From the archives: wage-and-hour audits

Today is Presidents’ Day, which means that many are not at work. I am not one of those many. I’m in the office today, preparing for a client’s wage-and-hour audit, which the Department of Labor will be conducting tomorrow.

I noticed that I haven’t written in some time about these audits. So, in lieu of fresh content, today I’m digging deep into the archives (all the way back to December 2007), to re-share Department of Labor investigations highlight important wage and hour compliance issues.

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The Cleveland Plain Dealer reports that the U.S. Department of Labor has found that housekeepers working in Ohio hotels are routinely underpaid. Indeed, in wage and hour audits conducted in 2007, the DOL reports that only 28% were in full compliance with federal wage and hour laws. As a result, it has promised “a ‘significant’ number of hotel investigations in 2008 and reinvestigations of some of the employers it already found in violation of wage requirements,” according to the PD.

Speaking from experience, the DOL audits companies in one of three instances: randomly (which seldom happens), after receiving a complaint, or as part of a targeted initiative against a particular industry or class of businesses. These hotel investigations fall into the latter category.

If you find yourself being audited, the DOL will examine your wage and hour records for the past two years to ensure that all non-exempt employees have been paid at least minimum wage and overtime for all hours worked in excess of 40. It will also look at child labor issues if you employ any minors. The DOL may examine whether salaried employees are properly classified as exempt. Finally, it may interview employees to gather additional information. It will then make recommendations for changes, and try to reach a resolution as to any back overtime and wages. If the employer fails to cooperate, or is a repeat offender, it may request that the Solicitor General’s office file an enforcement action in federal district court.

There is no way to prevent an audit from occurring, but you should self-audit your company’s wage and hour practices to help get a clean bill of health if the DOL calls. Look at your personnel, payroll, and time records to make sure your are retaining everything the FLSA requires. Reevaluate positions and job descriptions for proper exemption classifications. It should go without saying that if you are not paying minimum wage, or overtime to non-exempt employees, start doing so immediately. With the new year quickly approaching, I’d like to see all businesses make a resolution to get their wage and hour practices in order during this year.

WIRTW #308 (the “Calling Dr. Love” edition)

Today is Valentine’s Day. People will send each other more than a billion cards. If some of those cards are sent in your workplace, you might want to read the following, from deep in the archives:

• Nothing can go wrong when employees date each other, right? 
• Patrice O’Neal on sexual harassment (NSFW)
• Can George Costanza sue for sexual harassment or retaliation?
• When office romances go bad
• Top 10 reasons not to date at work

You can also read the following, posted elsewhere this week:

• Love, Sex and Office Romance — from CostofWork
• Office Romances Rock If Your Workplace Is Like College — from Workplace Diva
• Should HR Prevent Office Romances? — from Talent Zoo
• Cupid’s Arrow Can Be Painful — from BusinessWest
• How To Have A Secret Office Romance — from Business Insider

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

Discrimination

• You, Biased? No, It’s Your Brain — from Workforce
• 50 Years Ago, The Civil Rights Act of 1964 Passes the House of Representatives — from Jottings By An Employer’s Lawyer
• The Civil Rights Act Was Not As Important As You Think — from New Republic
• New EEOC stats: Charges down, retaliation up — from Business Management Daily
• EEOC’s Lawsuit Challenging CVS Separation Agreements Is a Big Deal — from Dan Schwartz’s Connecticut Employment Law Blog
• What’s the best way to talk to pregnant employees? — from Warren & Associates Blog
• “Steering” Is 2014’s New Twist on Discrimination — from HR Daily Advisor
• Temporary disabilities and the ADA — from Understanding the Americans with Disabilities Act

Social Media & Workplace Technology

• Two-thirds of Americans now have smartphones — from Engadget Mobile
• Employees Won’t Stop Bringing Phones to Work, but That’s Not Necessarily Bad — from Mike Haberman’s Omega HR Solutions
• 3 Things to Consider Before Having A Bring Your Own Device Policy — from Blogging4Jobs
• Computer Fraud and Abuse Act claim dismissed where plaintiff failed to adequately plead loss or damage — from Internet Cases
• Delaware Supreme Court Rules On Admissibility of Facebook Evidence — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• In defense of work — from Robin Shea’s Employment and Labor Insider
• The high cost of turnover — from Evil HR Lady, Suzanne Lucas
• A Dose of Office Gossip May Help Your Group Run Smoothly — from Lifehacker
• Are you using the correct forms to conduct background checks? — from HR Hero Line
• How to spot a lying employee — from MonsterThinking
• Workplace Investigations – Dealing with the Aftermath (Part 2) — from WinWinHR
• Whole Foods Hit With FCRA Class Action For Background Checks — from employeescreenIQ Blog

Wage & Hour

• The FLSA Applies to Public Sector Employers, Too — from Pennsylvania Labor and Employment Blog
• Wage and Hour Snow Storms — from Jonathan Segal
• “I’m beat, time for my break!” Rest and Meal Periods under the FLSA. — from Michigan Employment Law
• Avis Loses De-Cert Motion In Shift Managers FLSA Collective Overtime Action — from Wage & Hour - Development & Highlights
• New bill in Congress will revamp FMLA to cover smaller employers — from Eric Meyer’s The Employer Handbook Blog
• Employment Law IQ: FMLA Interference – What Would You Do? Southwest Florida HR Law & Solutions
• FMLA 20-Year Anniversary: How Does Your Company Measure Up? — from In House

Labor Relations

• Player-union attempt gets under way — from ESPN
• NLRB and Wal-Mart Face Off Over Strikes — from Corporate Counsel
• The Obama NLRB and confidentiality rules — from Michigan Employment Law Connection
• Overview of Union Access Rights to Shopping Centers — from Matt Austin Labor Law

Until next week:

Does inevitable disclosure protect your company’s trade secrets? It depends.

The most straightforward manner in which to prevent a former employee from jumping ship to one of your competitors is to have the employee sign a non-competition agreement. Absent a written agreement by an employee not to compete, however, are you out of luck if you want to stop an key employee with knowledge of sensitive corporate information from competing? The answer depends on what state you are in, and, more specifically, that state’s view of the inevitable disclosure doctrine.

The inevitable disclosure doctrine is an off-shoot of PepsiCo, Inc. v. Redmond (7th Cir. 1995), which upheld a preliminary injunction against a former Pepsi general manager that prevented him working for Quaker Oats (the manufacturer of Gatorade). What makes the case unique and important is that Redmond never had a non-compete with Pepsi. Instead, the court upheld the injunction because Redmond had detailed and comprehensive knowledge of Pepsi’s trade secrets, such that it was inevitable that he would disclose Pepsi’s trade secrets to Quaker Oats through his employment in a substantially similar position.

In the nearly 20 years since the PepsiCo decision, courts have debated the applicability of the inevitable disclosure doctrine to stop an employee, without a non-competition agreement but with knowledge of trade secrets, to work for a competitor in a similar capacity.

In sum, the issue boils down to whether your state’s trade-secrets law prohibits threatened misappropriation of trade secrets in addition to actual misappropriation.

• Thus, in Lumenate Technologies, LP v. Integrated Data Storage, LLC (N.D. Ill. 11/11/13), the court permitted the plaintiff to make an inevitable disclosure argument based on the Illinois Trade Secrets Act’s prohibition against the threatened misappropriation of trade secrets.

• Meanwhile, in Exal Corp. v. Roeslein & Associates, Inc. (N.D. Ohio 12/27/13), the court dismissed the plaintiff’s claim under Ohio’s trade secret act. The court pointed out that Ohio’s statute specifically prohibits “actual or threatened misappropriation,” a threat means something more than mere speculation. The former employer must put forth evidence of a demonstrable risk of misappropriation. In Exal, this showing was lacking.

The lesson from this post isn’t really the differences in the application of the inevitable disclosure doctrine. Instead, consider this post a lesson on the importance of written agreements. If you have a written non-competition agreement, you need not worry about threatened versus actual misappropriation. More specifically, if you have employees who are privy to sensitive information, or who otherwise present a serious risk of competition, require a non-competition agreement as a condition of their employment. Otherwise, you are taking a huge risk with your trade secrets and other confidential information.

More on the EEOC’s position on retaliation in severance agreements: A proposed solution

Yesterday, I reported on a lawsuit the EEOC has filed, claiming that some fairly generic terms in an employee severance agreement constitute illegal retaliation. In EEOC v. CVS, the agency claims that an agreement that attempts to limit an employee’s communication with the EEOC unlawfully attempts to buy employee silence about potential violations of the law.

I try to shy away from hyperbole, but OH MY GOD, THIS CASE COULD BE RUINOUS!!!

When you compare the inoffensiveness of the provisions challenged in CVS to the hard-line position put forth by the EEOC, you begin to understand why this case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.

Employers settle lawsuits and pay employees severance in exchange for certainty. Employer don’t write checks to litigants (or potential litigants) out of the goodness of their hearts. They do so because they want to get rid of claims and potential claims. The provisions with which the EEOC has taken issue — a general release, a covenant not to sue, cooperation, confidentiality, non-disparagement, and the payment of attorneys’ fees upon a breach — are crucial for employers. You’d be hard pressed to find an agreement that does not contain some combination of most, if not all, of these provisions.

Yes, the anti-retaliation provisions of the employment discrimination laws prohibit employers from requiring that employees give up their statutory rights to file discrimination charges, cooperate in investigations, or provide information to the EEOC. But, the CVS agreement that the EEOC is challenging did not contain those requirements.

Instead, the challenged agreement expressly protected the employees’ statutory rights:

Moreover, nothing is intended to or shall interfere with Employee’s right to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, nor shall this Agreement prohibit Employee from cooperating with any such agency in its investigation. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any Released Claim brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

In re-reading the EEOC’s complaint, the agency seems to take issue with two key facets of the challenged agreement:

1. The carve-out existed as a “single, qualifying sentence” in the “Covenant Not to Sue” section of the Agreement.
2. The carve-out did not expressly touch all of the challenged provisions in the Agreement.

Don’t shred your settlement and severance agreements just yet. As a I promised yesterday, I have a potential solution. Modify your agreements to bolster and clarify the protected-activity carve-out. In a provision separate and distinct from the release, waiver, or covenant not to sue, consider something like the following (modeled on the provisions in CVS).

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws (including, but not limited to, Title VII, the ADA, the ADEA, GINA, USERRA, or their state or local counterparts) to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of the non-disparagement, confidentiality, or cooperation clauses of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

I cannot understate the potential significance of the EEOC’s position in CVS. This case bear monitoring, and I will continue to update you as the case proceeds. In the meantime, consider adopting changes to your stock separation and settlement agreements; the EEOC is definitely watching.

EEOC claims retaliation over garden-variety severance terms

The EEOC announced that it has filed a lawsuit against CVS, claiming that a severance agreement it provided to three employees unlawfully restricted their rights to file discrimination charges or communicate and cooperate with the EEOC.

The EEOC claims that “CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print.”

What was the “fine print” that caused the EEOC to sue this employer? The EEOC did not specify in its news release, but the complaint the EEOC filed  took issue with the following provisions:

1. A cooperation clause, which required the employees to notify CVS’s general counsel upon receipt of, among other things, an administrative complaint.

2. A non-disparagement clause, which prohibited the employees from making any statements that disparage or harm CVS’s reputation. (I told you I don’t like these provisions.)

3. A confidentiality clause, which prohibited the employee from disclosing any personnel information.

4. A general release, which included any claims of discrimination.

5. A covenant not to sue, which prohibited the employee from filing any complaints, actions, lawsuits, or proceedings against CVS, but which expressly carved out the employee’s right to participate in, or cooperate with, any state or federal discrimination proceeding or investigation.

6. An attorneys’ fees provision, which required the employee to reimburse CVS for its reasonable attorneys’ fees incurred as the result of a breach of the agreement by the employee.

According to EEOC Regional Attorney John Hendrickson, the lead litigator in the case:

Charges and communication with employees play a critical role in the EEOC’s enforcement process because they inform the agency of employer practices that might violate the law. For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make.

This case has the potential to be very significant, and warrants monitoring. Most (all?) of you reading this post have used agreements that contain language similar to each of the six issues the EEOC is challenging. If the EEOC is successful in this lawsuit, employers will have to reconsider key provisions in their severance and settlement agreements. Given that employers are paying ex-employees for certainty when an employee signs a release, this case has the potential to turn these agreements on their heads.

In tomorrow’s post, I will offer a potential solution for employer looking to maintain the vitality of a general release and covenant not to sue without walking into the EEOC’s enforcement crosshairs.

Another one bites the dust: NLRB invalidates confidentiality policy

If I’ve said it once, I’ve said it a thousand times — employers cannot maintain policies that restrict their employees’ ability to talk about how much they earn.

Thus, it shouldn’t surprise anyone that, in MCPc, Inc. (2/6/14) [pdf], the NLRB concluded that the following policy illegally restricted employees’ rights to engage in protected concerted activity:

Dissemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination.

As the NLRB pointed out, the standard isn’t whether the policy actually restricted employees from discussing wages or other terms and conditions of employment with their coworkers, but whether they would reasonably construe the policy to have that effect. Never mind that in MCPc, Inc., the employer fired an employee for discussing with co-workers staffing shortages that resulted from a perception of high executive salaries.

You can draft a confidentiality policy that will not run afoul of protected-concerted-activity rights under the NLRA; you just have to draft narrowly. Thus, limiting discussion of trade secrets and other confidential, proprietary information is just fine. Wages and other terms and conditions of employment, however, are off limits, which should be clear from the policy. And, of course, don’t fire an employee for talking about wages or working conditions. I wonder how the NLRB would have even learned about MCPc’s overly broad policy if the company hadn’t fired a worker for violating it?

WIRTW #307 (the “Piet Mondrian” edition)

Today’s theme is a lesson in minimalism.

Here’s what I read this week:

Discrimination

• Fired For Reporting Dollar Bill With Swastikas And Noose On A “Blackened” George Washington Leads To Jury Award — from Employment Discrimination Report
• Do Managers Have a Bias For Hiring Attractive People? — from TLNT
• Employee claims discrimination, then her friend gets fired. Is that retaliation? — from Eric Meyer’s The Employer Handbook Blog
• An Employee Took Documents from her Employer to Support her Discrimination Claim and You Won’t Believe what Happened Next — from Toil and Trouble
• If men and women work the same number of hours, what is so unfair? — from Evil HR Lady, Suzanne Lucas
• EEOC Seeks Reversal of “Cherry Picked” Decision Regarding Criminal and Credit Checks — from All in a Day’s Work
• Employee acts as own lawyer? You’ll need to be patient — from Business Management Daily

Social Media & Workplace Technology

• Pass Along to Your Employees: Passwords to Avoid — from HR Daily Advisor
• She “tweeted” what?! — from EmployerLINC

HR & Employee Relations

• Are You One Cold (Or Super Bowl Flu) Away From Being Fired? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Dazed and Confused About Medical Marijuana in the Workplace? Dude, It’s Just Starting — from Dan Schwartz’s Connecticut Employment Law Blog
• “But I’m a Whistleblower!”: Is an Employee Who Takes Confidential Documents Invincible? — from Trading Secrets
• Terminating an “At-Will” Employee: A Free Ride or Potential Time Bomb? — from CPEhr
• Why we need to take more time off from work — from Ragan.com
• my boss seems annoyed when I stay home every time it snows — from Ask a Manager
• Workplace Investigations — Dealing with the Aftermath — from WinWinHR

Wage & Hour

• Read this if you don’t want to overpay your salaried employees — from HR idiot
• Paid Sick Leave: Is it Worth it to Businesses? — from WSJ.com Law Blog
• FLSA Exemptions are about DUTIES not Titles — from Mike Haberman’s Omega HR Solutions
• A refresher on the breastfeeding at work rules — from Warren & Associates Blog

Labor Relations

• Super Bowl Ad Calls for Employee Rights Against Union Abuse — from LaborPains.org
• College Athletes to Unionize? More on the Northwestern University Football Players NLRB Petition — from Labor Relations Today
• They’re Ba-ack: NRLB to Re-Propose Election Regulations — from Labor Relations Update
• NLRB Proposes Amendments to Election Rules — from Phil Miles’s Lawffice Space
• Breaking: #NLRB posts new quickie election rules — from The Human Race Horses
• NLRB Proposed New/Old Election Rules — from Workplace Prof Blog

Proposed ambush election rules offer the best reason to be proactive about union avoidance

Last week I suggested that a pro-union NLRB has emboldened labor unions into more aggressive organizing efforts. You need not look any further than yesterday’s news that the NLRB has reissued its ambush-election rules.

According to the Wall Street Journal, the median time between the filing of a representation petition by employees, and the NLRB holding an election in a contested organizing campaign, is 59 days. The NLRB’s proposed rules would cut that time by more than half, to a lightning-quick 25 days or less.

Make no mistake, this proposal is primarily designed to help labor unions win elections. Often, an employer does not know that a labor union is attempting to organize until after the representation petition is filed. By that point, the union and its organizers have already planted the seeds of employer discontent with workers, leaving the employer to play catch-up. The quicker the election period, the less time the employer has to spread its message. Thus, these rules, if they take effect, will be a big win for labor unions.

There are two things you can do, right now, to protect yourself.

1. The NLRB is taking comments until April 7 on these proposed rules. Write to your Senator. Write to your Congressman. Talk to your trade and business organizations. Compel anyone you can to take a stand against these rules and hope for a more reasonable outcome.

2. Heed my call from last week to take steps now to formulate, and communicate to your employees, your corporate message on labor unions. The importance of having your strategy in place before a union comes knocking will be even more important if these new election rules take hold.

I (don’t) “like” this protected concerted activity

Last October, in Bland v. Roberts, the 4th Circuit held that a Facebook “like” qualifies as speech protected by the First Amendment. As we know, however, the First Amendment does not apply to private workplaces, in which employees do not enjoy constitutional free speech rights. Employees do, however, enjoy the right to talk among themselves about wages, hours, and other terms and conditions of employment—concerted activity protected by the National Labor Relations Act.

Soon, the NLRB will decide whether an employee clicking the “like” button on another employee’s Facebook post or comment is sufficient to qualify as protected concerted activity.

In Triple Play Sports Bar [pdf] (h/t: Wall Street Journal Morning Risk Report), an Administrative Law Judge

Spinella’s selecting the “Like” option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity. Spinella’s selecting the “Like” option, so that the words “Vincent VinnyCenz Spinella…like[s] this” appeared on the account, constituted, in the context of Facebook communications, an assent to the comments being made, and a meaningful contribution to the discussion. [T]he Board has never parsed the participation of individual employees in otherwise concerted conversations, or deemed the protections of Section 7 to be contingent upon their level of engagement or enthusiasm. Indeed, so long as the topic is related to the employment relationship and group action, only a “speaker and a listener” is required.

As much as it pains me, the ALJ’s reasoning is sound. Speech is speech, whether it’s engaging in an oral conversation, writing a comment to a Facebook post, or clicking “Like.” Liking something on Facebook is akin to an endorsement of, or agreement with, the comment liked.

To paraphrase what I wrote when commenting on the the Bland v. Roberts decision, protected concerted activity rights likely extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. I would expect the NLRB to agree with the ALJ when it announces its decision later this year. In the meantime, employers need to take heed before taking action based on these online activities.

Deterring the wage-and-hour scofflaw

The New York Times reported late last week that a Manhattan Domino’s Pizza franchisee has settled a wage-and-hour class action lawsuit for $1.28 million.

Sixty-one delivery drivers alleged that managers told them that they would only be paid for 40 hours per week, no matter how many hours they worked. The drivers alleged that they often worked more than 40 hours in a week, sometimes as many as 65. The awards range from $61,300 to $400 per delivery person, depending on length of employment.

I suppose cases like this one shouldn’t stun me, but they still do. I’m appalled that employers, in 2014, remain ignorant about, or, worse, deliberately ignore, their obligations under the wage-and-hour laws. And, I’m not talking about the law’s minutia, like payment for travel time, or calculating an overtime rates on performance bonuses. I’m taking about the basics, such as you have to pay overtime to non-exempt employees who work more than 40 hours in a week.

Some argue that stories like this one illustrate that we need tougher wage-and-hour laws to deter employers from stealing wages from their employees. I think the laws are tough enough. $1.28 million is a tough nut for any business to swallow. Instead, we need education. For the ignorant, we need to teach them about the FLSA and its complex web of requirements. For the scofflaws, we need to continue to publicize cases like the Domino’s Pizza settlement in the hope that they get the message. The laws we have are more than sufficient to protect employees’ wages, provided we do our share to secure compliance.

Is regular attendance an essential job function when an employee asks for time off from work?

I’ve written before about the need for employers to handle with care an employee’s request for unpaid time off as a reasonable accommodation under the ADA. And, I’ve also written about the hard line the EEOC has taken against hard-capped leave of absence policies.

All is not lost, however, for an employer who needs to deny a leave of absence to a sick or injured employee, provided that the circumstances are right and the requests is handled correctly.

To be eligible for protection under the ADA, an employee must be a “qualified” individual with a disability. “Qualified” means that the employee must be able to perform the essential functions of the job with, or without out, a reasonable accommodation. If regular attendance is a bona fide essential function of the job, than an employee who needs a leaves of absence as his or her only accommodation will not be “qualified,”
entitling an employer to deny the accommodation request.

“Isn’t regular attendance essential to every job,” you ask? Unfortunately, in the context of the ADA, the answer is “no.”

Attendance may be an essential function of a job, provided that the circumstances warrant such a finding.

• Is an organization sufficiently staffed such that an employee’s job functions can be performed in his or her absence?
• Will the employer sustain added overtime costs as a result of an employee’s absence?
• Will the employer have to hire substitute employee(s) to cover for the absent employee?
• Does a written job description list attendance as an essential function?
• Does the employer have formal policies providing for leaves of absence, or otherwise have a history of granting leaves to employees?

In other words, does the proposed accommodation impose an unreasonable and undue hardship on the employer? If the answer is yes, then attendance is an essential function, and a leave of absence cannot be a reasonable accommodation.

The Southern District of Indiana recently examined this issue in EEOC v. AT&T Corp. In that case, AT&T denied a leave of absence to an employee, Lupe Cardona, needing time off for Hepatitis-C treatments. AT&T argued that regular attendance was an essential function of the employee’s job as a customer service specialist. The court disagreed, and concluded that a jury should make the ultimate determination:

1. The only evidence AT&T submitted in support of its argument that attendance was an essential function of the job was the disciplinary notices it provided to Cardona for her absences.
2. The job description for Cardona’s position failed to list attendance as an essential function.
3. AT&T maintains 22 different leave-of-absence plans, which belies its claim that attendance is an essential function.

As the court pointed out in AT&T, “regular attendance is important in any job.” Important, however, does not always equate to essential. The bona fides must support the claim. Given the hard line the EEOC has drawn against the rote denial of leaves of absence as an ADA accommodation, employers should make a careful determination before denying a leave of absence as a reasonable accommodation. You might be able to support the decision based on attendance as a reasonable accommodation, but, as the AT&T case illustrates, you must have the facts to support your decision.

WIRTW #306 (the “donning and doffing” edition)

Earlier this week, the U.S. Supreme Court issued its first employment decision of 2014, Sandifer v. U.S. Steel [pdf], which held that the time employees spent donning (putting on) and doffing (taking off) their protective gear is not compensable under their collective bargaining agreement by operation of section 203(o) of the Fair Labor Standards Act. For background on Sandifer, see my coverage of last October’s oral argument. For more on section 203(o) of the Fair Labor Standards Act, see my coverage of a 2010 6th Circuit opinion, which Sandifer reversed. For more on the Sandifer opinion, see the following from my blogging brethren:

• Opinion analysis: “Clothes” are items commonly regarded as articles of dress — from SCOTUSblog
• SCOTUS resolves one unclarity of federal wage and hour law — from Walter Olson’s Overlawyered
• Donning, Doffing and “Changing Clothes”: Supreme Court Says When Employees Get Paid — from Dan Schwartz’s Connecticut Employment Law Blog
• The Supreme Court on FLSA, donning, doffing, and Daft Punk! — from Eric Meyer’s The Employer Handbook Blog
• Supreme Court Defines “Changing Clothes” under Section 203(o) of the FLSA — from Minnesota Employment Law Report
• What the Supreme Court’s Decision on Donning and Doffing DOES NOT MEAN! — from Jonathan Segal
• SCOTUS: No pay for time spent donning and doffing protective gear — from Ross Runkel Report

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

Discrimination

• The EEOC and “English-Only” Policies in the Workplace — from Wisconsin Employment & Labor Law Blog
• Five employer lessons from ADAAA “temporary injury” decision — from Robin Shea’s Employment and Labor Insider
• The EEOC Has A Cow, And Now Must Raise Its Beef On Appeal — from Workplace Class Action Litigation
• Retaliation 201 – you can’t retaliate against someone associated with a person who engaged in protected activity — from Warren & Associates Blog
• Interactive Process is a Must — from The Blue Ink
• Maintaining a religious-neutral workplace — from EmployerLINC
• “Men Who Seduce Like Cavemen” – Sexual Harassment The Way It Was In The US 50 Years Ago — from Employment Discrimination Report
• Dear Evil Skippy: How Long Do We Have To Ignore My Co-Worker’s Obvious Pregnancy? — from Evil Skippy at Work

Social Media & Workplace Technology

• This microsite is one endless, creepy conference call — from The Verge
• Time to Log Off? Take Care When Crafting Workplace Internet Policies — from TLNT

HR & Employee Relations

• Employers Should Have a Bill of Rights — from Evil HR Lady, Suzanne Lucas
• Are You a Co-Employer? — from The Emplawyerologist
• Judges Fuerst and Joseph Russo Join Judges O’Donnell and McMonagle on Cuyahoga CP Commercial Docket — from Cleveland Law Library Weblog
• Fired for What!? - Farting While Singing — from Lawffice Space
• On Entitlement, Regardless Of Your Generation — from Shankman Blog
• Send a non-compete demand letter – buy yourself a lawsuit? — from Trade Secrets & Non-Compete Blog

Wage & Hour

• Students Are Now Employees? OSHA Issues Citations to Vocational Rehabilitation Center for Alleged Safety Violations — from Employment Law Lookout
• Court Makes A U-Turn and Decertifies Class At Trial — from The Wage and Hour Litigation Blog
• A Minimum-Wage Hike Could Help Employers, Too — from Harvard Business Review
• Hours Worked: To Suffer or Permit…. Who Talks Like That? — from Michigan Employment Law

Labor Relations

• Is College Football “Work”? Employment Law Worldview
• Northwestern Football Players File Representation Petition with the NLRB — from Workplace Prof Blog
• NLRB Rescinds “Quickie Election” Rules, But New Election Rules Could be Issued Later This Year — from Labor Relations Today

Eliminating Mad-Men workplace policies #SOTU

During Tuesday’s State of the Union Address, President Obama handed down the following edict:

It’s time to do away with workplace policies that belong in a “Mad Men” episode.

He’s correct. His comment was directed at a commitment to expanding equal-wage and family-leave laws. However, this statement is as much about workplace culture as it is about workplace laws. After all, the FMLA is a floor, not a ceiling.

Coincidentally, the morning after the SOTU, I came across the following post, written by Mary Wright at Blogging4Jobs.com: Build a Culture of Workplace Flexibility. In that post, Mary makes the argument for creating a culture of workplace flexibility, built around these seven tent-poles:

1. Choices in managing time
2. Flex time and flex place
3. Reduced time
4. Time off
5. Flex careers
6. Dealing with overwork
7. Supervisor and coworker support

I’ve been thinking a lot about this issue this week, as my wife has been out of town on a business trip, making me a single dad, solely responsible to get kids to and from school and to attend to two snow days. The practice of law isn’t always conducive to parenthood. Yet, this week I’ve been in the office less than I would otherwise like to be, taking advantage of remote network access from home and the comforts of shifting some work until after the kids are asleep. It’s not easy, and it’s not ideal, but for me, it works, and I appreciate the flexibility. Do the same for your workers, if and when you can. Trust me, they will they appreciate it. Even better, you will keep quality workers engaged and employed, which is a win-win for everyone.

A lesson on union avoidance

Last week, the Department of Labor’s Bureau of Labor Statistics published its annual report of union membership. Private-sector union membership remains steady, at approximately 6.7 percent, which, as Cleveland.com points out, is a marginal increase from the prior year. Nevertheless, and perhaps emboldened by a favorable ear at the NLRB, labor unions have become more active in trying to organize workers. Even the players on Northwestern University’s football team are trying to organize.

Do you know what to do if a labor union comes knocking at your door? Do you know what you can say to your employees if you hear the whispers of unionization floating through your workplace?

More importantly, do you know what you cannot say to your employees about labor unions and their organizing efforts? Take, for example, Phillips 66 (1/15/14) [pdf], in which the NLRB recently concluded that the employer unlawfully interrogated an employee when a supervisor asked him, “What’s your opinion of this union thing?”

Interrogation is one of the four cardinal sins of employer opposition of labor unions. The other three? threats, promises, and spying. The four are easy to remember. They spell the well-used acronym TIPS (Threats, Interrogation, Promises, Spying).

PolicyMic recently published an internal Wal-Mart slide deck (hat tip: The HR Capitalist), which discusses the TIPS strategy in detail. Wal-Mart uses these slides to train its managers and supervisors on the right way, and the wrong way, to respond to union organizing.

PolicyMic took Wal-Mart to task for “encouraging managers into repeating anti-union talking points.” To the contrary, I applaud Wal-Mart for being proactive in ensuring that its managers know what they can, and cannot, say about unions, and for implementing a tactical, measured, and lawful response to union organizing.

Your managers and supervisors are your front-line defense against unions. They will hear the scuttlebutt among the employees. They will know whether your employees are happy and content, or dissatisfied and eager for change. They will be the ones to whom your employees communicate via your Open Door Policy (you have an Open Door Policy, right?) when they have a gripe or concern? And, they will be your mouthpiece to communicate to your employees your lawful corporate stance on labor unions, and the impact a union will have on your workplace.

The Wal-Mart slide deck is a great starting point for you to formulate and communicate your corporate philosophy and message on labor unions. Your friendly neighborhood labor and employment lawyer (nudge, nudge) is another. The point, however, is to have your strategy in place before a union comes knocking. Once the union starts talking to employees, your anti-union torpedo better be in the tube and ready to fire. Otherwise, you might just find yourself at the bargaining table discussing that first collective bargaining agreement.

For more on my ideas on strategic union avoidance, head over to a post I wrote all the way back in 2009, Adopt the TEAM approach to fight unions, or check out Chapter 8 in my book on workplace laws, The Employer Bill of Rights, which covers this topic in much greater detail.

Are temporary impairments ADA-protected disabilities? You bet.

When Congress amended the ADA in 2009, it’s goal was to bring the statute back to its original intent — the protection of the legitimately disabled from suffering discrimination in the workplace.
Suppose an employee suffers a serious injury to his legs that prevents the employee from walking and restricts him to a wheelchair, but with surgery and lots of physical therapy the employee will regain the us of his legs at some point in the future. Is this employee “disabled” under the ADA? More specifically, if the employer refuses even to consider any reasonable accommodation that will permit the injured employee to return to work, and instead fires the employee, has the employer violated the ADA?

According to the 4th Circuit’s decision late last week in Summers v. Altarum Institute, the answer is a resounding “yes.”

The EEOC’s decision to define disability to include severe temporary impairments entirely accords with the purpose of the amended Act. The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits. The EEOC’s interpretation — that the ADAAA may encompass temporary disabilities — advances this goal. Moreover, extending coverage to temporarily impaired employees produces consequences less “dramatic” than Altarum seems to envision. Prohibiting employers from discriminating against temporarily disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.…

In sum, nothing about the ADAAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions. Because Summers alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment “substantially limited” his ability to walk.

Employers should not hold out hope that other circuits will interpret the ADAAA’s application to temporary impairments differently. The 4th Circuit is one of the more notoriously conservative circuits. More employee-friendly circuits (our 6th Circuit, for example) should have little difficulty reaching the same conclusion.

The takeaway for employers is no different from that which I have been cautioning for years. Disability discrimination cases will no longer focus on whether an employee is legally “disabled,” and instead will focus on whether an employer engaged the employee in the interactive process towards a reasonable accommodation. If you focus on the former and ignore the latter, as Summers illustrates, you will be fighting a severely uphill battle in defending your actions in court.

[Hat tip: Workplace Prof Blog and Eric Meyer’s Employer Handbook Blog]

High praise for The Employer Bill of Rights

It’s always nice for someone to post a five-star review of your book on Amazon, but it’s even nicer when one of the most well-respected and insightful HR bloggers writes an entire column singing your book’s praises.

Suzanne Lucas (otherwise known as the Evil HR Lady), at Inc.com, wrote a review of The Employer Bill of Rights that made me blush. Thank you, Suzanne, for such kind words:

If you want to make sure you avoid getting [sued] in the first place, I highly recommend not only getting an employment lawyer, but reading Hyman’s book. It will give you the information you need to make better choices regarding your employees and your business.

I couldn’t agree more. For those who’ve yet to find my tome, it’s available at the following:

• Amazon (paperback and Kindle)
• Apple’s iBooks
• Barnes and Noble (paperback and Nook)
• Apress (my publisher — eBook)

I’ll be back tomorrow with new information to help keep from getting sued, discussing how one court just ruled that the ADA covers temporary impairments.

WIRTW #305 (the “encore” edition)

In case you haven’t seen the latest and greatest band sweeping Cleveland’s western suburbs, I bring you Norah and the Troopers, courtesy of the Strongsville School of Rock blog (okay, now I’m flat-out shilling like an exuberant dad — full video here: http://youtu.be/IAxcUCleMtg).

And, while I’m shilling, it doesn’t get any better than some from Rhett Miller, the lead singer of The Old 97's (isn't Twitter great?)

So sweet! RT @jonhyman: Some love for my 7 yr old girl killing it on guitar and vocals on The New Kid last weekend? https://t.co/9PPw96WpPL
— Rhett Miller (@rhettmiller) January 23, 2014

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

Discrimination

• EEOC: That Family Medical History is NONE OF YOUR Business — from Mike Haberman’s Omega HR Solutions
• Light Duty Only for Work-Related Injuries – Pregnancy Discrimination? — from The Blue Ink
• Who Is At Risk Of Being Sued Under the ADA? — from Employment Discrimination Report
• Gays can’t be excluded from juries because of sexual orientation, 9th Circuit says — from ABA Journal Daily News
• The EEOC Regulation You Need to Know When Making a “Material Change” to a Separation Agreement — from Dan Schwartz’s Connecticut Employment Law Blog
• Discrimination in a word: stereotypes — from Warren & Associates Blog

Social Media & Workplace Technology

• Social media? Anti-harassment? No workplace policy can prevent something this stupid — from Eric Meyer’s The Employer Handbook Blog
• Announcing a layoff on Facebook — from Ask a Manager
• Smartphones, Social Media and Sexual Harassment: 5 Steps to Mitigate the Risks of Hostile Work Environment Claims in the Workplace — from Employment Law Lookout
• 9th Circuit Court of Appeals Rules Bloggers Have First Amendment Protection — from Shear on Social Media Law
• Internet Harassment Is Nothing New — from The Daily Beast
• Struggling at the (Computer) Games of Life — from Harvard Business Review

HR & Employee Relations

• We Don’t Hire Jerks. Period. — from Evil HR Lady, Suzanne Lucas
• After Your “Daddy Days” End — from Harvard Business Review
• 3 HR Lessons I Learned In Vienna — from Molly DiBianca’s Delaware Employment Law Blog
• Employer Liability for Distracted Workers and Drivers is Plentiful — from Matt Austin Labor Law
• 3 Ways Letters of Reference Cause Problems for Employers — from California Employment Law
• Why the COOs of Yahoo and Family Dollar Stores Have Been Fired for Poor Performance But Will Get Millions in Severance - Further Adventures in “With” and “Without Cause” Terminations under Executive Employment Agreements — from Suits by Suits
• Doctors to sick people: “Stay home!” — from The Human Race Horses

Wage & Hour

• Raiders Cheerleader Files Wage and Hour Lawsuit — from Phil Miles’ Lawffice Space
• FLSA Companionship Services Exemption Will Narrow in 2015 — from Minnesota Employer
• Deciding How Much Employees and Owners Should Make — from You’re the Boss Blog
• 3 Ways Problems Arise With Employee Leave Tracking — from HR Daily Advisor
• Wage and Hour Compliance Priorities for 2014 — from Pennsylvania Labor and Employment Blog
• Employee stock ownership plans: Pros and cons for engaging employees — from Employment Intelligence

Labor Relations

• Don’t Believe The Hype When It Comes to NLRB Claims — from The HR Capitalist, Kris Dunn
• Give ‘Em The Boot! — from Labor Relations Institute

The workplace ethics of class-segregated bathrooms—the results

Two weeks ago I posed this question: Is it acceptable for a company to prohibit warehouse workers from using office bathrooms?

The results? By a margin of two to one, my readers expressed that it is not acceptable for a business to segregate its restrooms by class of workers.

This issue is not one of management rights versus worker rights. Or one of employer versus employee. Instead, this issue is about setting the correct tone for your workplace to send the right message to your employees. Do you want to be workplace of harmony and teamwork, or secularism and division? Do you want everyone to work towards a common goal, or fight amongst themselves based on their perceived station?

Yes, there are certain situations in which separate restrooms will be necessary (safety and cleanliness come to mind). But, telling certain employees, for no good reason, that certain bathrooms are off limits plants seeds of disharmony and segregation that will not help your business achieve its best. Openness and inclusion breed teamwork and dedication. You want your employees to perceive management as part of the team, not as feudal overlords. your policies should reflect this goal.

As for me, I’m off to use my golden key to use our executive washroom. Enjoy your day.

When is 1,250 not 1,250? Hours worked versus hours paid for FMLA eligibility

For an employee to be eligible to take leave under the FMLA, the employee must have been employed for at least 12 months, and have at least 1,250 “hours of service” during the previous 12-month period.

Hours of service means hours actually worked by the employee. It does not mean hours paid. Thus, paid non-working time—such vacations, holidays, furloughs, sick leave, or other time-off (paid or otherwise)—does not count for purposes of calculating one’s FMLA eligibility.

What does this rule look like in practice? Saulsberry v. Federal Express (6th Cir. 1/10/14) provides an example. In support of his claim that Fed Ex wrongfully denied leave under the FMLA, Pernell Saulsberry relied upon a document entitled, “Federal Express Corporation Employee Monthly Trend Report.” That report listed his “HR PAID TOT” for the previous 12 months as”1257.29.” The same report, however, listed Saulsberry’s “HR WKD TOT” as “1109.29.” At deposition, Salsberry admitted that the “Paid Tot” included paid time off during which he performed no services for Fed Ex, and the “Wkd Tot” accurately reflected the number of hours he had actually worked. Thus, because he worked less than the required 1,250 hours, the 6th Circuit concluded that Fed Ex legally denied his request for FMLA leave.

This case illustrates the importance of accurate time records. Whatever time tracking and payroll system you use, it must the ability to differentiate between time paid and time worked. It saved Fed Ex from an FMLA claim in Saulsberry, and it could likely save you too if an employee is on the 1,250-hour FMLA bubble.

Why I don't like most non-disparagement clauses (and 3 tips to fix them)

Will Blythe recently penned an op-ed in the New York Times entitled, Fired? Speak No Evil. In this piece, Mr. Blythe chronicled his recent job loss, and why he refused to sign a separation agreement that included a non-disparagement clause.

Like Mr. Blythe, I don’t like most non-disparagement clauses. Theses causes are exceedingly common in separation and settlement agreements. But, familiarity does not breed sensibility. These clauses are hard to control, hard to enforce, and encourage more litigation, not less.

Yet, most employers will insist on including these clauses in their agreements to hedge against the dead speaking ill of them. For your consideration, here are a three drafting points for your next non-disparagement clause:

     1. Hard to control? Who does a non-disparagement clause bind? If it just says, “Employer,” how does the agreement define “employer?” Even if you’re a small organization, can you control what Joe-coworker says about your departing employee, and do you want to have to advise every employee in your organization about potential non-disparagement obligations, and control what they say? I have two suggestions to help ease the pain of this issue. First, define who, specifically, the clause covers; don’t leave it open-ended to bind your entire organization. Second, at least as job references are concerned, put some controls in place. Define who is to be contacted, and what that contact-person is permitted to say. Even consider a predetermined script to limit any potential violations.

     2. Hard to enforce? Most non-disparagement clauses say something like, “Employer [and Employer] agree not to disparage, or make any negative comments about, the other,” which simply begs the question, what do “disparage” and “negative comments” mean? If you are serious about including this clause, define the terms. For example, your state will have a well-developed body of case law discussing and defining the meaning of defamation. This case law is a great starting point (and, maybe, end point) for this definition.

     3. Encouraging litigation? If a separation leaves bad blood between the parties, a non-disparagement clause is an easy way for a spiteful ex-employee or ex-employer to drag the other back into court. Separation and settlement agreements are supposed to end the parties’ relationship and cease litigation, not act as a breeding ground for more. To cure this ill, tie a loser-pays clause to this provision. If a losing parties has to pay the other’s attorneys’ fees, one will think long and hard before exercising the right to sue for a breach of a non-disparagement clause.

Non-disparagement clauses are ripe for sloppy and vague drafting, which can result in parties ending up where they wanted to avoid—the courthouse. Following these three tips will help you shore up your language to create non-disparagement clauses that you can actually rely upon, and, if necessary, enforce.