If you're caught sunbathing nude, on the roof of your elementary school-employer, don't sue for retaliation

Charles Davis is a long-time custodian for Unified School District No. 500. In 2007, he was caught on the roof of the elementary school at which he worked, sunbathing, in the nude. Instead of firing him, the school board suspended him for 30 days without pay and demoted him. Over the next five years, he applied for seven different head custodian jobs with the district. Each job went to a different applicant. Davis filed three different charges with the EEOC stemming from those rejections, first for race discrimination, and later for retaliation.

In Davis v. Unified School District No. 500, the 10th Circuit upheld the district court’s dismissal of Davis’s retaliation claim:

In a nutshell the key issue is whether a common purpose to retaliate against Davis must be inferred from the sheer volume of his promotion denials; we think not when seven independent and informed decision makers are involved.

Some employees are unworthy of protection by the anti-retaliation laws. Yes, Davis filed many EEOC charges claiming discrimination resulting from his employer’s failure to promote him. But, he was also caught sunbathing, nude, on the roof of the elementary school at which he worked. One decision maker would be justified in concluding that Davis was unworthy of a promotion. Seven different decision makers reached the same conclusion. Thus, barring evidence of a grand conspiracy against Davis because he had filed some EEOC charges, he could not prevail on his retaliation claim.

The moral of the story: not all protected activity is protected.

(Hat tip: Judy Greenwald at Business Insurance)

WIRTW #320 (the "did you hear the one about…?" edition)

After the week I’ve had, I think some humor is in order. Apparently, I’m not the only one. This article from the Wall Street Journal suggests that companies can connect better with their employees and customers with levity. 

And any good HR manager can tell you that workplace satisfaction — not compensation — is the best predictor of employee retention. Humor can be a powerful tool in inter-office communications, as research has shown that it’s a useful way to cope with pain, stress and adversity (in other words, staff meetings).

Here’s the rest of what I read this week

Discrimination

• FACT OR FICTION: There is such a thing as a reverse-disability claim? — from Eric Meyer’s The Employer Handbook Blog
• Physical attendance not required? ADA and telecommuting, cont’d — from Walter Olson’s Overlawyered
• Second Circuit Rejects Hostile Work Environment and Retaliation Claims — from Minnesota Employer
• Employers: Don’t Retaliate Even After The Employee Is Gone — from Employment Discrimination Report
• The Disability of the Future Workplace? — from Blogging4Jobs

Social Media & Workplace Technology

• #SocialMediaFail: PayPal director Rakesh Agrawal Departs After Troubling Tweets — from Shear on Social Media Law
• 8 Great iOS Apps That Have Nothing To Do With Practicing Law — from Lawyerist
• State Business Courts – New Rules for Tech Disputes — from Augmented Legality
• Will The Sixth Circuit Get ‘A Rise’ Out Of This Former Bengal Cheerleader’s Dirty Case? — from Abovethelaw.com
• 7 Ways Twitter has Changed Over the Years — from Social Media Strategies Summit Blog

HR & Employee Relations

• DON’T GO VIRAL: Donald Sterling, et al., and off-duty conduct — from Robin Shea’s Employment and Labor Insider
• Should You Be Outsourcing Your Human Resource Management Needs? — from Mike Haberman’s Omega HR Solutions
• ‘Work/life’ balance isn’t your employer’s problem—it’s yours — from Ragan.com
• Millennials @ Work — from SHRM Blog
• US Senate Bill Targets Credit Checks and FCRA Reform — from employeescreenIQ Blog

Wage & Hour

• Uncovering FMLA Abuse – With a Little Help From Big Data — from TLNT
• Agencies Release Exchange-Related COBRA Guidance — from E is for ERISA

Labor Relations

• Filing a Wage and Hour Class Action is Protected by the National Labor Relations Act — from Wage & Hour Defense Blog
• Employer Email Policies on Chopping Block as General Counsel Seeks to Overrule Register Guard and Board Calls for Amicus Briefs — from Labor Relations Update
• NLRB Inviting Briefs on Whether Union Supporters May Use Company Email for Union Activities — from Wyatt Employment Law Report
• House To Hold Hearing On Student/Athlete Unionization — from Labor Relations Today
• The End of Register-Guard? — from Workplace Prof Blog
• Will Your Social Media Policies and Practices Pass NLRB Muster? — from The Emplawyerologist

Until next week…

EEOC continues fight against severance agreements,while employers fight back

Earlier this year, I reported on a groundbreaking lawsuit the EEOC filed against CVS challenging as retaliatory some garden-variety provisions in employee separation agreements (here and here). 

Earlier this week, the EEOC reported that it has filed a similar lawsuit in Colorado, against CollegeAmerica. From the EEOC’s news release:

Debbi D. Potts, the campus director of CollegeAmerica's Cheyenne, Wyo., campus, resigned in July 2012 and signed a separation agreement in September 2012 that conditioned the receipt of separation benefits on, among other things, her promise not to file any complaint or grievance with any government agency or to disparage CollegeAmerica. These provisions would prevent Potts from reporting any alleged employment discrimination to the EEOC or filing a discrimination charge.…

The EEOC also claims that provisions which similarly chill employees’ rights to file charges and cooperate with the EEOC exist in CollegeAmerica’s form separation and release agreements, routinely used with its employees.…

“Rights granted to employees under federal law, like the right to file charges of discrimination and participate in EEOC investigations into alleged discrimination in the workplace, cannot be given up in agreements between private parties,” said Mary Jo O’Neill, Regional Attorney for the EEOC’s Phoenix District Office…. “Otherwise, employers could easily do an end run around the law, employees would not be free to complain about discrimination, and the EEOC would never learn about violations of the law or have an opportunity to enforce it.”

Meanwhile, CVS is fighting back against the EEOC in its lawsuit. CVS has asked the district court to dismiss the complaint in its entirety, cap arguing that the mere inclusion of terms in a severance agreement does not violate Title VII. Business groups are also weighing in, the court has granted permission to the Retail Litigation Center to file a brief in support of CVS’s motion to dismiss. 

I continue to believe that this issue is the most important issue to employers that the EEOC is currently litigating. 

It is becoming clear that the CVS lawsuit was not an anomaly, and that challenging these types of provisions in severance agreements is high on the EEOC’s radar. For now, however, I think employers should take a wait-and-see approach. This issue is too important for employers to knee-jerk pull these key clauses from their agreements.

For now, what I wrote in February (which includes a draft carve-out) still holds true:

Don’t shred your settlement and severance agreements just yet.… Modify your agreements to bolster and clarify the protected-activity carve-out.… Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

How flexible are our modern workplaces?

As I type, I’m 30,000 feet above Pennsylvania, flying to see my dad, who’s waiting in the hospital for surgery. As you read, i’m probably sitting somewhere on the campus of the Hosptial of the University of Pennsylvania. I share these facts not for well wishes, but because today’s post happens to be about workplace flexibility. 

Last week the Families and Work Institute and the Society for Human Resource Management published the results of their National Study of Employers, which revealed three interesting facts about the role of flexibility in the modern workplace.

1. The smaller the employer, the greater the flexibility. Employers with between 50 and 99 employees are more likely than employers with 1,000 or more employees to offer the following work-flex benefits:

• Change starting and quitting times within an accepted range of hours (33% versus 20%)
• Work regular paid hours at home occasionally (11% versus 4%)
• Control over when to take breaks (66% versus 52%)
• Return to work gradually after childbirth or adoption (53% versus 37%)
• Take time off during the workday to attend to important family or personal needs without loss of pay (52% versus 36%)

2. Telecommuting is on the rise. More employers are providing occasional telecommuting (67%) for at least some employees than in 2008 (50%).

3. Flexibility, child care, and elder care lead to increased employee retention. Thirty-five percent of employers cite “retention” as the key reason for providing flexibility, along with child and elder care assistance. 

Two weeks ago, I wrote on telecommuting as a reasonable accommodation under the ADA. The more I think about the impact of mobile technology on the workplace, the more I am convinced that the 6th Circuit got it right. There is no excuse for an employer to be inflexible with those of its employees for whom it is feasible to work remotely. If an employee is performing, then it doesn’t matter where the employee performs. If the employee isn’t performing, treat it as an indictment of that employee, not an indictment on telecommuting as a practice or standard. 

Potty mouthed employees

Most non-union employees are at-will, which means you can fire them for any reason, good, bad, or for no reason at all (as long as some other law, such as discrimination laws, doesn’t trump). So, if an employee has a potty mouth, you can fire her, right? Not so fast, says an unemployment hearing officer in Iowa.

Wellma “Tootie” Shafer worked for 18 months as a cashier at the Last Chance Market in Russell, Iowa. The market sells the following products:

• “Wake the F— Up” coffee
• “The Hottest F—in’ Nuts”
• “The Hottest F—in’ Sauce,” which is labeled as having an “ass-burning” quality

The store also boasts a metal sign by the entrance that reads, “Shirts and shoes are required, but bras and panties are optional.”

It seems that Tootie liked to talk to some of customers about “dirty, adult situations.” After some eavesdropping customers complained, her boss, Rick Braaksma, fired her. At the unemployment hearing, the hearing office took Braaksma to task for his apparent double standard. From The Des Moines Register:

After Braaksma testified that he doesn’t tolerate dirty jokes in his store, Administrative Law Judge Beth Scheetz asked him, “So why don’t you remove these articles from your shelves?” 

“Because we sell them,” he said. 

“They are dirty jokes on your shelves, basically,” Scheetz said. 

“No, they’re bottles of hot sauce,” Braaksma responded. “It’s all right to have dirty words on the premises because the farmers come in there and eat lunch all the time and that’s just, uh, kind of —” 

“So dirty words are OK,” Scheetz said. 

“Yeah,” Braaksma said, “but there’s a time and a place for it.”

I can make a really good argument that once a customer complains about an employee’s potty mouth, the game changes (even if the store sells f’n coffee). If someone complains about harassment, an employer should investigate, and, if necessary, reasonably remediate. In this case, the employer decided to terminate. This judge, in this context (an unemployment claim), saw it differently. 

The NLRB is looking to overturn email solicitation rules

In Register Guard, the NLRB held that an employer’s solicitation or other communication policy can lawfully bar employees’ non-work related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the NLRA, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era Board. Now, it’s 2014, and the current Obama-era Board is taking a look at Register Guard. 

The Board has posted a notice [pdf] asking advocates to submit position briefs covering each of the following five issues:

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The notice is in response to an ALJ’s decision in Purple Communications, Inc., holding that an employer did not violate the Act by prohibiting use of its electronic equipment and email systems for activity unrelated to its business purposes. 

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard, and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it to restrict employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers and bears monitoring as this important issue weaves its way through the NLRB. 

WIRTW #319 (the “photocopier” edition)

Do you want to lose credibility, either as a lawyer or a witness? Spend seven minutes during a deposition arguing over the meaning of “photocopier.” Watch this video from The New York Times, which is a dramatic retelling of a deposition from a case decided by the Ohio Supreme Court in 2012.

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

Discrimination

• Sixth Circuit and Essential Functions — from Workplace Prof Blog
• Do you have a Donald Sterling in your midst? — from Next Blog
• The EEOC’s $2 Million Same Sex Workplace Decision — from Blogging4Jobs
• Telecommuting as reasonable accommodation? Sure, but not in this case — from Robin Shea’s Employment and Labor Insider
• Michigan Employers Must Consider Telecommuting as a Reasonable Accommodation — from Michigan Employment Law Advisor
• EEOC v. Ford Accelerates Telecommuting Issues — from Corporate Counsel
• Employee Allergic To Service Dog At Work: Rights In Conflict — from Employment Discrimination Report

Social Media & Workplace Technology

• Dumb Bosses and Camera Phones - Not a Good Mix for your Company — from Michigan Employment Law Advisor
• 7 Ways Twitter has Changed Over the Years — from Social Media Strategies Summit Blog
• Job hunting? Take a closer look at your Facebook page — from Evil HR Lady
• How Private is Private Browsing? — from Ride The Lightning
• Jurors’ Private Social Media Is Off Limits, ABA Tells Lawyers — from WSJ.com: Law Blog

HR & Employee Relations

• Employee committed firing offense? Terminate ASAP–or else prepare for court — from Business Management Daily
• Swift Investigation of Sterling-Clippers Discrimination Incident Well Played — from i-Sight Investigation Software Blog
• 7 signs it’s time to hire in-house HR — from MonsterThinking
• Apple and Google will settle no-poaching conspiracy lawsuit — from Boy Genius Report
• Are FCRA Class Actions A New Form Of Wage & Hour Lawsuits? — from Workplace Class Action Litigation

Wage & Hour

• Why a Quarter of Americans Don’t Trust Their Employers — from Harvard Business Review
• Senate Confirms Controversial New Wage and Hour Administrator — from TLNT
• My Salaried Employee Has No PTO But Needs Time Off—What Can I Do? — from HR Daily Advisor
• Buffalo Jills Boo Bosses but Lawsuit Raises Question: Are NFL Cheerleaders “Employees” Protected by Minimum Wage Laws? — from Suits by Suits
• I’m an Executive, You’re an Executive, We’re All Executives! 8th Circuit Lowers the Bar for FLSA “Executive” Exemption — from Wage & Hour Insights
• Exotic Dancers - Employees or Independent Contractors? — from Phil Miles’s Lawffice Space

Labor Relations

• Social Media Policies — ALJ Disregards Guidance From NLRB General Counsel — from HR Defense Blog
• NLRB Will Consider the Northwestern Football Player Ruling — from All in a Day’s Work
• What employees say on social media may be protected speech — from MonsterThinking
• ALJ strikes social media policy disclaimer for work-related speech — from Eric Meyer’s The Employer Handbook Blog

With workplace social media, don’t be like Nero

Legend tells us that Nero sat and played his fiddle while Rome, the capital of his empire, burned. Sadly, according to a recent survey, Social Media in the Workplace Around the World 3.0 [pdf], many employers are taking the same approach with their employees’ use of social media.

81% of employers surveyed report that they foresee the misuse of social media by employees becoming more of any issue in the future. Yet, only 53% have updated their social media policies in the past year, and only 37.5% provide employees any training on the appropriate use of social media. Meanwhile, 71% report having to take disciplinary action against employees for social-media misuse (more than double the number from 2012).

What do these numbers mean? Employers are not proactively getting out in front of a known problem.

Social media changes with the blink of an eye. Two years ago, many had never even heard of Twitter; now it boasts more than a billion registrants. New social sites debut at a lightning pace. Employers need flexible, changeable policies to adapt to these evolving technologies. Moreover, a policy is not worth the paper on which it’s printed unless you also provide meaningful, common-sense training to your employees.

It’s great news that employers perceive social media as a workplace problem that’s not going away. It’s disheartening, however, that so many are choosing to do nothing about it.

Your corporate message against discrimination must start at the top

By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

This story teaches an important lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render it safe. You need to decide what kind of company you want to be, and set the tone all the time. Then, when any employee (including the CEO or owner) is accused of racism, sexism, or any other illegal -ism, employees will have confidence that your company will arrest the offending behavior quickly and severely.

Kudos to the NBA for taking swift action against Sterling. Your business likely does not require the same type of pubic response made by the NBA. However, the NBA’s swift and decisive action tells all of its employees that racism has no place in its league.

What does an appropriate corporate response to this level of intolerance look like? Here are some of the comments of NBA Commissioner Adam Silver (via USA Today):

The views expressed by Mr. Sterling are deeply offensive and harmful; that they came from an NBA owner only heightens the damage and my personal outrage.

Sentiments of this kind are contrary to the principles of inclusion and respect that form the foundation of our diverse, multicultural and multiethnic league.

I am personally distraught that the views expressed by Mr. Sterling came from within an institution that has historically taken such a leadership role in matters of race relations and caused current and former players, coaches, fans and partners of the NBA to question their very association with the league.

To them, and pioneers of the game like Earl Lloyd, Chuck Cooper, Sweetwater Clifton, the great Bill Russell, and particularly Magic Johnson, I apologize.… This has been a painful moment for all members of the NBA family. I appreciate the support and understanding of our players during this process, and I am particularly grateful for the leadership shown by Coach Doc Rivers, Union President Chris Paul and Mayor Kevin Johnson of Sacramento, who has been acting as the players’ representative in this matter.

We stand together in condemning Mr. Sterling’s views. They simply have no place in the NBA.

No good comes from asking medical-related questions during interviews

Sjöstrand v. The Ohio St. Univ. (6th Cir. 4/28/14) [pdf] is an ADA case, but not an employment case. It involves a graduate school applicant claiming that OSU denied her admission because of her Crohn’s disease. In support of her claim, Sjöstrand pointed to her admission interview, during which she claimed each interviewer spent about half of their time discussing her Crohn’s disease. She claimed that because she tied for the highest GPA in the applicant pool, and her GRE scores exceeded the school’s requirements, her disability was the only rational explanation for her rejection.

The 6th Circuit reversed the trial court’s dismissal of Sjöstrand’s ADA claim:

Yet according to Sjöstrand’s testimony … neither of her interviewers even mentioned any of the putative reasons why her application was rejected, and each interviewer instead devoted about half the interview to a discussion of her Crohn’s disease. The resulting inference is that the interviewers’ real concern—and thus the reason they rejected Sjöstrand’s application—was her Crohn’s disease.

OSU could have perfectly legal reasons for rejecting Sjöstrand’s application. In fact, the school listed five different reasons. However, as this case demonstrates, the questioning about her medical condition during the interview tainted the entire process.

In the employment context, it is per se illegal to make any disability-related inquiries before you make a conditional job offer. If you ask medical questions during a job interview, you have violated the ADA whether or not you ultimately hire the individual. If you don’t hire the individual, those illegal questions will likely taint your hiring process beyond the point of no recovery.

It behooves you to communicate this message to anyone who interviews for you. Even though Sjöstrand is not an employment case, it’s a great illustration of what can go wrong when an employer interjects an applicant’s medical issues into the interview process.

NLRB judge says employee cannot require its employees to disclaim social media posts

The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.

In The Kroger Company of Michigan [pdf], and NLRB administrative law judge concluded that Kroger’s Online Communications Policy—which required that it’s employees post the above-quoted disclaimer along with the publishing of any work-related online content—was illegal.

The ALJ conceded that Kroger’s has a legitimate interest in limiting unauthorized communications. Nevertheless, the perceived over-breadth of the policy trumped the employer’s legitimate interest:

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would never—ever—withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech. 

How does a statement by an employee, on the employee’s personal Facebook page, that the posts are his and not his employer’s, chill an employee from expressing an opinion about work? To the contrary, this disclaimer would seem to have the opposite effect, freeing the employee to talk about work because he or she has already disclaimed that the post is merely the employee’s personal opinion, and not an official statement of the employer.

As Eric Meyer pointed out in discussing this decision last week, Kroger merely serves to add to the confusion that already exists around workplace social media policies. As for me, I see little harm in these types of disclaimers.

WIRTW #318 (the “billion” edition)

This week, Facebook announced that it has more than a billion mobile users per month. From The Verge:

The company reported 1.28 billion monthly active users and over 1 billion monthly active mobile users. This time last year Facebook had 1.1 billion active monthly users and 751 million monthly mobile users, an increase of 34 percent. It was the first time it had over 1 billion mobile users in a single month.

This number should be a wake-up call for any business that is ignoring the impact of mobile technologies on your workplace. Do you ban Facebook and other personal Internet use at work? You better believe employees are taking out their iPhones and doing it anyway. Do you support BYOD? You better, because your employees will clamor for it. We live in a mobile world. Your business’s workforce relations needs to adjust.

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

Discrimination

• Sixth Circuit redefines the “workplace” when considering attendance as an ADA essential job function — from Eric Meyer’s The Employer Handbook Blog
• Road Rules: Ruling Now Guides Telecommuting As Reasonable Accommodation Discussion — from Dan Schwartz’s Connecticut Employment Law Blog
• Employee representing himself? Take it just as seriously as any other lawsuit — from Business Management Daily
• Keeping Background Checks Legal Under EEOC Guidance — from ERC Insights Blog
• All That for a Bag of Chips: Walgreens going to trial in disability discrimination case — from Robin Shea’s Employment & Labor Insider
• EEOC: Employer Violated ADA by Withdrawing Job Offer Because of Applicant’s Old Back Injury — from EmployerBrief
• Is attendance always an essential function of the job? — from Understanding the ADA

Social Media & Workplace Technology

• What’s all this fuss about BYOD? — from Mike Haberman’s Omega HR Solutions
• Hurt Feelings Do Not a Lawsuit Make … Even on Twitter — from Delaware Employment Law Blog
• Lawyers can look up jurors on social media but can’t connect with them, ABA ethics opinion says — from ABA Journal Daily News

HR & Employee Relations

• How To Leave Work At 5 P.M. And Still Get Everything Done — from Kathryn Dill at Forbes
• Why I Tell My Employees to Bring Their Kids to Work — from Harvard Business Review
• Can You “Negligently” Fire Someone? — from Suits by Suits
• Defamation and Invasion of Privacy: What These Terms Mean for Employers — from All in a Day’s Work
• Is It HR’s Role to Support the Company, or Its Employees? — from TLNT

Wage & Hour

• “Perhaps it is time for defendants to start settling less often” — from Walter Olson’s Overlawyered
• The High Cost of Noncompliance — from Ohio HR Law
• Overtime, an Introduction — from Michigan Employment Law
• FLSA Class Actions – A $6 Million Reminder to Re-visit Hours Worked Policies — from Wage & Hour - Development & Highlights
• Eighth Circuit Unpacks Hire/Fire Prong of the FLSA's Executive Exemption — from Minnesota Employment Law Report
• Playing with Employees’ Hours Could Get You in Hot Water under the ACA and FLSA — from Health Employment and Labor
• New Fitness-for-Duty Exam Consistent With Returning Employee’s FMLA Rights, Court Says — from Joe’s HR and Benefits Blog

Labor Relations

• Four Union Guys Walk Into a Bar… — from Rick Bell at Workforce
• NLRB Orders Employer to Repay Union’s Bargaining Costs — from Labor Relations Today
• Unions’ $735,000 Question: Why “No Reply”? — from LaborPains.org
• Who Needs Miss Manners? Apparently Not Employees, NLRB Says — from Labor & Employment Law Perspectives
• Employee Handbook Policies: The NLRB Giveth, and Taketh Away — from The Blue Ink
• It’s No Secret…The NLRB On Confidentiality Requirements at Work — from The Emplawyerologist

Revisiting the misnamed and misunderstood term "wage theft"

Yesterday, on his always excellent Connecticut Employment Law Blog, Dan Schwartz wrote a post entitled, “Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means. Dan wrote:

[T]he use of the phrase is being pushed to push various agendas — not as a result of any legal theory or real change in the law.… And it’s time to call it out; it’s a phrase that is both misleading and loaded.… Does that mean that the problem of employers failing to pay employees overtime should be ignored? Hardly. Employers who fail to follow the the myriad of wage and hour laws should be held accountable. And suffice to say that criminal activity by employers should continue to be enforced vigorously.… Quite simply: The use of a criminal term for a non-criminal act needs to stop.

Dan is 100 percent correct that the term “wage theft” is being misused and abused. The mainstream press and bloggers are using the term to cover any situation in which an employer is not paying required overtime, whether it’s an intentional withholding or an honest mistake. “Theft” connotes bad intent — yet most wage and hour mistakes are honest ones born out of a misunderstanding of the law, not a desire to cheat or steal from employees.

Dan was kind enough to cite to a post I wrote on the same topic almost a year ago, entitled, Taking issue with the term “wage theft”. Because Dan has shed new light on this important issue, I thought it makes sense to republish my earlier post.

Lately, I’ve read a lot of blogs that accuse employers of committing rampant wage theft (e.g., here, here, and here). 

I have a huge problem with the term “wage theft.” It suggests anintentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not. 

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better. 

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. 

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft statutes that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation. 

In my most recent book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law, I summarized this issue best: 

“Congress enacted the FLSA during the great depression to combat the sweatshops that had taken over our manufacturing sector. In the 70 plus years that have passed, it has evolved via a complex web of regulations and interpretations into an anachronistic maze of rules with which even the best-intentioned employer cannot hope to comply. I would bet any employer in this country a free wage-and-hour audit that i could find an FLSA violation in its pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive…. 

“I am all in favor of employees receiving a full day’s pay for a full day’s work. What employers and employees need, though, is a streamlined and modernized system to ensure that workers are paid a fair wage.”

6th Circuit recognizes telecommuting as an ADA reasonable accommodation

In Core v. Champaign County Board of County Commissioners, the U.S. District Court for the Southern District of Ohio opined that telecommuting (i.e., work-from-home) might be an ADA reasonable accommodation under the right circumstances, but that case did not present those circumstances. The Core court specifically noted that the 6th Circuit does not “allow disabled workers to work at home, where their productivity inevitably would be greatly reduced,” except “in the unusual case where an employee can effectively perform all work-related duties at home.”

Yesterday, in EEOC v. Ford Motor Co., the 6th Circuit, for the first time, recognized that modern technology is making telecommuting a realistic reasonable accommodation option. The case involved an employee with Irritable Bowel Syndrome who could not drive to work or leave her desk without soiling herself. Ford declined her telecommuting request because it believed in its business judgment that her position—a buyer who acted as the intermediary between steel suppliers and stamping plants—required face-to-face interaction.

The 6th Circuit disagreed, in large part because Ford could not show that physical attendance at the place of employment was an essential function of her job.

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.…

[W]e are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.… We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” … [C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Like it or not, technology is changing our workplace by helping to evaporate walls. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes work-at-home arrangements more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider the following three-steps:

• Prepare job descriptions that detail the need for time spent in the office. Distinguish one’s physical presence in the office against one’s working hours.
• Document the cost of establishing and monitoring an effective telecommuting program.
• If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

photo credit: Jeremy Levine Design via photopin cc

When an employee can’t return to work after an FMLA leave

The plaintiff in Demyanovich v. Cadon Plating & Coatings (6th Cir. Mar. 28, 2014) suffered from congestive heart failure. He returned from his latest FMLA leave in 2009 with a no-overtime medical restriction. The employer, however, ignored the restriction, kept assigning overtime hours, and denied an early-2010 FMLA request. Demyanovich’s doctor advised him to quit his job and apply for social security benefits. Shortly thereafter, the company terminated him for excessive absenteeism.

In the subsequent FMLA lawsuit, the employer claimed that Demyanovich could not prove him FMLA claim because he could not have returned to his job at the end of the 2010 FMLA leave, had it been granted. The court, however, disagreed:

Although there is ample evidence that Demyanovich might have had difficulty returning to work within twelve weeks of his February 23 request for FMLA leave, it is not indisputable that he would have been unable to do so. Dr. Mussani, Demyanovich’s primary physician, “advised [Demyanovich] to quit work” and seek Social Security benefits, but he did not draft any documentation stating that Demyanovich was categorically unable to continue working. We may not draw the inference, adverse to Demyanovich, that because Dr. Mussani had always cleared Demyanovich to return to work after past examinations, his advice to quit on this occasion demonstrates that Demyanovich was no longer capable of working.

According to the FMLA, employees who, at the end of the 12-week leave period, remain “unable to perform an essential function of the position because of a physical or mental condition … [have] no right to restoration to another position under the FMLA.” Thus, if Demyanovich truly could not have returned to work at the end of the FMLA leave, then he would not have a claim. In this case, the court concluded that the employer could not measure that inability prospectively, since Demyanovich presented no medical paperwork to that end.

What are the takeaway from this case?

1. When dealing with medical issues under the FMLA, get it in writing. In this case, it appears that the employer was attempting to justify its decision based on information in learned after the fact—that Demyanovich’s doctor recommend that he quit and seek social security benefits based on a total inability to work. Had the company learned this information at the time of the termination from medical information provided by Demyanovich at that time, this case likely would have turned out differently.
2. Don’t forget about the ADA. Just because an employee cannot return to work at the end of an exhausted FMLA leave does not mean you can always terminate the employee. Instead, you have an obligation under the ADA to explore, through the interactive process, reasonable accommodations such as temporary light duty or an unpaid leave of absence. Even if you are on solid legal ground to terminate under the FMLA, ignoring your obligations under the ADA will still buy you a lawsuit.

Would you rather hire a liar or a criminal?

According to a recent survey conducted by background-screening company EmployeeScreenIQ, resume lies are more of a deal breaker for employers than past crimes.

Of the 600 HR professionals surveyed 45 percent said that they routinely ding candidates with a criminal history on their resume, while a whopping 90 percent refuse to hire some for whom a resume lie is discovered.

Two years ago, when the EEOC announced its Enforcement Guidance on the Consideration of Arrest and Conviction Records, I expressed reservations over regulatory guidance that limited the ability of employers to use criminal histories as a disqualifying factor for certain classes of jobs. I still believe that individuals with certain criminal histories should not hold certain jobs. For example, I remain steadfast that I cannot foresee a situation where a company would ever hire a convicted murdered or sex offender a delivery person.

I would never hire anyone who lies during the hiring process. The most important trait in hiring anyone for a job is honesty. If the bond of honest breaks down between employer and employee, the breakdown of the employment relationship will quickly follow. While not all criminal convictions depict an individual as dishonest, all resume lies do. The fact that this survey shows that double the number of employers refuse to hire candidates with resumes lies versus those who truthfully reveal past crimes does not surprise me in the least.

Readers, what say you? Would you rather hire a liar or a criminal? What is more troubling to you: the applicant who lies on a resume, or an applicant who discloses a criminal history on resume? Sound off in the comments, or on Twitter @jonhyman with the hashtag #liarorcriminal.

WIRTW #317 (the “crash landing” edition)

Even though we are only in the third week of April, I am ready to declare that we have already seen the social-media #fail of 2014. From Fox News:

US Airways said it was investigating a pornographic tweet on Tuesday sent on its Twitter account in response to a customer complaint about a flight delay, which went viral on social media.

US Airways issued an apology on Monday immediately after deleting the tweeted photograph of a naked woman lying on a bed with a toy airplane between her legs, said Davien Anderson, spokesman for US Airways.

To be accurate, “between her legs” is a bit of an understatement.

Meanwhile, Jezebel reports, “It was an honest mistake. No one is getting fired.” Honest mistakes happen, both in the privacy of the workplace and in public on social media. The important lesson is how you handle it. Do you punish the employee? Or do you use the mistake as a teachable moment for all of your employees. In my experience, you get much more mileage from the latter.

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

Discrimination

• Seven Signs of Age Harassment — from Mike Haberman’s Omega HR Solutions
• The ADA may require companies to accommodate employee theft. Yep, stealing. — from Eric Meyer’s The Employer Handbook Blog
• Affirmative Action Plans: Does Your Company Need One? — from ERC Insights Blog
• The EEOC Loses Background Check Battle In The 6th Circuit — from Ohio HR Law
• Age Discrimination Cases Can be Easy to Prove — from The Blue Ink
• Are Pre-Employment Credit Checks Discriminatory? — from Atlanta Employment Lawyer Blog
• Employment Law IQ: Can a Church Employee be Fired for Having an Abortion? — from Southwest Florida HR Law & Solutions
• Is Stuttering A “Disability?” — from Employment Discrimination Report
• The ENDA Title VII As We Know It: Why House Republicans Should Pass The Employment Non-Discrimination Act — from Above the Law

Social Media & Workplace Technology

• Ten (+4 More) People to Follow on Twitter for Labor and Employment Law — from Dan Schwartz’s Connecticut Employment Law Blog
• Is It Time to Reconsider Your Personal Email Policy? — from Molly DiBianca’s Delaware Employment Law Blog
• Step Away From the Text Messages — from Evil HR Lady, Suzanne Lucas
• Do Email Bans Derail Workplace Flexibility? — from Families and Work Institute Blog
• Should you have the right to turn off your messaging — or your iPhone! — at the end of the workday? — from TiPb
• 8 Ways Not to Manage Your Email (and 5 and a Half Tactics that Work) — from Harvard Business Review
• Is Your Company’s Culture In Conflict With Social Media Trends? — from Fistful of Talent
• Employers and Social Media — from The D & O Diary

HR & Employee Relations

• Who needs HR? We all do. — from Robin Shea’s Employment and Labor Insider
• Finding the Right Chief Compliance Officer — from Corporate Counsel
• Survey Reveals Criminal Offenses That Concern Employers — from employeescreenIQ Blog
• Company Fights Suit by Worker Over ‘Potato Gun’ Explosion He Helped Set Off — from WSJ.com: Law Blog

Wage & Hour

• Unpaid internships are common, but are they legal? — from MonsterThinking
• Dollar Dollar bills y’all. Wage Payments under the FLSA. — from Michigan Employment Law
• Why Paternity Leave Is Important, Even Though You’ll Hate It — from Deadspin

Labor Relations

• Northwestern’s Appeal to NLRB on Football Union — from Phil Miles’s Lawffice Space
• The NLRB and social media — why you need to care — from Technology for HR
• Target Takes a Stand — from Labor Relations Institute

Why you need employee-invention and IP agreements

Taco Bell is defending claims by two former interns that they invented the Doritos taco nearly 20 years ago. They now want to be paid part of its billions dollars in sales. (ABC News)

The pair and their former employer will likely end up in court over who invented what, and when.

My question is whether Taco Bell required the interns to sign an “inventions” agreement. If they did, then even if the intern’s story is true, they will have little legal leg on which to stand.

A typical employee inventions agreement accomplishes the following:

• It defines that all rights to any inventions, innovations, developments, designs, etc., related to the employer’s business, and conceived, made, or developed by the employee while working for the employer, belongs to the employer and not the employee.

• It includes a promise that the employee will execute any documents necessary for the employer to perfect its ownership interest in any such inventions, etc.

• It provides the employee the opportunity to list, for exclusion, any patents held, or inventions, etc., conceived prior to employment, or for specific assignment to the employer for consideration paid.

These agreements are usually part of a larger confidentiality agreement, or non-competition agreement, but also can be standalone. The point is to avoid any dispute over who created what. If you provide employees the opportunity to list existing ideas and inventions, and to promise that anything they invent while working for you is yours, and not theirs, then nobody should go loco if one of their ideas hits it big, and the employer keeps it.

What happens when an HR investigation is staged … and filmed for a beer commercial?

This.

“Do you always wash your hands after using the restroom? … Have you ever told a coworker you like her outfit? … Do you use your work computer for non-work-related activities? … Have you been using your computer to watch basketball this March?”

I don’t recommend taking an HR investigation as a practical joke in your workplace, but this ad is pretty darn entertaining.

Hypothetical violations doom employer confidentiality policy

A few months ago I posted on the NLRB’s veto of a workplace confidentiality policy. Late last month, the 5th Circuit court of appeals ruled on another employer confidentiality policy, and the results should trouble employers everywhere.

At issue in Flex Frac Logistics v. NLRB was the following workplace confidentiality policy:

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to … our financial information …; [and] personnel information and documents…. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any Silver Eagle Logistics LLC records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

The appellate court affirmed the NLRB’s decision that this policy infringed on the rights of employees to engage in protected concerted activity:

A “workplace rule that forb[ids] the discussion of confidential wage information between employees … patently violate[s] section 8(a)(1).” … As the NLRB noted, the list of confidential information encompasses “financial information, including costs[, which] necessarily includes wages and thereby reinforces the likely inference that the rule proscribes wage discussion with outsiders.” The confidentiality clause gives no indication that some personnel information, such as wages, is not included within its scope.

Particularly troubling is the NLRB’s summary rejection of the employer’s argument that the policy should survive because it had never interpreted or applied it to restrict employees’ Section 7 rights, such as the right to discuss wages. As the court noted, “the actual practice of employees is not determinative,” as long as one could reasonably interpret the policy as a restriction on Section 7 rights.

In other words, employers need to safeguard their policies against what-ifs and hypotheticals, a daunting task. In a passing notation, the court does note that Flex Frac’s policy failed, in part, because it did not expressly exclude “personnel information, such as wages.” Going forward, employers should consider including this carve-out in their confidentiality policies to help avoid NLRB scrutiny.