   
2. “Employers all over the world have begun to demand Facebook access to private accounts—some at the job interview stage.” This statement is not one of fact, but instead one of hyperbolic opinion. In reality, my research reveals that very few employers engage in this practice. Don’t just take my word for it. Also take the word of an Australian law firm that conducted a similar survey, with similar results.
   
3. “Six U.S. states have now deemed it illegal for employers to do this.” In gross over-reaction to this issue, it’s sadly 11 states that have banned employers from requiring access to an employee’s social media account. Regardless, these laws do not prohibit a judge from providing access as part of the discovery process.

Employers are not requiring employees to turn over access to their personal social media pages. Court sometimes require litigants to turn over social media information when it might be helpful to prove or disprove a claim. End of story.

6th Circuit permits employers to enforce reasonable call-in rules for FMLA leave

In Cavin v. Honda of America Manufacturing, he 6th Circuit held that “the FMLA does not permit an employer to limit his employee’s FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.” Six years later, however, the Department of Labor amended the key FMLA regulation that underpinned the Cavin decision. 

That regulation, 29 C.F.R. § 825.302(d) now reads as follows:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.… Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

So, what happens now when an employer has a call-in rule that is more strict than the FMLA? According to White v. Dana Light Axle Manuf. (6th Cir. 8/7/13) [pdf]:

An employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements.

What does this case mean for you? It means that you should consider implementing reasonable call-in requirements to help curb FMLA abuse and over-use. If the statute allows you to take advantage of these policies, why not help level the playing field against a statute that, more often than not, favors the employee.

Federal court slams the door on EEOC’s criminal background check lawsuit

In EEOC v. Freeman (D. Md. 8/9/13) [pdf], the U.S. District Court for the District of Maryland dismissed a race discrimination lawsuit filed by the EEOC. Consistent with its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII, the EEOC alleged that Freeman’s criminal background checks on all job applicants violated Title VII by disparately impacting African-American job seekers.

In dismissing the lawsuit, the Court focused on the factual failings of the EEOC’s statistical expert. Eric Meyer’s Employer Handbook Blog has the details of the Court’s opinion.

The opinion also provides the most scathing indictment to date of the EEOC’s position on the use of criminal background checks by employers. Despite its length, it’s worth reprinting in its entirety.

For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable….

The present case is only one of a series of actions recently brought by the EEOC against employers who rely on criminal background and/or credit history checks in making hiring decisions. For example, in two recent complaints filed against discount retailer Dollar General Corp. and car manufacturer BMW, the EEOC claimed that those employers improperly used criminal background checks to bar potential employees, resulting in a disparate impact on African-American applicants….

Indeed, the higher incarceration rate [of African-Americans than Caucasians] might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90 percent of its positions….

By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

This case is an important first step towards a reasoned and rational understanding of the role of criminal background checks for employers. The Freeman case, however, will not be the final word. District courts nationwide will face this issue and, depending on the judge hearing the case, will agree or disagree with the EEOC’s hard-line position. It will then be up to the appellate courts, and, hopefully, the Supreme Court, to have the final say.

In the meantime, employers need to understand that criminal background checks are the EEOC’s hit list. Regardless of how this issue ultimately plays out, using a conviction record as a disqualifying factor for employment without engaging in the individualized inquiry required by the EEOC’s Enforcement Guidance will raise the EEOC’s ire and could subject an employer to an enforcement lawsuit.

I am hopeful that, in the end, common sense will prevail and rescue employers from the Hobson’s choice recognized by the Freeman court. Until then, these practices remain risky. Employers will have to balance the risk of an EEOC enforcement action against the benefit to be gained from the access to and use of criminal conviction records in hiring and employment.