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.

Stand by your employees: an ode to Norah and the Troopers

For the past nine months, my daughter has been taking guitar lessons at School of Rock in Strongsville. This past fall, we upped her from private lessons to the performance program, which, for the beginning students, is known as Rock 101. Her band started with four other kids, but quickly dwindled to just Norah, as the others bailed for various reasons. With a band of only one, the school initially suggested canceling the program for this session. Knowing my daughter, and believing both that she’d want to continue and would be comfortable even as the only child in the band, I asked that the show go on. And it did. And, what a show she gave this past weekend. Here are the results of her hard work.

I have some people to thank, and then I’ll get to the lesson of today’s post (so you don’t think I’m just using this space to shamelessly brag about the awesomeness of my 7-year-old daughter, playing to a standing-room-only house — and, yes, she was tears-to-my-eyes awesome). Thanks to John Koury, the GM of the Strongsville School of Rock, and Shelley Norehad, the school’s owner, for letting Norah do her thing, all by herself, and not cancelling the program as her band mates dropped out. Thank you also to Norah’s amazing guitar teacher, Ed Sotelo. And, finally, thank you Norah’s band: Kayleigh Hyland (bass, keys, and backing vocals, and also the Rock 101 director), Donald Pelc (guitar), and Dominic Velioniskis (drums).

Here’s the takeaway for employers. Stick with your employees, especially in times of difficulty and adversity. They might just surprise you, and may even do something amazing. It would have been very easy for School of Rock to decide that they couldn’t make money on a program of one, and tell us that Norah would have to wait until the Spring for her first Rock 101 experience. Instead, they embraced the enthusiasm and work ethic of a 7-year-old girl and let the show go on. As a result, they allowed her to walk off the stage with a club full of strangers chanting her name. (Contact me for booking info).

WIRTW #304 (the “happy life” edition)

I sometimes use this weekly space to get personal. Today will be one of those posts.

My 5-year-old son, Donovan, was born with Noonan Syndrome. NS is a variably expressed, multisystem genetic disorder, occurring in every 1 in 1,000 – 2,500 births. In Donovan’s manifestation, he has, among other things, pulmonary valve stenosis and a platelet function disorder, and is, and will likely always be, small in stature (although given that I’m not quite 5’ 7” and my wife not quite 4’ 11”, the genetic height cards were stacked against him anyway). We are extraordinarily thankful that Donovan seems to have dodged the developmental and learning disorders that can occur. As we have learned in the five years since his diagnosis, however, something new is always around the bend. (For more information on Noonan Syndrome, please visit the website for the Noonan Syndrome Foundation, an organization to which I am proud to volunteer my time as its outside counsel.)

A few months ago Donovan caught some of Life According to Sam, the stunning and moving HBO documentary chronicling the life of Sam Berns, his struggle with Progeria, and his family’s quest for better understanding of, and cure for, this rare genetic disorder. Donovan, whose television diet usually revolves around SpongeBob and Pixar, became transfixed by this very adult story. After watching most of it in silence, he turned to my wife and me and asked, “Am I going to die like that boy?” It was our first real glimpse that Donovan has an understanding of the medical issues with which he lives.

Last Friday, Sam Berns died. A few months before his passing, he gave a Ted Talk, entitled, My Philosophy for a Happy Life. It is well worth 12:45 of your time.

We should all embrace the small things, and live a happier life as a result.

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

Discrimination

• Can Sexual “Banter” Morph Into Sexual Harassment? The Stakes Are High — from Employment Discrimination Report
• Planning to fire expectant mom? Prove problems predated pregnancy — from Business Management Daily
• Counter-Intuitive Employment Law: When Should You Tell an Employee to Talk to an Attorney? — from Minnesota Employer
• Punter’s legal claims may be blocked — from EntertainHR
• When gossip becomes harassment — from EmployerLINC

Social Media & Workplace Technology

• How to Respond to a Social Media Crisis — from Social Media Examiner
• Should You Share Your Employees’ Sins on Twitter? — from Inc.com

HR & Employee Relations

• In 2014, Resolve to Make Your Business Human Again — from Harvard Business Review
• Be Nice to Everyone. It’s Worth It — from Evil HR Lady, Suzanne Lucas
• 2014 HR Compliance Guide — from ERC Insights Blog
• “I QUIT!!! There’s an app for that too!?! — from Michigan Employment Law
• Why A-Rod Will Strikeout on His Appeal and What Employers Can Learn — from Dan Schwartz’s Connecticut Employment Law Blog
• What Chris Christie’s traffic scandal can teach us about workplace culture — from Warren & Associates Blog
• Three workplace lessons from Chris Christie’s “Bridgegate” — from Robin “Shea’s Employment and Labor Insider
• 6 Things That Should Go into Your Anti-Bullying Policy — from i-Sight Investigation Software Blog

Wage & Hour

• Worrying About Lawsuits? You Should Be Focusing on Compliance Instead — from TLNT
• General Managers Beware: You Might Have to Pay Up — from Corporate Counsel
• “Lawsuits—I Get It! But What Should We DO?” — from Wage and Hour Laws Blog
• Time Spent Dressing and Undressing for the Job is “Work”?! — from The Emplawyerologist
• If weather keeps employees from work, must they be paid? — from MonsterThinking
• FMLA FAQ: Can Excess Trips to the Potty Be Counted as FMLA Leave? — from Jeff Nowak’s FMLA Insights

Labor Relations

• Separation of Powers Dominates Noel Canning Arguments Before the Supreme Court — from Labor Relations Today
• Noel Canning and Recess Appointments — from Concurring Opinions
• Four reasons why Noel Canning still matters in a post-nuclear world — from Constitution Daily

Separation of protected activity and discipline can protect employers from retaliation claims

Can an employee succeed on a retaliation claim if the decision maker did not know about the alleged protected activity at the time the employer decided to terminate? The answer, according to McElroy v. Sands Casino (E.D. Pa. 1/9/14), is no.

Darryl McElroy, a dealer at the Sands Casino, submitted his FMLA request to the employee in Defendant’s human resources department who deals with benefits inquiries, Stacey Berasley. As was her practice, Berasley sent the claim to the company’s outside third-party benefits administrator, for a determination on the FMLA request. She did not tell anyone at the company about McElroy’s request for FMLA leave. Two months later, the company fired McElroy for harassing a co-worker. Berasley played no role whatsoever in the termination. McElroy claimed the termination was in retaliation for his FMLA request. The court disagreed, and dismissed the FMLA-retaliation claim.

But there surely can be no causal relationship between an FMLA request and a termination, and any temporal proximity cannot be considered suggestive, if the party making the termination decision had no knowledge of the FMLA request…. Here, none of the individuals involved in Plaintiff’s termination knew about his FMLA inquiry…. The record indicates that only Berasley knew about Plaintiff’s FMLA inquiry, and she has declared, “As is my practice with all questions regarding FMLA leave, I did not tell anyone in the Human Resources department or any of Mr. McElroy’s managers about his inquiry.” Nothing in the record could support a jury’s determination that anyone else knew; therefore, the retaliation claim fails as a matter of law.

In a perfect world, every company would operate like the employer in this case, with a separate department to handle FMLA request, which, in turn, minimizes the risk that a decision maker will learn of an FMLA request before taking an adverse action. As we all know, however, our world is far from perfect. Your organization might not be big enough to enjoy this luxury, or, maybe the employee tells someone other than an FMLA administrator of a need for FMLA leave.

Whatever the case, you can help insulate your company from retaliation claims by training your employees to treat FMLA requests (and other instances of protected activity) as need-to-know. The less people who know that an employee asked for FMLA (or made a harassment complaint, or filed an EEOC charge…), the better you will be to claim that the decision maker had no knowledge of the protected activity.

You can’t always get what you want … but even when you do it’s an “adverse employment action”

Suppose an employee applies for a transfer to an open position. The company decides to hire an external candidate and passes on transferring the employee. Yet, when the same position again becomes vacant nine months later, the company involuntarily transfers that same employee into the position. Is the transfer to the very same position (with the same pay, benefits, prestige, and responsibility), for which, just nine months earlier, that employee had applied, an “adverse employment action” sufficient to support a claim of discrimination?

Amazingly, in Deleon v. City of Kalamazoo (1/14/14) [pdf], the 6th Circuit answered, “Yes.”

[A]n employee’s transfer may constitute a materially adverse employment action, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability…. [W]e conclude that Deleon has met his threshold at the summary judgment stage…. Deleon provided evidence that he was exposed to toxic and hazardous diesel fumes on a daily basis. He testified further that he had to wipe soot out of his office on a weekly basis. As a result, Deleon claims that he contracted bronchitis, had frequent sinus headaches, and would occasionally blow black soot out of his nostrils….

We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”

There is so much wrong with this opinion that I don’t know where to start. Perhaps the best place is Judge Sutton’s scathing, common-sense dissent, which ends thusly (as will today’s post):

Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer…. An interpretation of the retaliation laws that subjects employers to liability coming and going—whether after granting employee requests or denying them—will do more to breed confusion about the law than to advance the goals of a fair and respectful workplace. Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.

You might be a defendant if … you ask applicants for a family medical history

According to this press release, a New York nursing and rehabilitation center will pay $370,000 to settle a genetic discrimination lawsuit filed by the EEOC. The EEOC claimed that the employer asked job applicants for a family medical history as part of its post-offer, pre-employment medical exams.

The ADA permits employers to conduct medical exams after an employer makes a conditional job offer, but before the employee starts work, as long the employer does so for all entering employees in the same job category. Whether or not an employer can gather a family medical history as part of this post-offer/pre-employment exam, the Genetic Information Nondiscrimination Act, which prevents employers from requesting genetic information or making employment decisions based on genetic information, renders family-medical-history collection illegal.

Medical-related inquiries by employers are complicated and rife with risk. To ensure full compliance with the law, do not include questions about family histories in these examinations. Otherwise, in the words of EEOC New York District Director Kevin Berry, “There are real consequences to asking applicants or employee for their family medical history. The EEOC will pursue these cases to the fullest extent of the law to ensure that such genetic inquiries are never made of applicants or employees.”

Cursing as religious harassment—context matters

With The year was 1985. I was 12 years and spent the summer at overnight camp. When you spend 8 weeks alone in the woods with a dozen other 12-year-old boys, you curse, a lot. After 8 weeks of “f-this” and “f-that,” it shouldn’t have surprised my parents when, at the dinner table on my first night home from camp, seeking my seasoning on my meal, I asked my mom to “pass the f***king salt.” Needless to say, they were very surprised, and very un-amused.

I thought of this story after reading Griffin v. City of Portland (D. Ore. 10/25/13) (h/t: The Blue Ink), a case in which an employee of deeply religious convictions claimed religious harassment based, in part, on her co-workers’ repeated taking of the Lord’s name in vain.

The court concluded that a line exists between the use of general profanity in the workplace and the use of profanity directed at the plaintiff because of her religion:

The record suggests that Parks and Recreation employees at the Mt. Tabor yard frequently used profanity out on the yard and in the office. Suggestions in the record that profanity was used even when Ms. Griffin was not present indicate that much of it was not motivated by her religious beliefs. As I interpret the guiding precedent, even the category of profanity that uses “God” or “Jesus Christ” as part of a curse does not necessarily trigger the “because of” standard. If the speaker used the terms out of habit, perhaps without even thinking of their religious connotations, and not because of Ms. Griffin’s beliefs, then such language would not satisfy the “because of” standard and could not be used to support the claim.

With language, context matters. For example, it was okay to use salty language to ask for the salt at summer camp; at the dinner table with my parents, not so much. Similarly, Ms. Griffin’s employer will skate on her harassment claim if she cannot prove that her co-workers cursed “because of” her religion.

Nevertheless, employers should take seriously all harassment complaints in the workplace. If an employee complains about profanity, don’t ignore the complaint. Most cases of workplace profanity won’t turn into a lawsuit. Nevertheless, when it rears its head, use it as a tool to educate your employees appropriate versus inappropriate language, the value of context when choosing words, and the importance of being tolerant and considerate around all employees.

WIRTW #303 (the “toilet humor” edition)

True story. I just learned of a company (not a client) that maintains two sets of bathrooms—one for its “office” employees and one for its “warehouse” employees—and never the twain shall meet. The company forbids the warehouse workers from using the office restrooms. I’m not sure if the converse is also true, but given the air of snootiness that would lead to such a policy in the first place, I doubt management would grace the warehouse restroom with its presence.

Do I need to tell you that you are sending the wrong message to your workers if you have class-segregated bathroom? Or, am I off-base?

Readers, what do you think?

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

Discrimination

• 2 weird sexual harassment cases, with 8 lessons for employers — from Robin Shea’s Employment and Labor Insider
• Workplace Sexual Harassment Includes Sexual Harassment In The Corridor — from Employment Discrimination Report
• You’re Damned if You Don’t Settle Meritorious Discrimination Cases — from damnedif
• Judge slashes jury award for black plaintiff called the “N”-word—by her black boss — from Eric Meyer’s The Employer Handbook Blog
• Temporary Illnesses Or Conditions May Be Covered By The ADA/ADAAA — from Atlanta Employment Lawyer Blog
• “Hang Up Your Superman Cape” and Age Discrimination: 8th Circuit Reverses Grant of Summary Judgment — from Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• Employment Lawyer Predicts the Future. What Happens Next Will Restore Your Faith in Humanity. — from Dan Schwartz’s Connecticut Employment Law Blog
• Social media misbehavior may (or may not) be enough for termination — from Technology for HR
• Why you should never hire anyone based on their Facebook profile — from Boy Genius Report
• Facebook Isn’t Actually A Good Way To Judge Potential Employees, Say Researchers — from The Not-So Private Parts
• Study: Facebook Profile Alone Isn’t Good Hiring Barometer- Duh! — from employeescreenIQ Blog
• Next Big Practice Area: Privacy Class Action Lawsuits? — from Technologist

HR & Employee Relations

• How to Be a Family-Friendly Boss — from Harvard Business Review
• Why Valve doesn’t care if you take a sick day — from The Verge
• Revise Your Handbook to Minimize Employee Misconduct This Year — from i-Sight Investigation Software Blog
• Can You Fire an Employee For Applying For Unemployment Benefits? — from Minnesota Employer  
• Should we disparage non-disparagement clauses? — from Minding the Workplace
• 7 high school lessons that hold true in the workplace — from Ragan.com

Wage & Hour

• If My Office Is Closed For Snow, Do I Get Paid? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Employee Training: Paid or Unpaid? — from Wage & Hour Defense Blog
• Do Sales People + Salary/Wages + Commissions (Still) = Overtime? — from The Emplawyerologist
• Where Defendant Retains Right to Reject Contracts Obtained by Door-to-Door Solicitors, Otherwise Allowed by Law to Enter Into Contracts, Outside Sales Exemption Inapplicable — from Overtime Law Blog
• Ohio Minimum Wage has increased to $7.95 per hour — from Business, Employment and Real Estate Law in Ohio
• A Triple Dog Dare: Take These Five Steps in 2014 to Drastically Improve Your FMLA Compliance — from Jeff Nowak’s FMLA Insights

Labor Relations

• 7 Tests to Tell if You Have Just Cause to Fire — from Corporate Counsel
• Union’s Rejection of Company’s “Final” Proposal Does Not Always Signify Impasse — from New York Labor and Employment Law Report
• NLRB Finds Lawful Email Policy Used Unlawfully Against Union Members — from Matt Austin Labor Law
• RIP NLRB Poster Requirement — from from Phil Miles’s Lawffice Space
• If You Saved that NLRB Poster You Can Now Throw it Away! — from Mike Haberman’s Omega HR Solutions
• The NLRA Rights Poster Lives on Through Other Means — from Labor Relations Update

   

Blackballing as retaliation

Do you remember Diana Wang, the unpaid intern who sued Hearst Corporation, claiming that the publisher violated that Fair Labor Standard Act by not paying her? Two years later, she claims that she cannot find work as a result of her lawsuit.

Let’s break this down. Filing a lawsuit claiming a violation of the Fair Labor Standards Act (or Title VII, or the ADA, or the ADEA…) is protected activity. Refusing to hire someone who engaged in protected activity is illegal retaliation. Ergo, refusing to hire someone who filed a lawsuit claiming a violation of the FLSA (or Title VII…) is illegal retaliation.

So, if Ms. Wang can prove that prospective employers are not hiring her because of her prior lawsuit against a former employer, then she would have a good retaliation claim. Hunches, however, do not equal proof, and, the proof, as they say, is in the pudding. It may be that other applicants are more qualified. Or, it may be that employers are wary of hiring a qualified, but litigious, employee.

Employers don’t like getting sued. Therefore, it makes sense that they want to minimize their risk of getting sued by not hiring employees who show a propensity to sue other employers. Employers need to understand, however, that such a rationale is retaliatory, and could result in the very lawsuit they are trying to protect against—provided, of course, that the applicant can prove the prior lawsuit was the reason (or a motivating factor, depending on the nature of the underlying protected activity) for the failure to hire.

What’s the answer for businesses? Hire blind. Not every lawsuit will be as highly publicized as Ms. Wang’s. If you are going to search applicants’ backgrounds for civil lawsuits, limit the search to lawsuits that relate to the job (lawsuits against the applicant involving issues of dishonesty, for example). If you don’t look for protected activity, you will be able to insulate yourself from a retaliation claim that could result from it. And, if you happen to come across a lawsuit against an ex-employer in an applicant’s past, do the right thing and ignore it. Hire based on ability and qualifications, not litigiousness and fear.

Tread lightly if banning workplace gossip, says NLRB Judge

I recently came across a blog post that answered the question of how to deal with workplace gossip. One solution you might want to avoid is a policy banning it outright, at least according to the recent opinion of an NLRB Administrative Law Judge in Laurus Technical Institute [pdf].

Laurus distributed a no-gossip policy to its employees. Among other non-work-related prohibitions, the policy prohibited employees from “talking about a person’s professional life without his/her supervisor present.” It also bans any discussion of one’s personal life outside of one’s presence, any disparaging comments or criticism of another, or the creating, sharing, or repeating of rumors about another or of information that could damage another’s reputation or credibility.

The ALJ concluded that this policy was vague and overly-broad, and therefore illegal under Section 7 of the National Labor Relations Act.

It narrowly prohibits virtually all communications about anyone, including the company or its managers. In fact, read literally, this rule would preclude both negative and positive comments about a person’s personal or professional life unless that person and/or his/her supervisor are present. Such an overly broad, vague rule or policy on its face chills the exercise of Section 7 activity, and violates Section 8(a)(1).

It’s been argued that the private workplace is where free speech goes to die. And it’s true that employees in the private sector do not have free-speech rights. Yet, the NLRB, through its activist interpretation of Section 7’s protected concerted activity rights are trying to change the rules. 

The no-gossip rule in Laurus Technical Institute was innocuous. On its face, it was attempting to cure the corruption, distraction, and moral-sapping caused by gossip among employees. No employee could reasonably read that policy to affect discussions about wages, hours, and other terms and condition of employment. Yet, the ALJ still used Section 7’s reach to invalidate the rule.

Until the NLRB reaches a more reasonable stance on this issue, employers need to tread carefully, and consult with counsel, about any policy that reaches workplace speech. In the meantime, if gossip among employees is a pervasive problem harming your workplace, but you are wary about being in the NLRB’s crosshairs, consider training your employees about the evils of gossip and the meaning of a respectful workplace. This training will likely pay a better dividend than a policy statement in a handbook that most employees probably ignore, or never read in the first place.

A weighty lesson on pregnancy discrimination

It’s the first full week of January, which means that lots of people are attempting to execute on their New Year’s resolutions. Many of those resolutions will focus on weight loss. What if your company does the same, and decides, for wellness or other reasons, not to hire anyone over a certain weight? If your company is in the business of weight loss, like Weight Watchers, for example, such a policy makes a lot of sense. What if, however, that policy results in your company refusing to hire a pregnant woman? Does your “no overweight hires” policy violate Title VII by screening out pregnant women?

According to EEOC v. WW Group (E.D. Mich. 12/2/13), the policy fails as violating Title VII’s proscription against pregnancy discrimination:

On the facts of this case, a reasonable juror could conclude that Broughton’s weight gain putting her above her goal weight was solely attributable to her pregnancy, that this weight gain was totally unrelated to her ability or inability to perform the job (as evidenced by the fact that WW permits pregnant group leaders to continue to conduct group meetings) and that she was wrongly denied the right to apply for a position with WW.

In this case, however, WW’s policy did not cause it’s downfall. WW caused its own downfall through its uneven adoption of two conflicting policies. The EEOC challenged WW’s refusal to hire Wendy Lamond-Broughton as a group leader or receptionist because her pregnancy caused her to weigh-in over her goal weight. According to WW, there are “legal, moral, and ethical reasons” not to hire Broughton, because the public will question its credibility as a company if its own employees appear not to be following the program. Yet, WW does not apply the same rules to those it already employs. If a current employee weigh in over their goal weight as a result of pregnancy, WW does not terminate them, but instead permits them to work until a doctor says otherwise. Thus, because current pregnant, overweight employees can keep their jobs, the “legal, moral, and ethical” business justification for refusing to hire Broughton falls apart.

This case has a lesson deeper than merely, “Don’t have a policy that screens out pregnant women.” If you are going to have such a policy, make sure that you can justify its existence. If WW refused to allow anyone over their goal weight to work for the company, then this case would have ended differently. Once, however, WW allowed some overweight pregnant women to work, it lost the ability to argue that a legitimate, non-discriminatory business reason supported its decision not to hire Broughton.

It’s time to update your severe-weather policy

How bad is the weather going to be in Cleveland today? It’s so cold that even the Horseshoe Casino is closed. You can’t even get hot at the tables.

In light of these historically frigid temperatures, I’m re-sharing a post I ran all the way back in 2010 on workplace severe-weather policies, including including how to handle issues such as attendance, wage and hour, and telecommuting:

1. Communication. How will your business communicate to its employees and the public whether it is open for business or closed because of the weather? Are there essential personnel that must report regardless of whether the facility closes? Phone chains, email blasts, text messages, and even social media updates are all effective tools to communicate this essential information.
2. Early closing. If a business decides to close early because of mid-day snowstorm, how will it account for the orderly shut-down of operations? Which employees will be able to leave early and which will have to remain to ensure that the facility is properly closed? Is there essential crew that must stay, or is there an equitable means to rotate who must stay and who can leave?
3. Wage and hour issues. To avoid jeopardizing exempt employees’ status, they should be be paid their full salary when a company closes because of weather. For non-exempt employees, however, it is entirely up to the company whether to pay them for a full day’s work, for part of the day, or for no hours at all. Will employees have to use vacation or other paid time off if they want to be paid for the day, or will the company consider it a freebee? If your company closes but an employee does not get word and reports to work, will the company pay that employee anything for reporting?
4. Attendance. Will the absence be counted against employees in a no-fault or other attendance policy, or defeat any perfect attendance bonuses?
5. Telecommuting. If your area has frequent bouts of severe weather, consider whether you want to allow employees to telecommute. Even if your business does not typically permit employees to work from home, exceptions for exceptional weather could potentially save you lost productivity.

Please be safe and stay warm.

WIRTW #302 (the "peace and quiet" edition)

It’s been a nice couple of weeks of relative peace and quiet (or at least as much peace and quiet as one can get in one’s house during winter break).

While we’re on the subject of peace and quiet, Santa left my 7-year-old a karaoke machine under the tree. And, no, we’re not crazy. It lets her practice for her upcoming debut, which will take place at Brother’s Lounge on January 19. If you’re in the neighborhood, please stop by at 2 pm and check her out. “What will we hear,” you ask? You’ll hear my girl playing lead guitar and singing lead vocal on this eclectic setlist:

• Pork and Beans — Weezer
• The New Kid — Old 97s (one the best songs you’ve probably never heard)
• Living After Midnight — Judas Priest

And, lest you still think I’m crazy by giving Santa the thumbs-up on the karaoke machine, here’s a sample from a recent band rehearsal (yes, I’m bragging; it’s my right as a dad).

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

Discrimination

• Plaintiff Who Was “Pantsed” Appeals Six-Figure Verdict in His Favor — from Lowering the Bar
• Within Employment Discrimination, It’s a Wage-and-Hour World — from WSJ.com: Law Blog
• Those nice people who file ADA suits — from Walter Olson’s Overlawyered
• Checking it Twice? EEOC Offers Further Discussion on Criminal Background Checks — from All in a Day’s Work

Social Media & Workplace Technology

• Incorporating Anti-Harassment into Your BYOD Policy — from HR Daily Advisor
• Offensive Tweets and Twitter Justice: The Tale of Justine Sacco for Employers — from Dan Schwartz’s Connecticut Employment Law Blog
• Sacco tweet summons social media mob — from The Evil HR Lady, Suzanne Lucas
• So your public relations executive just tweeted a racist joke that went viral... — from Eric Meyer’s The Employer Handbook Blog
• Justine Sacco’s Nightmare Before Christmas, Twitter-Version — from The Not-So Private Parts

HR & Employee Relations

• Just Because Duck Dynasty’s Phil Robertson Survived Doesn’t Mean You Have Free Speech At Work — from Donna Ballman’s Screw You Guys, I’m Going Home
• Of Ducks and Men - Duck Dynasty and the Misunderstanding of Religious Discrimination and First Amendment Right in the Workplace — from Michigan Employment Law Advisor
• The Greatest Response To A Cease And Desist Letter, Probably Written While Drunk — from Above the Law
• Suing Your Employer? Be Respectful About It — from Corporate Counsel
• Not in My Backyard: Bringing Claims Against Employees In the Corporate HQ’s Home State May Not Be as Easy As You Think — from Technology Company Counselor
• The Inbox, What Kind Of Severance Do The Lords-A-Leaping Get Edition — from Suits by Suits

Wage & Hour

• Employers Must Be Wary On Docking Exempt Employees For Snow Day Absences — from Wage & Hour - Development & Highlights
• Does your company’s year-end bonus create an FLSA overtime issue? — from Employment Law Matters
• What?! You May Have to Pay Your IT Employees Overtime?! — from The Emplawyerologist
• Huge Settlement in FLSA Bank of America Case Highlights Prudence of Getting Out Early — from Wage & Hour - Development & Highlights

Labor Relations

• Make Sure Your Labor Lawyer Knows About Johnnie’s Poultry — from Matt Austin Labor Law
• A holiday gift from the NLRB to employees — from HR Hero Line

Lessons from children’s lit: A New Year’s resolution

Among the toys and the clothes, my kids always receive books for Christmas. This year, the books included The Day the Crayons Quit. This book tells the story of a boy’s box of crayons, and the colors inside that have quit their jobs, each for a different reason. Blue no longer wants to be known just for bodies of water. Black is tired of outlining objects to be filled in by other colors. Yellow and Orange are no longer speaking to each other, each believing it is the true color of the sun. And Beige, his wrapper having been peeled off, is too embarrassed to exit the box naked. It’s a very clever book, and the sounds of both my kids cackling during it’s telling is their gift to me.

The lesson to draw from this story is important for all employers to take to heart. Employees are unique. Each has his or her own personality, needs, and wants. For this reason, an employer cannot treat all employees the same. To appease Black by re-wrapping it will not address its concern of only being used for outlining, and by using Beige to fill in the ocean will not fix its fear of being naked. Similarly, your employee-mother-of-two is going to value flexibility and work-life-balance a whole lot more than a 22-year-old employee fresh out of college.

This year resolve to learn what makes each of your employees unique. Resolve not to treat your employees as fungible commodities, but as special assets, each with his of her own talents and concerns. Recognizing each employee’s individuality will result in a more engaged workforce, which, in turn, will repay you with happier, more productive, and more loyal employees.

The 12 Days of Employment-Law Christmas

This time last year, I published a song, “The 12 Days of Employment Law Christmas.” In the last year, though, I’ve gained a lot of new readers. So, since Christmas is almost upon us, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2013. I’ll see everyone with fresh content on January 2.

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(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Merry Christmas!

WIRTW #301 (the “shattered dreams” edition)

When I was 9 years old, I ruined Christmas for a neighbor when I spilled the beans that Santa Claus wasn’t real. I still feel bad about it to this day.

Flash forward thirty years. Buzz Lightyear has played a huge role in my family. He’s my 5-year-old son’s hero. He helped get Donovan through some tough medical issues in his young life. To Donovan, Buzz is very real … or was very real until his Kindergarten teacher thought it was a good idea to share with the class that the characters at Disney World aren’t real, but just people wearing costumes.

I was stunned. Where the hell does anyone get the right to ruin my kid’s dream. If he wants to think Buzz Lightyear is as real as President Obama, who am I to say otherwise. What’s the harm in a little boy having a dream? When did kids stop having the right to be kids?

After talking to the teacher, I learned that it’s part of the “common core curriculum” to discuss the difference between real and imaginary, and some of the kids asked about Disney as an example. Could she have handled it differently? Absolutely. Should have softened the blow or deflected the question so that the kids who still want to believe in the Disney magic can do so? Yup. Regardless, I remain bummed that part of my child’s childhood has been taken away.

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

Discrimination

• Smoking: Many States Try Snuffing Out Employment Bias Against US Smokers — from Employment Intelligence
• Telling An Employee They Need to Lose Weight is NOT Discrimination — from TLNT

Social Media & Workplace Technology

• The Spy Who Loved Me? IKEA and Surveillance Laws — from Dan Schwartz’s Connecticut Employment Law Blog
• Ownership of Business-Related Social Media Accounts — from Socially Aware Blog
• Does BYOD = Bring Your Own Dangers? — from Corporate Counsel
• Employee Owned Tablets and Technology Devices: Managing the Risks and Rewards Starts with BYOD Policy — from Jason Shinn’s Michigan Employment Law Advisor
• Non-competes in the world of social media: LinkedIn notifications are not “solicitation” — from Warren & Associates Blog

HR & Employee Relations

• The Risk of Fishing for Support in an Employee Discipline Matter — from Molly DiBianca’s Delaware Employment Law Blog
• Sometimes you have to fire your “star.” Here’s why. — from Robin Shea’s Employment and Labor Insider
• Next Year’s Headache for Employers — from Jottings By An Employer’s Lawyer
• What A Christmas Party Can Reveal About Company Culture — from Compensation Café
• Crowdsourcing Illustrative Examples of “At-Will Employment” — from Workplace Prof Blog
• Can My Employer Trash Me In References? 6 things you need to know about job references — from Donna Ballman’s Screw You Guys, I’m Going Home
• Never Say Goodbye to a Great Employee — from Harvard Business Review

Wage & Hour

• Wage and Hour Compliance: Look Out, Here Comes 2014! — from Workplace Insights
• Supreme Court May Hear FLSA Case Finding Owner Personally Liable For FLSA Violations — from Overtime Lawyer Blog
• To Moot Or Not To Moot—The First FLSA Case In Texas To Grapple With The Genesis Healthcare Ruling — from The Wage and Hour Litigation Blog
• Wage & Hour Division Obtains Nearly $250 Million in Back Wages — from The Wage and Hour Litigation Blog
• Can Employees Sue Over 401(k) Losses? Supreme Court to Decide — from WSJ Law Blog
• SCOTUS on ERISA Plan Limitations Provisions — from Phil Miles’ Lawffice Space
• Two Ohio Cases Highlight That When It Comes to the FMLA, Employers Need to Set Their Radars to Detect Potential Interference Claims — from Employer Law Report

Labor Relations

• NLRB’s New Top Attorney Threatens to Overturn Employer-Friendly E-Mail Decision — from The Blue Ink
• Department of Labor’s Persuader Rule Postponed to March 2014 — from Labor Relations Today
• Employers Beware: 2014 NLRB is Unrestrained and Ready for Activism — from Employment Law Watch
• What is “Just Cause” Termination for Unionized Employees? — from Minnesota Employer

Accuracy counts in drafting job descriptions (a lesson on ADA reasonable accommodations)

Do you have written job descriptions for all of your employees? Henschel v. Clare County Road Commission (6th Cir. 12/13/13) illustrates that if you’re going to claim that a job function is essential, you should probably include it in a written job description.

Wayne Henschel worked as an excavator operator for Clare County Road Commission. He lost his left leg above the knee in a motorcycle accident. His employer refused to permit him to continue operating the excavator, claiming that the ability to haul the excavator to the job site was an essential function of the position. Among the factors that the court of appeals used to reverse the trial court’s grant of summary judgment to the employer on Henschel’s ADA reasonable accommodation claim was the fact that it had omitted the hauling function from its Operator-Excavator job description.

Whether a job function is included in a job description is only one of seven factors courts consider in determining whether that function is essential to the job:

1. The employer’s judgment as to which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of a collective bargaining agreement;
6. The experience of past incumbents in the job; or
7. The current work experience of incumbents in similar jobs.

In this case, the exclusion of hauling from the Operator-Excavator job description was not dispositive in the case, but it certainly didn’t help the employer’s cause.

Here are the practical takeaways for employers:

1. You should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also helps set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions.

2. Accuracy counts. It is hard to establish a job function as essential if it’s omitted from a written job description.

3. Conversely, just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors cut against you, you’ll have a hard time showing that a job function is essential no matter what your document says.

4. As jobs change, so should their written descriptions. It’s not enough to file away a job description after it’s prepared. You should periodically review it to make sure it’s current, and updated when needed because of changes to the job.

FAMILY Act would provide paid leave for employees

Tony Soprano once said, “Family: they’re the only ones you can depend on.” If Congressional Democrats get their wish, American workers will be able to depend on the FAMILY Act to provide up to 12 weeks of paid leave each year for the birth or adoption of a new child, the serious illness of an immediate family member, or a worker’s own medical condition.

Late last week, Representative Rosa DeLauro (D-CT) introduced H.R. 3712—the Family and Medical Insurance Leave Act of 2013 (aka, the FAMILY Act).

Five years ago, Ohio tried to enact its own paid sick leave law—the Healthy Families Act. At that time, I strongly opposed the OHFA, not because I’m against paid leave for employees, but because it was expensive for employers and would have labeled Ohio as unfriendly to businesses.

Here’s the key difference between the FAMILY Act, and Ohio’s old plan. The paid leave employees would receive under the FAMILY Act does not come out of ordinary payroll. It’s essentially an insurance benefit, paid by a nominal 0.2 percent payroll tax shared equally by the employer and the employee. As a result, employees would be eligible to collect paid-leave insurance benefits equal to 66 percent of their typical monthly wages, with a capped maximum of $1,000 per week for up to 12 weeks per year.

This solution seems like a win-win. The United States remains the only industrialized nation that does not guarantee working mothers paid time off after childbirth. This legislation would bring us up to par with the rest of the civilized world without imposing a significant monetary penalty on employers. I expect partisan lobbying on this bill, which could prevent it from progressing. That would be a shame, since I view the FAMILY Act as a business-friendly approach to solving one of our workplaces’ nagging problems.

[Hat tip: Eric Meyer]

Does the ADA cover organ donors?

Every now and again I come across a case that offends my sensibilities. Rope v. Auto-Chlor Sys. of Wash., Inc. (Cal. Ct. App. 10/16/13) is one of those cases.

When Auto-Chlor hired Scott Rope as a branch manager in September 2010, he told his new employer that he planned to donate a kidney to his physically disabled sister in February 2011. In November 2010, he formally requested a 30-day leave of absence for the kidney donation and his recovery thereafter. His manager promised to “look into it.” Instead, on December 30, 2010, he fired Rope.

The court had little issue concluding that Rope’s disability discrimination claim could proceed. “Rope has thus met his burden to show the adverse employment action occurred under circumstances raising a reasonable inference that the disability of his or her relative or associate was a substantial factor motivating the employer’s decision.”

A few points to consider about this case:

1. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. Thus, Rope could not claim that Auto-Chlor discriminated against him by denying time off as a reasonable accommodation.

2. California has a specific statute that requires 30 days of paid time off “to an employee who is an organ donor … for the purpose of donating his organ to another person.” Rope claimed that Auto-Chlor terminated him avoid having to incur the expense of his paid leave pursuant to that law, which, in turn, equated to disability discrimination. The court agreed.

3. Even without this specific organ-donation statute, however, the ADA likely nevertheless requires time off (albeit unpaid) for organ donation and the recovery thereafter. The ADA mandates that an employers avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

I’ve written before about the need to put the “human” back in “human resources.” This case is a textbook example. When Auto-Chlor hired Rope, it knew: (1) he had disabled sister, and (2) he needed time off to donate a kidney to her. Is is inconvenient for an employer to provide a month off to a new employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of that leave request? Absolutely not. This decision is likely illegal, but it is also undoubtedly inhuman. It is that inhumanity that will cost your company dearly in front of a judge or a jury.

[Hat tip: HR Morning]

Is infertility fertile grounds for disability discrimination claims?

I’ve written before about employers getting themselves in trouble for pregnancy discrimination for firing employees while undergoing fertility treatments (here and here). Last week, the EEOC announced the settlement of case involving a different kind of “infertility” discrimination—the Americans with Disabilities Act.

A Hawaiian resort retailer will pay $60,000 for discriminating against an employee because of her fertility treatments and eventual pregnancy.… According to the EEOC’s suit, a female retail buyer in Honolulu informed the company that she began treatments for infertility in 2011. Upon disclosure of her disability, a company official allegedly made offensive comments about her intentions and became even less receptive upon disclosure of her pregnancy later that same year. The buyer was disciplined after disclosing her need for fertility treatments, and then discharged.… 

Timothy Riera, director of the EEOC’s Honolulu Local Office, added, “Federal law protects workers who are discriminated against due to their infertility, a covered disability. Workers who undergo fertility treatments should be treated like any other employee with a disability—with equal and careful consideration of reasonable accommodation requests.”

The EEOC’s approach to infertility as an ADA-covered disability is not novel. More than a dozen years ago, in LaPorta v. Wal-Mart Stores, Inc. (W.D. Mich. 2001), a federal court concluded that because infertility substantially limits the major life activity of reproduction, it was an ADA-covered disability. With the expansion of the definition of disability under the ADAAA, the Act’s coverage of infertility should not be in dispute. (In that case, Wal-Mart was accused of denying a single day off as a reasonable accommodation for the employee’s fertility treatment).

While this issue is seldom litigated, employers that fail to accommodate employees’ infertility treatments, or otherwise discriminate against employees undergoing fertility treatments, could see an explosion of these types of claims. As the EEOC reminds us, “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.” In other words, this issue is very much on the EEOC’s radar.

Infertility and its treatments are stressful on parents-to-be. Unless you’ve experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it’s difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization, are both time consuming and time sensitive. Do not exacerbate an employee’s stress by toying with their time away from work. Moreover, with this issue on the EEOC’s enforcement radar, employers that deny time off for fertility treatments may find themselves as the start of the EEOC’s next infertility-related press release.

WIRTW #300 (the “300th” edition)

Like a Spartan soldier raging into battle against the army of the Persian King Xerxes, I have ripped through 300 of these end-of-week compilations. Here’s the original post (Oct. 12, 2007) that started it all, so you can see how far we’ve traveled.

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

Discrimination

• What Happens in a “He Said/She Said” Case? A Trial — from Dan Schwartz’s Connecticut Employment Law Blog
• Discrimination award $27K, attorneys’ fee award nearly $700K — from Walter Olson’s Overlawyered
• Undue Hardship in the Financial Sense: A Viable Defense? — from Understanding the ADA
• FACT OR FICTION: Employers may discriminate based on family status — from Eric Meyer’s The Employer Handbook
• I Swear It Can Be Harassment: Workplace Profanity — from The Blue Ink
• Court Summarily Dismisses “Familial Status” Claim Under Title VII and the PHRA — from Currents: Hot Topics in Employment Law

Social Media & Workplace Technology

• A Game Changer For Employers: Embracing Mobile As Consumers Have — from TLNT
• Personal devices in the workplace: a recipe for cost savings or disaster? — from Technology for HR

HR & Employee Relations

• Top 9 HR Fails of 2013 — from Evil HR Lady, Suzanne Lucas
• Does LOVE Work as an Employee Relations Method? — from Mike Haberman’s Omega HR Solutions
• When Should An Employer Investigate? — from Workplace Investigations Blog
• Drafting an Employee Sick Leave Policy — from Corporate Counsel
• What rules must we follow if we must lay off work-visa employees? — from Business Management Daily
• Labor and Employment Law in the Vineyards — from Legal Tastings – A Wine Law Blog
• Does your employer own the entire contents of your head? — from Fortune Management & Career Blog
• Protected Status Of Trade Secrets May Be Lost By Not Insisting On Confidentiality — from Trading Secrets

Wage & Hour

• When Do You Have to Pay “Executive” Employees Overtime? — from The Emplawyerologist
• Eleventh Circuit Affirms Employer’s Directed Verdict Based On FLSA Outside Sales Exemption — from Employment Class Action Blog
• Great Expectations: Salesman’s Incompetent Performance Does Not Defeat Exempt Status — from The Wage and Hour Litigation Blog
• A Family and Medical Leave Act for the 21st Century — from DOL’s Work in Progress

SCOTUS

• SCOTUS Ruling on Forum-Selection Clauses Good News for Employers — from Molly DiBianca’s Delaware Employment Law Blog
• SCOTUS DIGs “most significant labor case in a generation” — from from Phil Miles’ Lawffice Space

A Festivus for the rest of us (at work)

Yesterday, Evil Skippy at Work answered a reader’s question about whether an employer can prevent its employees from celebrating Festivus in the workplace.

“What is Festivus,” you ask? “I’ve never heard of it.” Watch this short, five-minute instructional video, and then let’s talk.

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As you can see, Festivus, is not a religious holiday. It’s a parody, celebrated on December 23 as a non-commercialized alternative to the holiday season. According to Wikipedia, it started as a family tradition of Seinfeld writer Dan O’Keefe, who brought it into our collective consciousness by incorporating it into a 1997 episode of the show.

Which brings us back to the original question—can an employer ban Festivus at work? Because it’s a secular holiday, Title VII’s religious accommodation requirements do not apply. Unless, of course, it is an expression of an employee’s atheism, which is a “religion” Title VII protects and for which an employer must make a reasonable accommodation.

So, if the employee requesting a workplace Festivus Pole is doing so as an expression of his or her sincerely held atheism, then you should think long and hard before you deny the request. If, however, there is no religion supporting the request, then no law would prohibit you from banning Festivus at your company. Then again, why would you want to in the first place?

Regardless, if you are lucky enough to work for a company that embraces this holiday, consider it a Festivus Miracle.