A call for the DOL to fix what is wrong with our wage-and-hour laws

Last week, President Obama called upon the Secretary of Labor to “modernize and streamline the existing overtime regulations.” According to the President, the “regulations regarding exemptions from the Act’s overtime requirement, particularly for executive, administrative, and professional employees (often referred to as ‘white collar’ exemptions) have not kept up with our modern economy. Because these regulations are outdated, millions of Americans lack the protections of overtime and even the right to the minimum wage.”

I could not agree more with the President that the FLSA’s regulations are outdated. In fact, I’ve been calling for a streamlining of the FLSA for nearly three years:

Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

President Obama, Secretary of Labor Perez, and members of Congress, take this opportunity to do something historic and write wage-and-hour legislation and regulations that make sense for 2014. Don’t just increase the current salary level from the current $455 per week to qualify for the white-collar exemptions. That change will do nothing more than create new classes of non-exempt workers. Employers won’t start paying them overtime; instead they will figure out how to limit their hours worked to keep that wages the same.

Instead, use this Presidential call-to-action as an opportunity to examine the entire legislative and regulatory scheme that dictates how employees are paid in this county. You will not help guarantee workers a fair wage putting a band aid on a much bigger problem. The FLSA needs to be scrapped and rebuilt from scratch. Otherwise, you will leave in place in system that is confusing for employers to meet their compliance obligations, which, at the end of the day, is unfair for employers and employees.

WIRTW #311 (the “bossy” edition)

Earlier this week Facebook COO Sheryl Sandberg launched BanBossy.com. She believes that “bossy” is to aspiring female leaders as the n-word is to African-Americans. Sandberg argues that banning people from calling young women bossy will help give them the confidence to lead when they are older.

What a bunch of bunk. You know what will give young women the confidence to lead? Providing them opportunities to lead. How about we focus more on the percentage of female leaders at Fortune 500 companies (a paltry 16.9% of corporate board members, 14.6% of Executive Officer positions, and 4.6% of CEOs) instead of the words we choose to call those who might some day aspire to bridge that gap?

Words are just words. Banning them, no matter how offensive they might be, doesn’t change the underlying thoughts and the resulting behavior. Do you know what happens when you ban a word like “nigger?” People who are inclined to say it think it instead. Banning a word doesn’t end bigotry, it just takes it underground. Banning “bossy” won’t increase opportunities for women just like banning the N-word won’t end racism.

We should all agree that increasing opportunities for women in the workplace is a worthy goal. We are kidding ourselves, however, if we believe that banning a word will help achieve it.

For more critiques of Sandberg’s “Ban Bossy” campaign, see:

• Sheryl Sandberg Is Bossy. So What? — from CareerDiva
• Sheryl Sandberg wrong on “bossy” ban — from CNN
• Recline, don’t “Lean In” (Why I hate Sheryl Sandberg) — from The Washington Post’s She The People

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

Discrimination

• The dilemma of writing your own EEOC position statement — from HR Hero Line
• The EEOC and the FTC Publish Documents Related to Background Checks — from All in a Day’s Work
• EEOC and FTC Tips on Background Checks — from Phil Miles’s Lawffice Space
• Sex Workers Can Sue Their Bosses For Sexual Harassment: An Exchange — from Employment Discrimination Report
• Protecting the Unemployed — from The L•E•Jer
• Beard discrimination? Not really. — from Michigan Employment Law Connection
• Amazing Race Contestants File Employment Discrimination Lawsuit — from Atlanta Employment Lawyer Blog
• Is Sexual Harassment Against Contract Employees Legal? — from Donna Ballman’s Screw You Guys, I’m Going Home

Social Media & Workplace Technology

• On the 25th anniversary of the web, let’s keep it free and open — from The Official Google Blog
• Game On! Are You Ready To Have Fun At Work? — from Employment Essentials
• So, you want to adopt BYOD? — from TiPb
• Your Next Job Application Could Be Via Smartphone — from Mashable
• Should You Separate “Personal Life” on Your Enterprise Network? — from Blogging4Jobs
• EMPLOYEES: Keeping your settlement confidential is easy, so do it! — from Robin Shea’s Employment & Labor Insider

HR & Employee Relations

• Can I Be Funny at Work Without Ruining My Reputation? — from Lifehacker
• Can we ask applicants about their driving records? — from Business Management Daily
• 5 essential steps for vetting job candidates’ credentials — from MonsterThinking
• Additional Restrictions on Employer’s Use of Criminal History Checks — from The Labor and Employment Law Blog
• Creating a Loving Workplace — from Joe’s HR and Benefits Blog
• Why You Should Eliminate Your Paid Time Off Policies — from Fistful of Talent
• Workplace investigation alert: Don’t interrogate your employees — from Warren & Associates Blog
• New York Times Article on Employer Interrogations of Employees — from Wisconsin Employment & Labor Law Blog

Wage & Hour

• Obama Proposes Changes to White Collar Overtime Exemptions — from Dan Schwartz’s Connecticut Employment Law Blog
• Overtime Expansion Coming? — from Manpower Employment Blawg
• In-House Counsel: Review Your Company’s Security Check Process — from In House
• Telecommuting: Good for Morale, Bad for Legal Exposure — from Corporate Counsel
• Hi Ho Hi Ho, it’s Off to Work We Go. — from Michigan Employment Law
• The DOL, Law Students, and Internships — from Workplace Prof Blog
• FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave — from Eric Meyer’s The Employer Handbook Blog
• 12-Month Period Under FMLA — from Workplace Insights

Labor Relations

• Union Faces NLRB Charge for Alleged Rape Threat — from LaborPains.org
• NLRB General Counsel Makes it Clear: He Has an Aggressive Agenda — from TLNT
• UAW’s Election Objections At VW Take An Interesting Turn — from Vorys on Labor
• Volkswagen v. Auto Workers Round 2 — from Labor Relations Institute

EEOC holds public meeting on social media in the workplace #socialEEOC

Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline A. Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

.#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC
— EEOC.gov (@EEOCNews) March 12, 2014

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

• Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
• Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.

The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.

How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws. 

Don't Bieber your deposition

Three years ago, I wrote a post entitled, 10 tips for preparing for your deposition, in which I offered some ideas for how to best prepare to give a deposition in case in which you are a witness. The tips includes the common sense (tell the truth), to the more esoteric (beware leading questions).

Today, I’m updating that top-10 list with an 11th tip: Don’t be a Bieber. Earlier this week, TMZ leaked the video of the highlights (or lowlights, depending on your perspective) of the deposition Justin Bieber gave in a case in which a photographer claims Bieber ordered his bodyguard to attack him. This deposition might go down as the worst performance ever given under oath.


It is rare that you will win a case during your deposition. The person asking the questions is not your friend. The inquisitor is looking for opportunities to trip you up, put words in your mouth, and make you look bad. Yet, while you can’t win a case during your deposition, you certainly can lose it. You can make admissions that you don’t need to make, or you can come off looking like Bieber did in his video—like an a-hole.

The video is entertaining, but it’s also instructive. If you are being deposed, don’t play games. Don’t feign fake ignorance. Don’t get smart or act smarmy. Yes, it’s an unpleasant experience to be under oath. Don’t make it worse by giving a Bieber-like performance.

So, thank Biebs. You provided me the perfect instructional tool for me to show my witnesses before they are deposed, so they don’t act like you.

[Hat tip: Eric Meyer and Phil Miles]

EEOC issues new guidance on religious dress and grooming in the workplace

Law.com, one of the best websites for legal information, recently relaunched. Its relaunch features posts by well-known bloggers, including yours truly.

My first post at Law.com discusses the EEOC’s recently published Q&A on reasonable accommodation of religious dress and grooming in the workplace. Please click over to check out the revamped Law.com, and my first contribution.

Gender equality is dead; long live gender equality!

http://flic.kr/p/dLGTi8

I rarely write about active cases I’m handling. In fact, I can only think of one other time that I was mad enough to do so. Today marks time number two. Each involves a galling lack of professional courtesy.

I’m currently in the middle of a contentious piece of litigation in western Pennsylvania. The witnesses, however, are scattered all of the country, including two in Dallas, who I had to go to court to defeat a motion to compel their attendance in PA for their depositions. On Friday, I received a phone call from plaintiff’s counsel (who is in his mid to upper 70s), in which he told me he intended to take their depositions in Dallas this coming Wednesday and Thursday. I responded that even if they could be available on such short notice (they can’t be), I’m unavailable because my wife is traveling those two days for her job and one of us needs to be home with the kids.

His response floored me. He says, “You’re a lawyer. It’s unprofessional for you to plan your schedule around your wife. She should be at home taking care of the kids.”

We don’t live in an Ozzie & Harriet world anymore. Long gone are the days when a wife would be waiting at home to greet her husband with a pair of slipper and a martini while she put dinner on the table. Women work. My wife (who, by the way, gave up her career for 6 years to stay at home with our children) has restarted her career. Her job requires her to travel, which means we share a travel calendar. To make sure that our kids are never abandoned, we clear all travel with the other’s out-of-town schedule before making our own business arrangements.

Readers, please don’t carry this attitude into your business. There is only one unhappy ending to telling one of your employees that his wife, or she, belongs at home with the children. It starts with law- and ends with -suit. Women have the right to work, and neither they, nor their spouses, should be punished for exercising that right, regardless of their chosen profession.

As for which one of us in my tale was acting unprofessionally, I leave that decision up to you.

WIRTW #310 (the “suck it” edition)

Have you heard the one about the daughter who posted on her Facebook page about her dad’s age discrimination settlement with his old company? As it turns out, writing, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT,” violated the confidentiality language in Papa Snay’s settlement agreement, causing him to forfeit an $80,000 settlement payment. Oops.

The following blogs have more on this very interesting story:

• Daughter’s Facebook post costs dad $80k employment settlement — from Eric Meyer’s Employer Handbook Blog
• Facebook “SUCK IT” Costs Dad $80,000 — from Lowering the Bar
• Daughter’s Facebook Post Costs Dad his Settlement — from Phil Miles’s Lawffice Space
• Daughter’s Facebook post costs dad $80,000 — from Internet Cases
• Facebook and confidentiality agreements do not mix — from Michigan Employment Law Connection
• Daughter’s Facebook Post Sink’s Father’s Settlement — from All in a Day’s Work
• Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreements — from Employer Law Report

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

Discrimination

• U.S. Civil Rights Commissioners Take EEOC to Task on Background Checks — from employeescreenIQ Blog
• The A, B, C’s of EEOC — from The Labor Dish
• A $26 million verdict reminds us that ageism is as illegal as the other “isms” — from Sindy Warren
• Employers Be Warned- Look at the Big Picture When Considering Harassment Allegations — from Currents: Hot Topics in Employment Law
• Employer’s quick action bars racial harassment claim — from EmployerLINC
• Employee Who Fails to Return from Vacation Has No Claim of Discriminatory Termination — from The Employment Brief
• Bullying Debate: “Do We Need To Wait For A Law?” — from Employment Discrimination Report
• EEOC: Employer Agrees to Improve Process of Designating Worker as Safety Threat Under ADA — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Privacy is Going to be a Major Employee Concern for the Future — from Blogging4Jobs
• Social Media and Its Impact on the Workplace: What Every Employer Needs To Consider — from Trading Secrets
• The Problem With Corporate Webmail — from The Not-So-So Private Parts
• Before You Send That Scathing Email, Remember the Tale of the Job Bank House Mother — from Evil HR Lady, Suzanne Lucas
• Make BYOD Work: 9 Key Considerations — from InformationWeek

HR & Employee Relations

• Manage Your Work, Manage Your Life — from Harvard Business Review
• Who’s working at home, and is home the proper place? — from Technology for HR
• The Joys of Telecommuting, according to telecommuters — from Families and Work Institute Blog
• Six Rules for terminations: Firing Fast does not mean firing Stupidly! — from Mike Haberman’s Omega HR Solutions
• Becoming Employers of Choice — from SHRM Blog
• Should Background Checks Be On Your New Employee Checklist? — from HR Defense Blog
• Your Job Search and the Fair Credit Reporting Act (FCRA) — from hr bartender

Wage & Hour

• Employer’s Wage Issues with Students on J-1 Visas — from Wage & Hour - Development & Highlights
• Answers to AOL Jobs Reader Questions On Wages and Overtime — from Donna Ballman’s Screw You Guys, I’m Going Home
• FMLA Win for Employers – Employees Can Affirmatively Decline FMLA Leave & Thus FMLA Protections — from The Labor and Employment Law Blog
• Family and Medical Leave, Doctor’s Notes, and Employee Preferences — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Lawyers Look To Unionize At Bloomberg Law — from Above the Law
• UAW to NLRB: Tell Politicians to Stay Out of Our Elections — from Labor & Employment Law Perspectives
• NLRB’s Expedited Election Rule: “A Solution in Search of a Problem” — from TLNT

Read this post before you access your employee’s social media accounts

Susan Fredman Design Group employed Jill Maremont as its Director of Marketing, Public Relations, and E-Commerce. In that capacity, she used her own personal Twitter account and Facebook page to promote SFDG’s business. To keep track of the various social media campaigns she was conducting for SFDG, Maremont created an electronic spreadsheet, on SFDG’s computer and saved on SFDG’s server, in which she stored the passwords for her accounts. It appears that Maremont provided access to, or copies of, the spreadsheet to other SFDG employees to assist in her social media posts on behalf of the company.

Maremont suffered injuries in a serious car accident that kept her out of work. During that time, she claimed that SFDG employees, without her permission, accessed her Facebook and Twitter accounts and posted on her behalf.

In the ensuing lawsuit—Maremont v. Susan Fredman Design Group (N.D. Ill. 3/4/14)—Maremont alleged violations of the Lanham Act (that SFDG unlawfully passed itself off as Maremont), and the Stored Communications Act (that SFDG unlawfully accessed her electronic accounts without her permission). The district court dismissed the Lanham Act claim, but permitted the Stored Communications Act claim to proceed to trial.

Legal intricacies aside, the case is both instructive and troubling.

This case is instructive because it shows the danger when a company fails to brings its social media accounts in-house. Maremont used her personal Facebook and Twitter accounts for her employer. When she was out of the office for an extended period of time, instead of letting its social media presence falter, SFDG used Maremont’s account information to continue posting. How could SFDG have avoided these potential legal traps and an expensive lawsuit? Either by requiring that Maremont use its own social media accounts for official company business, or by having a written agreement with her that it had the right to access her mixed-use personal accounts. The former is cleaner and less risky, but the latter would have still likely kept it out of court, even if mixed-use accounts are harder to untangle at the end of employment.

This case is troubling because it sets the precedent that an employer to which an employee provides passwords to the employee’s social media accounts cannot access those accounts for business purposes. By all appearances, Maremont provided her account information and passwords to her coworkers. SFDG could not have foreseen that it would violate federal law by using them to continue Maremont’s work while she was incapacitated. Yet, that is exactly what happened.

What’s the main takeaway here? If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact.

[Hat tip: Internet Cases]

Following doctor’s orders helps employer win ADA case

Cynthia Horn worked for Knight Facilities Management as a janitor. Sometime in 2010, she developed a sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day. When that limitation failed to abate Horn’s symptoms, her doctor modified the restrictions to “no exposure to cleaning solutions.”

As a result, Knight Facilities fired Horn. It concluded that there was no work available to accommodate her restrictions, because the chemicals were airborne and merely working in the building resulted in exposure. Management spoke to Horn’s union rep, on Horn’s behalf, to try to find a solution before firing her, but none could be found. Notably, Knight Facilities refused to allow Horn to use a respirator, concluding that its use did not meet Horn’s restriction and, even if it did, it would cause an undue hardship because Knight Facilities would have to buy respirators for all of the other janitors.

In Horn v. Knight Facilities Management-GM, Inc. (2/25/14), the 6th Circuit affirmed the district court’s dismissal of Horn’s disability discrimination claim. In determining whether the employer could reasonable accommodate Horn’s disability, the court started, and ended, with the limitation imposed by Horn’s doctor—“no exposure to cleaning solutions.” Horn claimed that the company either should have: (1) eliminated restrooms on her cleaning route, or (2) provided her a respirator. The court disagreed:

We find that neither proposed accommodation is objectively reasonable because they both fail to comply with the physician-mandated restriction of “no exposure to cleaning solutions.” Eliminating the bathrooms on Horn’s route or assigning her to a new route without bathrooms are not reasonable accommodations because it is undisputed that Horn’s job still would have involved exposure to cleaning chemicals. Likewise, there is no evidence that working with a respirator would have complied….

Her restriction was “No exposure to Cleaning Solutions” and that would include using or touching cleaning solutions. And while Horn asserts that a respirator could have eliminated or significantly reduced her respiratory exposure, she provides no actual evidence to support this statement, much less evidence showing that a respirator would have prevented all exposure. Horn’s personal belief that she could handle cleaning solutions as long as she was wearing a respirator is irrelevant.

While the ADA requires that you engage a disabled employee in the interactive process, as Horn illustrates, the employee’s specific medical limitations can dictate the boundaries of that interactive process and the scope of the accommodations you have to consider offering. If you legitimately cannot make an accommodation that meets the employee’s limitations, then the employee is not “qualified” under the ADA, and therefore unprotected by that law.

When are preliminary and postliminary compensable? Supremes to let us know (maybe).

Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

“What does this mean,” you ask? In Busk, the plaintiffs claimed their employer illegally failed to compensate them for the time they spent passing through a required security check at the end of each shift. According to the plaintiffs, employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. They claimed that the checks were “necessary to the employer’s task of minimizing ‘shrinkage’ or loss of product from warehouse theft.”

The FLSA, as amended by the Portal-to-Portal Act, generally, precludes compensation for activities that are activities that are preliminary or postliminary to the employees’ principal activities. Preliminary and postliminary activities—those that are “integral and indispensable” to an employee’s principal activities—are compensable. To be “integral and indispensable,” an activity both must be (1) necessary to the principal work performed and (2) done for the benefit of the employer.

In Busk, the court concluded that the plaintiffs had sufficiently alleged that the security clearances were necessary to their primary work as warehouse employees and done for their employer’s benefit. Therefore, the district court erred in dismissing the wage-and-hour claim.

This  case is the second in as many years that the Supreme Court will hear on this issue. Earlier this year, in Sandifer v. U.S. Steel, the Court concluded that the time employees spent donning (putting on) and doffing (taking off) their protective gear was not compensable under their collective bargaining agreement.

There are lots of other examples of preliminary of postliminary activities that could be occurring in your workplaces besides putting on and taking off protective gear, or security screenings. For example, your employees might spend time logging on to their computers before their work days officially begin. Or they might spend time at the end of their shifts transitioning to the next shift. I am hopeful that Busk will provide employers needed guidance on the compensability of these activities. Stay tuned!

NLRB looks to expand reach with latest enforcement priorities

Late last month, the new NLRB General Counsel, Richard Griffin, published a memo (GC 14-01) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that  will be an enforcement priority for the agency moving forward.

Of particular note, the memo lists the following two issues:

• Cases involving the applicability of Weingarten principles in non-unionized settings.

• Cases that involve the issue of whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard.

Why are these two issues important to employers? Because they show that the NLRB continues to look for ways to expand its reach beyond the traditional union/management setting. As I’ve been arguing for years, the NLRB is looking for ways to become relevant to the 93 percent of employees not covered by a collective bargaining agreement. The Board has cornered the market on social media cases, and is now expanding its reach to other issues—the rights of non-union employees to representation in disciplinary meetings, and email solicitation rules.

It is clear that it is going to be an interesting three years under the current iteration of the NLRB. Employers should expect movement on these two issues. Stay tuned.

WIRTW #309 (the “Hello, and welcome to Moviefone” edition)

Before there was Google or Fandango, there was Moviefone. Growing up, if we wanted to go to the movies, we didn’t have the luxury of iPhones or the Internet. But, we had 777-FILM, the ubiquitous (and free) telephone service that would tell us what movie was playing when and where. Now, of course, we have Fandango and iPhones, and, quite frankly, I’m surprised Moviefone’s telephone service lasted as long as it did. So, with a nostalgic tear, this week we bid adieu to Moviefone’s 25-year-old telephone service. At least we’ll always have Kramer:

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

Discrimination

• U.S. Commission On Civil Rights Blast EEOC’s Background Check Guidance As “Deeply Flawed” — from EEOC Year-End Countdown
• EEOC Charge Data and Chart FY2013 — from Phil Miles’s Lawffice Space
• The Ultimate Bait and Switch? Female Job Applicant Who Claims She Was Forced to Perform Sexual Favors as Part of “Application Process” has no Title VII Claim Because the Job she was “Applying for” Did Not Exist — from The Blue Ink
• EEOC Plucks Another Low Hanging Fruit – Hospital Settles With Fired Epileptic Doctor For $215,000 — from Employment Discrimination Report
• 7th Circuit Upholds Summary Judgment Finding No Adverse Employment Action When Employee Merely Anticipated Transfer That Never Materialized — from Wisconsin Employment & Labor Law Blog
• Mohawks in the workplace aren’t gay. Stupid, but not gay. — from Eric Meyer’s The Employer Handbook Blog
• How do you train you managers on harassment/discrimination? — from Warren & Associates Blog

Social Media & Workplace Technology

• How Can We Keep Our Law Firm’s Systems Safe in a BYOD World? — from Attorney at Work
• Clio survey reveals iPhone, iPad popularity among small law firms — from iPhone J.D.
• We now spend more time using smartphones than surfing the web on PCs — from Engadget Mobile
• Can A Facebook Status Update Violate A Non-Compete? — from InhouseBlog.com
• Got a “Secret”? Firewalls Are Not Stopping Spread Of Social Media  — from Dan Schwartz’s Connecticut Employment Law Blog
• Dammit, Jim! I’m an HR pro, not a social media guru! — from The Human Race Horses

HR & Employee Relations

• 5 reasons why you shouldn’t work too hard — from Washington Post’s She the People Blog
• 6 Tips to Help You Avoid Employee Lawsuits — from The Evil HR Lady, Suzanne Lucas
• Miami Dolphins’ culture sure didn’t help in Incognito situation — from Robin Shea’s Employment and Labor Insider
• Pass ‘em on: Two short videos about workplace bullying and the Healthy Workplace Bill — from Minding the Workplace
• New Trade Secrets Study by PwC and CREATEe.org — from Fair Competition Law
• Knocking Out A Trade Secret Claim—Your Own If You Are Not Careful — from Trade Secrets and Noncompete Blog
• Should Employees Get Dressed Down For Not Dressing Up? — from Workplace Diva
• Does “at-will employment” really mean what you think? — from HR Hero Line
• Will The Reason For My Termination Turn Up In A Background Check? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• Tales from the Business of Wage and Hour Litigation — from Walter Olson’s Overlawyered
• Employees Seek To Take Bite From Apple (and Urban Outfitters) — from Employment Class Action Blog
• Fifth Circuit Affirms FLSA Summary Judgment Based On “Complete Lack Of Evidence” Of Off-the-Clock Work — from Wage and Hour Law Update
• Don’t Play Fast and Loose with FMLA rights! — from Employer Law Report

Labor Relations

• Volkswagen Workers Vote Against UAW Representation; UAW Challenges Result — from Hunton Employment & Labor Law Perspectives™
• NLRB announces April 10 and 11 public meeting on proposed amendments to representation-case procedures​ — from Labor Relations Institute

Has social media created too much workplace transparency?

I have two confessions to make: 1) I don’t read much anymore, at least not for pleasure. 2) I can’t do work on airplanes.

“How are these related,” you ask? I used to read a lot. Now, though, I do all my reading at work. After a long day of reading briefs, and motions, and cases, the last thing I want to do at night is read more. The only time I read is when I fly. I don’t enjoy business travel, but I do enjoy the few hours of solitude with a good book (unless the guy sitting next to me knocks back 4 vodka-OJs in the first 10 minutes of the flight and then falls asleep on my shoulder while he continuously passes wind — true story).

On Monday I was in Houston on an injunction hearing attempting to enforce a non-compete, which meant that on Sunday night and Monday evening, I had dedicated airplane-pleasure-reading time. My book of choice was The Circle, by Dave Eggers. It tells the story of a Bay-area company that has cornered the market on social media and e-commerce, through the eyes of one of its new superstar employees, Mae.

Early in Mae’s employment, she gets called into HR because she failed to respond to a co-worker’s online request that she attend his Portugal-themed party. Mae had, years earlier, posted pictures of a trip to Lisbon on her Circle page, which led this co-worker to believe that she liked all things Portuguese, which, in turn, caused his turmoil when she ignored his party invite.

I tell this part of the story in response to an article I came across yesterday on Philly.com, entitled, How social media has changed the way co-workers bond (hat tip Eric Meyer). The article hypothesizes:

Social networking has made it easier to form personal relationships with co-workers. On sites such as Facebook and Instagram, where people share their likes and dislikes, family photos and new hobbies, people gain insight into colleagues that could provide the basis for forging stronger workplace bonds.

Which is true. But, with transparency comes responsibility. What had previously been a trivial interpersonal matter (a declined invite) becomes a potential HR matter. How much you permit your employees to connect on social media sites will, in part, depend in how much of their personal lives you want leaking into your workplace, balanced against the ease of connectivity and relationship formation.

Nevertheless, today’s ignored invitation could be tomorrow’s harassment complaint. There is no right or wrong answer to this question. It is a decision guided by corporate culture and risk tolerance. What is important, however, is to make the decision and communicate it to your employees in your social media policy, so that everyone understands your culture and its impact on your social media expectations and limitations.

Oh, and go read The Circle. It’s fabulous.

Why we put plaintiffs to their proof

Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14), however, is much ado about nothing, but nevertheless reminds us of the importance of the process of litigation to the outcome of litigation.

John Vollene, a press room operator at World Color and member of his union’s bargaining committee, made several posts on his personal Facebook page critical of his employer. Vollene was Facebook friends with several co-workers, including his shift supervisor, Arvil Bingham. Shortly after Vollene’s posts, World Color’s employees voted to decertify the union. Shortly thereafter, the company reassigned Vollene as part of a restructuring of its pressroom operators. When Vollene asked Bingham why he was being reassigned, Bingham implied that management knew about his Facebook posts.

The NLRB concluded that Vollene had not proven that he had not been reassigned in retaliation for his Facebook posts, which could have constituted protected concerted activity:

However, the record here does not include a printout of Vollene’s posts, and it provides scant evidence regarding their nature. It reveals neither that the posts concerned terms and conditions of employment, nor that the posts were intended for, or in response to, Vollene’s coworkers. The testimony indicates only that Vollene posted unspecified criticisms of the Respondent and unspecified comments about the Union over a period of 5 or 6 months, and that he responded to another person’s initial post. The record does not identify that individual either by name or as a coworker. Based on this limited evidence, we will not infer that Vollene’s posts amounted to protected concerted activity. That Bingham’s statement implied that the Respondent had reacted adversely to critical posts is insufficient to bridge the evidentiary gap here.

Do not read too much into this decision. An employee’s Facebook posts critical of his or her employer can constitute concerted activity protected by section 7 of the NLRA. In this case, however, the NLRB concluded that because there was no evidence presented of the specific posts at-issue, or how Vollene’s co-workers responded to them. Thus, Vollene had not proven his case.

I have little doubt that if Vollene had put on evidence of the specific posts, and his co-workers reaction to them, this case could have turned out differently. This case serves as a good reminder of why we, as employers and their lawyers, put plaintiffs to their proof. A lawsuit is merely a collection of unproven facts. No law has been violated until a plaintiff  proves those facts through evidence. If the plaintiff doesn’t have the evidence to support the alleged facts, the plaintiff loses. That’s what happened here, which illustrates the importance of the litigation process to the outcome of cases.

Mind your internal emails to avoid discrimination issues

Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a “sex-plus” theory of discrimination to save a plaintiff’s race discrimination and sex discrimination claims from the summary-judgment scrap heap. “Sex-plus” recognizes that race and sex are not mutually exclusive, and protects African-American woman as a class of their own. I commend Shazor to your reading list for its interesting narrative on this issue.

I want to discuss, however, the other interesting aspect of Shazor—the evidence the plaintiff used to avoid summary judgment. She submitted various emails between two corporate executives, in which they unflatteringly referred to her as a “prima donna,” “disloyal, disrespectful,” and a “hellava bitch.” Shazor successfully argued that these emails were code for “angry black woman” or “uppity black woman.” The court used these emails as prima-facie evidence of discrimination in support of her “sex-plus” claim.

Emails is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

“I have a solution,” you say. “What about apps like Confide, which erases a text message as soon as the recipient reads it.”

While these apps seem like a perfect way to communicate under the radar, their use for business purposes gives me great pause. The intent of this class of apps is to delete communications. I could very easily see a court, confronted with evidence that people have this app on their iPhones and use it for business communications, have willfully destroyed evidence. Spoliation and evidence destruction discovery sanctions would result. For this reason, I believe that company mobile-device policies should police the use of apps like Confide, Snapchat, and their message erasing ilk. And, while your reviewing your policies, mix in some training for your employees about the responsible use of electronic communications.

Is obesity the same as a green mohawk?

It’s been a few months since I’ve written about the growing trend of plaintiffs trying to shoehorn obestity-discrimination claims under the Americans with Disabilities Act. At his Employer Handbook Blog, Eric Meyer brings us the story of Powell v. Gentiva Health Services, in which a 5’ 3”, 230 pound woman claimed that she was fired because her employer perceived her as disabled on account of her morbid obestiy.

The district court did not buy her argument, likening one’s obestity to a green mohawk:

Plaintiff’s argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an “undesirable” physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a “physical or mental impairment” within any rational definition of the phrase. 

The court continued, however, by envisioning a scenario in which weight could be an ADA-protected disability:

Of course, … an employer may perceive an employee’s overweight status to constitute a physical impairment. For example, suppose an employer believes that an overweight job applicant cannot climb a ladder, or walk across a parking lot, or climb flights of stairs, and therefore does not hire the overweight individual for a job that requires such activities. That might give rise to “regarded-as” status for an ADA claim in the post-ADAAA world. But that is not what we have here.… Powell points to not a shred of evidence that Gentiva viewed her weight as a physiological disorder that affected any of her body systems.  

Here’s where I think this court got this issue wrong. If making sales is an esential function of the job (and, given that Powell was a salesperson, it’s safe to assume that makes sales was an essential function of her job), then I don’t see how making sales is any different than climbing a ladder, at least as far as the ADA’s “regarded-as” scheme is concerned.

Powell did not lose her claim because the ADA does not protect obesity. Powell lost her claim because she had absolutely no evidence that her employer considered her obese, let alone considered her weight in making its decision to fire her.

Whether or not the ADA protects obesity as a disability is an issue that the courts will debate for years. While there is no clear answer, given the breadth of the ADA’s coverage, employers take a big risk when firing an overweight employee because of his or her weight. So, what’s the easy answer on how to handle this issue? Don’t take appearance into account when making employment decisions. Hiring and firing should be image-blind, performance-only decisions. If you stick to that principle, the obesity-as-disability debate should never enter your workplace.

WIRTW #308a (the “big block of cheese” edition)

Tomorrow marks the 177th anniversary of President Andrew Jackson opening the White House doors to the public to share his 1,400 pound block of cheese. You read that correctly. The President of the United States, (1) owned a 1,400 block of cheese; (2) which he kept in the White House; (3) the doors of which he opened to 10,000 Washingtonians; (4) who took all of two hours to devour it whole. Mental Floss has the entire story, which includes Old Hickory’s apparent love of all things cheddar.

Try to wrap your 2014 brain around that.

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

Discrimination

• Scales (Of Justice) Tip In Favor Of Employer On Overweight Employee’s ADA Claims — from The Employment Brief
• Gender-Neutral Employee Called “Miss” and “Lady” Files Lawsuit — from Phil Miles’s Lawffice Space
• What Can the ADA Do For You? Court “Delivers” Blow To UPS By Allowing EEOC’s Challenge To Its Leave Policy — from EEOC Year-End Countdown
• Prompt Handling Of Sex Harassment Complaint Keeps Safeway Safe — from The Employment Brief
• Does the EEOC Try To Intimidate Employers? — from Employment Discrimination Report
• She Looks Nice... Let’s Hire Her! — from Compensation Café
• 8th Circuit Holds "Stressed Out" Employee's Disability Discrimination Claims Fail When Nature of Job — from Wisconsin Employment & Labor Law Blog
• What’s a “sex-plus” claim? — from Warren & Associates Blog
• Am I Being Targeted For Layoff Due To My Age? — from Donna Ballman at AOL Jobs

HR & Employee Relations

• Miami Dolphins Investigation Good Example of Well-Done Internal Workplace Investigation — from WinWinHR
• Documents, documents, documents: What to keep, what to shred — from HR Hero Line
• There Were No Mice Available? Testing Noncompetes and Motivation in Settings That Don’t Sound Much Like Employment — from Currents: Hot Topics in Employment Law
• Waffle House Shows Atlanta How to Handle a Snowstorm — from You’re the Boss Blog
• Statistics Say We Should Take Friday Off From Work. All The Fridays, Forever And Ever. — from Upworthy

Wage & Hour

• What Happens At Home When Your Employee Takes FMLA Leave in Vegas? — from Dan Schwartz’s Connecticut Employment Law Blog
• Chefs and Employment Law: A Valentine’s Day Post — from Molly DiBianca’s Delaware Employment Law Blog
• 3 minor leaguers claim Major League Baseball violated the Fair Labor Standards Act — from Eric Meyer’s Employer Handbook Blog
• Donning and Doffing, Oh My. — from Michigan Employment Law
• Withholding Pay for Employees Who are Absent During Inclement Weather — from i-Sight Investigation Software Blog
• What does it mean to be salaried? — from Evil HR Lady, Suzanne Lucas
• If They’re Not On Your Payroll Do You Still Have to Pay Them Overtime??? — from The Emplawyerologist

Labor Relations

• Non-union employers should pay attention to the NLRB – here’s why — from Robin Shea’s Employment and Labor Insider
• Political Dirty Tricks Thwart Effort to Unionize Tennessee VW Plant — from Chris McKinney’s Texas Employment Law Blog
• Is a “new unionism” emerging in TN? — from The Human Race Horses
• Union THUGs Face the Fuzz — from LaborPains.org
• New NLRB rules coming, protests on the rise — from Mike Haberman’s Omega HR Solutions
• Past Practices: Usually Not an Employer’s Friend — from Matt Austin Labor Law

Do you know? OSHA protects employees from retaliation for reporting injuries

Like many states, Ohio has a statute that protects workers from retaliation for filing a workers’ compensation claim. But that statute is not the only one that protects the rights of employees injured on the job. OSHA also protects employees from retaliation for reporting workplace injuries.

Case in point: the U.S. Department of Labor recently filed suit against Ohio Bell, claiming that it wrongfully suspended 13 employees who had reported workplace injuries to their employer, according to the Cleveland Plain Dealer.

And, these cases are only becoming more prevalent. According to the Wall Street Journal, in the last decade the number of workplace injuries has decreased by 31 percent, while the number of retaliation claims stemming from workplace injuries has doubled. In other words, employees are getting hurt less, but claiming retaliation more.

The Plain Dealer article quotes Dr. David Michaels, assistant secretary of labor for occupational safety and health, “It is against the law for employers to discipline or suspend employees for reporting injuries.” I think we can agree with Dr. Michael that this type of retaliation is illegal and shouldn’t happen.

Let’s suppose, however, that this employer wasn’t disciplining employees for suffering on-the-job injuries, but instead was disciplining employees for violating established safety rules. Doesn’t an employer have a legitimate interest in enforcing its safety rules to deter future violations and create a safer workplace, even if it results in discipline or termination? How does an employer walk this line without arousing the DOL’s ire?

• For starters, you can treat all employees the same, based on the severity of the safety violation, and regardless of whether the injured employee self-reported the injury or not. Thus, you can start to build a case that safety, and not retaliation, guided your decision-making.

• And, you should make safety a priority. Have clear written safety rules for employees to follow. Train your employees on your rules and others safe-workplace principles. Institute regular safety meetings. Creating a workplace built around safety is not only better for your employees, but it will help you show that you prioritize safety, not retaliation, if an injured employee (or the government) brings suit.

In the meantime, know that the DOL is watching this issue, these types of claims are increasing, and you take a risk of a retaliation claim if you terminate an employee who reported a workplace injury.

Is there such a thing as online picket lines? Not according to the NLRB

When is a picket line not a picket line? Apparently when the protests take place online, at least according to the NLRB’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14) [pdf].

In the case, certain employees took to their union’s Facebook page to post threatened comments to co-workers who refused to participate in the union’s strike against their employer.

• Prior to the strike starting, one of the posts threatened, “THINKING of crossing the line. THINK AGAIN!” Sixteen people commented on that post, included one that wrote, “If u cross … you will lose your eyesight … from the 2 black eyes.”
• On the second day of the strike, another employee posted on the union’s Facebook page: “We found them!! We found out where they are housing the scabs.  We will be setting up lines at the hotel tomorrow.” Thirteen people comments on that post, including one that asked, “Can we bring the Molotov Cocktails this time?”

The employees argued that the union violated the National Labor Relations Act by not deleting or otherwise disavowing the statements posted on its Facebook page. The NLRB, however disagreed:

Respondent’s Facebook page is in no way “an electronic extension” of its picket line…. A picket line serves a purpose quite distinct from that of the Facebook page. A picket line proclaims to the public, in a highly visible way, that the striking union has a dispute with the employer, and thus seeks to enlist the public in its effort to place economic pressure on the employer….

In contrast, Respondent’s Facebook page does not serve to communicate a message to the public. To the contrary, it is private….

Unlike a website in cyberspace, an actual picket line confronts employees reporting for work with a stark and unavoidable choice: To cross or not to cross. Should someone acting as a union’s agent make a threat while on the picket line, the coercive effect is immediate and unattenuated because it falls on the ears of an employee who, at that very moment, must make a decision concerning the exercise of his Section 7 rights….

This decision displays a fundamental misunderstanding about social media. Nothing about social media is private. Is is public, interactive, and immediate. Even if the page on which the employees were posting was a “private” page or group, nothing stops employees from sharing the content via prints or screen caps. I am concerned that the agency that has taken such an active public stance regulating social media in the workplace appears to have such a fundamental misunderstanding about how this media operates.

Can you have a one-person reduction-in-force?

Yesterday’s New York Daily News ran the following headline: “Long Island man, 76, sues company for age discrimination after ‘workforce reduction’ of one man.” The article suggests that there is something nefarious or underhanded about a layoff of one.

In reality, provided the layoff is bona fide, the number of people included is irrelevant. What is a bona fide layoff? According to one Ohio court:

In determining whether a valid work force reduction occurred, the key inquiry is whether or not the employer replaced the plaintiff. If an employer did not replace the plaintiff, but rather consolidated jobs in order to eliminate excess worker capacity, then a work force reduction took place.

In other words, it’s not a question of quantity, but one of quality. It does not make a difference if the layoff includes one employee or 100 employees, provided that those eliminated are not replaced.

This distinction is not one without a difference. Whether a job loss qualifies as a reduction-in-force matters. Workforce reductions require plaintiffs to come forward with additional evidence (direct, circumstantial, or statistical) to support an inference of age discrimination. Otherwise, the employer’s legitimate non-discriminatory reason (the economic necessity for the layoffs) will carry the day.

So, New York Daily News, I take issue with your headline. Yes, it is perfectly legal to have a one-person layoff, provided it is bona fide, and not a subterfuge to hire younger.