Is it ethical to check jurors’ social media accounts?

Every jury trial starts with what is called voir dire—a question-and-answer session between the lawyers and the pool of potential jurors. As lawyers, we are trying to deselect those jurors whom we feel would be unfairly biased against our case or our client. It is much more an art than a science, and the more information we can gather about potential jurors, the more educated of a decision we can make that a juror is not the right fit for our case. 

Recently, the American Bar Association made this information gathering a little bit easier. In an ethics opinion (h/t: ABC News), the ABA gave lawyers the green light to view jurors’ and potential jurors’ publicly available Internet information, which, for example, could include their Facebook or Twitter musing. 

The Internet is a treasure trove of information about jurors. You could learn their political leanings, religious background, and all about their jobs and families. In short, you could learn the entire backstory of a “connected” juror.

But, do you want to? Just because this information gathering is ethical does not mean it’s strategically wise. By using the Internet as a basis for questions about a potential juror, you will clue the entire pool of jurors in on the fact that you’ve been trolling online for information about them. They might view your ethical conduct as a creepy invasion of their privacy. Voir dire is as much about you learning about the jury as it is about the jury learning about you. In other words, you don’t want to piss off the jury during voir dire. If you lose credibility before the trial even starts, what chance do you have to win the case?

So, lawyers, my take is that Facebook-ing potential jurors presents more of a risk to damaging your credibility with the jury than any benefit you will receive from learning information to help with the inexact science of voir dire. And, if you choose to research jurors online, keep that choice private, and don’t let the jury know you’ve been trolling them. It’s not worth the risk of the jury punishing you for it from the privacy of their deliberations.

WIRTW #326 (the “dads” edition)

Earlier this week, I wrote about the importance of work/life balance to working dads. Today I thought I’d share some other thoughts on the issue I found on the Web this week:

• For Father’s Day, Get Rid of Working-Father Myths — from Families and Work Institute Blog
• The Rise of the Hands-On Dad — from Harvard Business Review
• Work-Life Balance: A Bad Concept That Ignores The Real Problem — from TLNT

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

Discrimination

• EEOC’s David Lopez Addresses Connecticut Bar Association — from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC sues a nonprofit that assists the disabled for, yep, disability discrimination — from Eric Meyer’s The Employer Handbook Blog
• Defending EEOC Charges: “Don’t Use An Attorney Unless Really Necessary” Says Veteran Defender — from Employment Discrimination Report
• Gender and Reverse Discrimination in the Workplace — from Ohio HR Law
• Obama to Sign Executive Order Prohibiting Sexual Orientation Discrimination — from Phil Miles’s Lawffice Space
• Is the EEOC the new NLRB? — from Michigan Employment Law Connection
• Does an Employer Have an Obligation to Provide Accommodations to Pregnant Employees? Don't Follow This Employer's Lead — from FMLA Insights

Social Media & Workplace Technology

• Social media applicant searches too risky — from Technology for HR
• Every Legal App for iPhone and iPad — from Lawyerist
• Jurors Behaving Badly — from Molly DiBianca’s Delaware Employment Law Blog
• Tweet served as evidence of initial interest confusion in trade dress case — from Internet Cases
• Majority of US House supports overhaul of email privacy protections — from The Verge

HR & Employee Relations

• Beware of employees who are too eager to please — from Robin Shea’s Employment & Labor Insider
• Non-Competes on the Rise? — from Smooth Transitions
• What You Need to Know Before Signing a Noncompete Agreement — from Lifehacker
• The Wildcard in Noncompete Litigation – The Judge — from Michigan Employment Law Advisor
• Divided Appellate Court Voids Employer’s Non-Compete Covenants Because One Employee Did Not Sign — from Trading Secrets
• How to Create an Awesome Company Culture (No Perks Necessary) — from Evil HR Lady, Suzanne Lucas
• Top 10 Things Employers Should Never Do — from Blogging4Jobs

Wage & Hour

• Wage and Hour Lawsuits Against McDonalds, Too: Fast-Food Workers Are Fighting Back — from Employment Lawyer Blog
• Interns Win One, Lose One, In Having Misclassification Cases Conditionally Certified In New York — from Employment Class Action Blog
• Another Example of Owner Liability for Unpaid Wages and Liquidated Damages for Employee Misclassification — from Employment Matters Blog
• Must Know Facts for Hiring Teenagers this Summer — from Wage & Hour - Development & Highlights
• July 4th and other Paid Holiday Trends — from ERC Insights Blog
• FLSA Settlements – Doesn’t Mean It is Over Yet — from Wage & Hour Defense Institute
• Are you aware the Feds are about to rattle your world? — from Mike Haberman’s Omega HR Solutions
• DOL to Revise Definition of “Spouse” in FMLA Regulations — from Health Employment and Labor
• In the News -- Paid Leave — from Workplace Prof Blog

Labor Relations

• Board GC Seeks To Change Work Email Rule — from Labor Relations Today
• NLRB Asserts Jurisdiction Over a Charter School in New York — from New York Labor and Employment Law Report
• NLRB Strikes Down Employee Conduct Rules and Non-Disclosure Agreement, Reminding Employers to Be Mindful of Their Policies — from Hunton Employment & Labor Law Perspectives™
• Here’s Your [Expletive] Latte! — from The Employment Brief
• Confiscating Union Literature and Engaging in Surveillance of Union Activities Invalidates Election — from Vorys on Labor

Firing of county employee teaches important lesson about use of mobile technology

We love our phones. We are an iPhone society. I’ve referred to the phenomenon as “iPhone-ification.” Do you know that there are more mobile phones than people in the United States? Moreover, 90% of American adults own mobile phones, and nearly 60% are “smart.”

Not these phones.

Despite the proliferation of mobile phones, and their use in work and for work, many employees still do not understand the difference between work use and personal use.

Case in point? Yesterday, the Cleveland Plain Dealer reported that Cuyahoga County suspended a supervisor for using his county-issued cell phone to send unwelcome sexual text messages to a co-worker. According to the County [pdf], the employee used his phone to flirt and text sexual innuendo, even after the recipient told him to stop.

From this story, I offer two lessons—one for employees and one for employers.

• For employees, please stop using your work phones (and that includes your own personal devices that your employer allows you to connect to its network, i.e, BYOD) for personal business that will get you in trouble at work. If you wouldn’t say it to someone’s face, don’t email it, text it, Facebook it, or otherwise send it via your phone. Just because we treat our phones like members of our families does not mean that their content are off limits to employers. They’re not. 
• For employers, communicate this message to your employees. Trust me, they don’t get it. They think the four-inch device in their pockets is theres, and what they email, text, Facebook, etc., is not your business. Spell it out, in plain English in a mobile device policy. And reinforce that message in training sessions.

Photo used with permission / original here.

NLRB Judge holds that even individual acts can constituted protected concerted activity

Webster’s Dictionary defines “concerted” as, “done in a planned and deliberate way usually by several or many people; mutually contrived or agreed on.” Given this definition, I was surprised when I read a decision by an NLRB Administrative Law Judge, which held that a lone act of one constituted protected concerted activity under section 7 of the National Labor Relations Act.

Marjan Arsovski, a waiter at Beyoglu (a New York City restaurant), filed a wage-and-hour collective action in federal court claiming that his employer failed to pay him, and other similarly situated employees, minimum wage or overtime. His complaint alleged:

Plaintiff on behalf of himself and similarly situated persons who are current and former tipped employees…, who elect to opt in to this action…. FLSA Collective consists of approximately 40 similarly situated current and former employees of Beyoglu, who over the last three years, have been victims of Defendants’ common policy and practices that have violated their rights under the FLSA, by, inter alia, willfully denying them overtime wages.

The employer filed him the same day it received service of the lawsuit. During the termination meeting, Arsovski claimed he was told that the owner did not want him in the restaurant because of the lawsuit.

Even though Arsovski was the only named plaintiff in the lawsuit, the ALJ in 200 East 81st Restaurant Corp. [pdf] concluded that the collective allegations made in the suit were sufficient to constitute protected concerted activity under section 7 of the NLRA.

I have no doubt and conclude that Arsovski was fired because he filed an FLSA lawsuit that was received by the Respondent on the morning of June 25, 2013; the very day that his employment was terminated…. The legal question here is whether in filing the FLSA lawsuit relating to wages, Arsovski was engaged in concerted activity within the meaning of Section 7 of the Act. Or was he acting solely in pursuit of his own interests? …

Clearly, the evidence in this case does not establish that Arsovski acted in concert with, or on the authority of any of the other employees. His lawsuit was not filed with their consent, or except perhaps in one case, even with their knowledge. On the other hand, his Complaint does allege that it was filed on behalf of a class of similarly situated employees who work or have worked at the Respondent over a three year period of time. In this regard, it could be argued that Arsovski sought “to initiate or to induce or to prepare for group action.” …

Therefore, if Arsovski was discharged because the employer believed or suspected that he was engaged in concerted activity that would be sufficient to find a violation of the Act.

This case turns a wage-and-hour retaliation claim into an NLRB protected-concerted-activity charge. I’m confused why Arsovski would file this claim with the NLRB, instead of amending his complaint to add a retaliation claim under the FLSA.

A lawsuit filed by one person does not seem “concerted,” even if the claim seeks concerted relief. It’s neither mutually planned nor agreed upon. Yet, the judge had no problem concluding that Arsovski’s action was a group action. Given the breadth of the NLRB’s recent outreach into non-union workplaces, this case serves as a solid reminder that employer should consider the risk of a potential NLRB charge with all terminations and other adverse actions that involve complaints about work, because, as this case illustrates, the actions of one lone employee can, in the right circumstances, constitute protected concerted activity.

[Hat tip: Wage & Hour Insights]

An ode to working dads.

I have a good dad. Some of my best memories of my dad of him involve covering the walls of our dining room with paper so that I could practice writing, or sitting down reading books or doing math problems. Growing up, the memories shift to coaching little league, swimming in the ocean, and waiting in long lines at Great Adventure. In between all the play, he worked … hard. I remember my dad sometimes working three jobs — by day he taught special-ed in the Philadelphia School District, at night he taught classes at the local Penn State extension campus, and on weekends he managed my grandfather’s bar. He did all this so that he could provide as best he could for my family. And I am grateful.

Last Monday, the White House held a summit for working fathers, which highlighted on the following statistics:

• In 63% of families with children, both parents work.
• 60% of dads in dual-earning couples report experiencing work-family conflict (as compared to only 47% of moms).

Three days later, the Wall Street Journal ran an article entitled, The Daddy Juggle: Work, Life, Family and Chaos, which asked the question, “Can working fathers have it all?” The answer may lie in whether employers can get past traditional stereotypes about the role of men as breadwinners and women as caregivers.

Working against men is a stigma that those who identify themselves as active fathers are unwilling to work hard or put the company first.

A 2013 paper from the University of Toronto’s Rotman School of Management found that colleagues regard active fathers as distracted and less dedicated to their work. At the same time, a Harvard researcher has shown that men with children earn higher salaries when their wives work less than full-time.

Taken together, the evidence suggests that men in traditional breadwinner roles are rewarded, either because of cultural assumptions or because they are able to put their jobs first, while men who act as caregivers are hurt for doing so.

I don’t think dads necessarily want to “have it all.” Here’s what I do think:

1. Dads want to be offered the same flexibility as women to balance their jobs and their work. Employers beware. Getting stuck in traditional mindsets by offering flexibility and balance to women, but not men, is discriminatory. 
2. With technology making communication and instant access more feasible than ever, there is little excuse for employers not to try offering flexibility to their workers (men and women). Today’s employee is tethered to his or her iPhone. Employers should take advantage of this access. Give your employees some rope. If mom or dad has to take a child to a doctor’s appointment, or wants to volunteer at school, or coach a team, let them. They will still answer calls and return emails, because it’s their job to do so. And, if they don’t, then you have a performance issue, not a flexibility issue. We are all accessible around the clock. There is simply no excuse for an employer not to offer flexibility to all employees—men and women—whose jobs permit it.

Hold the Onion(head): What is a “religion” under Title VII?

Not an onion. Meet Mr. Lettuce.

Have you heard the one about the company that fired employees who refused to worship an onion? This is not the start of a joke, but a real, live lawsuit filed by the EEOC.

According to the EEOC, United Health Programs of America, and its parent company, Cost Containment Group, required its employees to participate in “group prayers, candle burning, and discussions of spiritual texts,” all as part of a “belief system” that the defendants’ family member created, called “Onionhead.” The EEOC further alleges that employees who refused to participate were fired.

What is “Onionhead?” According to the Harnessing Happiness Foundation, Onionhead is not a “what,” but a “who.”

Onionhead is this incredibly pure, wise and adorable character who teaches us how to name it - claim it - tame it - aim it. Onion spelled backwards is ‘no-i-no’. He wants everyone to know how they feel and then know what to do with those feelings. He helps us direct our emotions in a truthful and compassionate way. Which in turn assists us to communicate more appropriately and peacefully. In turn, we then approach life from a place of our wellness rather than a place of our wounds. 

His motto is: peel it - feel it - heal it

I’m not making this up. This comes right from the website of the Harnessing Happiness Foundation, which is a legitimate 501c3 nonprofit organization. It is “dedicated to emotional knowledge and intelligence, conflict resolution and life handling skills, for all ages,” which teaches the belief that “hope lies in our ability to deal with problems in a respectful, mindful and loving way.” “Onionhead” is part of Harnessing Happiness, which uses a genderless onion “as a medium to express peeling our feelings, as a way of healing our feelings.”

According to the New York Daily News, Denali Jordon, whom the EEOC’s lawsuit identifies as the group’s “spiritual leader,” denies that Onionhead is a religious practice.

Here’s the thing. For purposes of the EEOC’s religious discrimination lawsuit, it doesn’t matter whether or not Onionhead is a bona fide “religion.” According to the regulations interpreting Title VII’s religious discrimination provisions:

In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.

We know that forcing employees to participate in religious practices at work is a no-no. If “Onionhead” is a religion, than the EEOC will likely have an easy go of it in court. Should we take Ms. Jordon at her word that Onionhead is not a religious practice? According to Title VII’s regulations, the answer is no. According to the Harnessing Happiness Foundation’s website, Onionhead appears to include sincerely held moral or ethical beliefs about what is right and wrong. Thus, it appears that, even though Onionhead’s leaders deny its status as a religion, Title VII likely concludes otherwise.

What does all this mean for you? Leave religion out of the workplace. Whatever you call your deity—God, Jesus, Allah, Buddah … or even Onionhead—leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs.

As for me, I’m requesting no onions on my salad at lunch today (just in case).

(Hat tip: Business Insurance / Judy Greenwald)

WIRTW #325 (the “World Cup” edition)

Do you have World Cup fever? I don't. There's a much better chance I'll be checking the leaderboard from Pinehurst than the box scores from Brazil. I think I'm in the minority. An estimated 111.6 million Americans watched at least some of the 2010 World Cup. I bet that the number will increase this go-round, especially with Brazil being more U.S. time-zone friendly. How should you deal with your distracted employees? Some of my blogging friends have some ideas.

• World Cup Fever: Workplace Considerations Before Giving Out That Red Card — from Dan Schwartz’s Connecticut Employment Law Blog
• The World Cup Is on … Should You Be Watching? — from The Evil HR Lady, Suzanne Lucas

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

Discrimination

• The firefighter afraid of fighting fires loses his ADA claim. Right, you guys? Right?!? — from Eric Meyer’s The Employer Handbook Blog
• Why Did The EEOC Prematurely Announce A Settlement Only To Be Slapped Down By The Court? — from Employment Discrimination Report
• “English Only” - Discrimination or Legit Job Requirement? — from Phil Miles’s Lawffice Space
• Of Course EEOC Mediations Are (or Should Be) Different! — from EEO Legal Solutions
• How might you know when more leave is a reasonable accommodation once FMLA leave has been used up? — from Understanding the ADA

Social Media & Workplace Technology

• How to respond to negative online reviews — from Ragan.com
• Business vs. Pleasure ─ Tips to Keep Your Social Media Accounts Separate — from Social Media Strategies Summit Blog
• Lawsuit: University of Cincinnati Medical Center Employee Posted Patient STD Diagnosis on Facebook — from Shear on Social Media Law

HR & Employee Relations

• Your Work-Life Balance Should Be Your Company’s Problem — from Harvard Business Review
• The Father’s Day Audit — from You’re the Boss Blog
• Work and Life: You Gotta Have Heart — from Blogging4Jobs
• How Telecommuters Drive Home the Need for Confidentiality and Privacy Policies — from The Emplawyerologist
• My Co-Worker Uses His Cell Phone In The Restroom — from Evil Skippy at Work
• Remember “BRIEF” for Efficient Office Communication — from Lifehacker

Wage & Hour

• Auto-Deduct Meal-Break Policies Live to See Another Day — from Molly DiBianca’s Delaware Employment Law Blog
• How Common Are Wage and Hour Violations at Subway and Other Fast-Food Restaurants? — from Employment Lawyer Blog
• Sixth Circuit rejects argument that ACA’s requirement that Catholic Church-related non-profits “self certify” their religious objections to the provision of contraceptive services imposes a “substantial burden” under the Religious Freedom Restoration Act — from How Appealing

Labor Relations

• NLRB Nixes Policy Prohibiting Off-Duty Access to Facility — from In House
• Busted! NLRB Finds Employer’s Prohibition of Sticker Unlawful — from Vorys on Labor
• NLRB Attacks Employee Handbook Rules — from Wyatt Employment Law Report
• “Busted” by Buttons — When Union Propaganda May Be Permitted in Patient Care Areas — from Labor & Employment Law Perspectives

U.S. Chamber of Commerce challenges EEOC over its “unreasonable” enforcement tactics

I’ve written before about federal courts taking the EEOC to task for its overly aggressive litigation tactics (for example, here, here, here, here, and here).

Earlier this week, the U.S. Chamber of Commerce published a 25-page report [pdf] (h/t Wall Street Journal), in which it challenged the EEOC on its “unreasonable” enforcement tactics. According to the Chamber, its analysis of the EEOC’s enforcement and litigation strategies “reveals an agency which often advances questionable enforcement tactics and legal theories.” For example:

• EEOC will pursue investigations despite clear evidence that any alleged adverse action was not discriminatory—such as terminating an employee caught on videotape leaving pornography around the workplace.
• EEOC investigators propose large settlement figures, only to dismiss the case entirely upon rejection of the offer, making the whole basis of the original settlement offer intellectually dishonest and turning a supposedly neutral investigation into nothing more than a “shakedown.”
• A federal case in which the judge criticized EEOC for using a “sue-first, prove later” approach. 
• A federal case brought by EEOC which the judge described as “one of those cases where the complaint turned out to be without foundation from the beginning.” 
• A federal case in which the judge criticized EEOC for continuing “to litigate the … claims after it became clear there were no grounds upon which to proceed,” describing the EEOC’s claims as “frivolous, unreasonable and without foundation.”

The report also challenges the EEOC’s amicus program, in which, according to the Chamber, federal courts rejected the agency’s legal interpretations (premised on its formal enforcement guidance and other policy statements) approximately 80% of the time.

From all of this data, the Chamber concludes:

Combating discrimination in the workplace is a worthy goal and one that the Chamber supports. However, … EEOC’s abusive enforcement tactics can no longer be ignored. While some federal judges are pushing back in some cases, EEOC clearly has not received the message. Moreover, relying on judges as the final check on EEOC enforcement is often a case of “too little, too late”: by that time, employers have already spent significant time and resources defending themselves against unmeritorious allegations. In other words, even when employers win, they lose.… 

What’s more, the courts’ rejection of EEOC’s underlying regulatory guidance leaves employers searching as to where to find accurate, reliable guidance on their legal obligations under federal non-discrimination laws. And, with a fully staffed Commission several new guidance positions are possible on a broad range of topics including: wellness plans, reasonable accommodations, pregnancy and national origin discrimination and credit-related background checks.

While the entirety of the 25-page report is intellectually interesting to employers, it doesn’t mean a hill of beans if the EEOC sues you. As we all know, lawsuits are expensive. It could cost you millions of dollars to prove the EEOC wrong. I doubt you want to spend millions defending one lawsuit? So what are you to do? Sadly, you are to do what the EEOC says, or risk ending up in the agency’s money-vacuum crosshairs.

Yet, I believe that the EEOC does not care how many times federal courts rebuke its litigation tactics—that the mere threat of an expensive enforcement action is sufficient deterrent for the agency to put forth its enforcement agenda. For example, is the EEOC correct that credit and criminal checks always have a disparate impact on minorities, no matter why an employer uses them? Probably not. But, the alternative is a potential million-dollar lawsuit. The agency is making law by the threat of lawsuits. This legislation-by-extortion is dirty pool, and undermines all of the good the agency does to promote equal rights for all in employment.

A rock-and-roll employment lesson, via the Old 97’s

Last Thursday night, I took my daughter to see the Old 97’s. By way of backstory, Norah performed an Old 97’s song, The New Kid, during her first concert for School of Rock back in January. I tweeted the link to the video to the band’s lead singer, Rhett Miller, who was kind enough (and cool enough) to tweet back, as was the band, who called Norah “badass.” The band was also nice enough to share the video on their Facebook page.

Thanks to a kind gesture from a good friend, Norah and I got to go backstage before the show to meet Rhett. He remembered Norah’s performance from YouTube, they talked about school and his 8-year-old daughter, he told her to call him when she gets her first paying gig, and he posed for some pictures.

The downside of going backstage before a SRO show, however, is that we lost our front-of-stage spot. The upside of going to a concert with an 8-year-old is that she can wiggle her way back through the crowd, and I get to say, “Excuse me, I can’t lose my kid.” Norah found her way back to the front of the stage, right in front of guitarist Ken Bethea, and managed to sit on the stage for the entire concert.

Being that close, I could see the setlist taped to the stage. It certainly appeared to me that the band changed their set mid-show to add The New Kid. Before the song, Rhett talked about Norah and her YouTube video, and called her “a cool kid”. And all these people around us start saying to Norah, “Oh my god! You’re the girl from YouTube. You rock!” Knowing her, I’m surprised she didn’t stand up and take a bow.

During Big Brown Eyes, Rhett appeared to look right a Norah, and, with a big smile, sang the line, “You made a big impression for a girl of your size.”

Rhett name checked Norah again while apologizing to her for the swearing during the show (sorry, video NSFW).

At the end of the show, Rhett walked up to Norah and said, “Norah, this is for you,” and handed her his pick. She was beaming.

It was a magical night for Norah, and I am so happy I got to share it with her. BTW, the band is great live, and if they are in your area, this summer or any other time, you should definitely check them out.

Employers, here’s your homework assignment. Create some magic for your employees. Rhett could have said no when someone asked if we could come backstage, but he didn’t. He didn’t have to change their setlist to add a song, but he did. In fact, he didn’t have to do anything to make Norah feel special, but he did—more than most in his situation would have—and he nurtured a fan for life.

You can (and should) do the same for your employees. And you don’t need big, expensive gestures. The small things count. Here are a few ideas to engage your employees, demonstrate your appreciation of them, and keep them content and engaged:

• Ask peers to nominate and vote for an employee of the month, whom you recognize with a plaque and gift certificate to a local restaurant.
• Start a staff-appreciation program, in which employees earn points for behavior you want to incent (such as attendance or punctuality), and can trade in those points for rewards (such as an extra vacation day).
• Randomly provide longer lunch breaks, in recognition of jobs well done.
• Circulate department or company-wide emails to praise employees when they have successfully completed a project or otherwise done something worthy of recognition.
• And, the easiest one of all, pay praise forward. If one employee says something nice about another, make sure the recipient knows about it, as soon as possible.

EEOC cracks down on employer’s "English-only" rule

The EEOC yesterday announced that it has filed a lawsuit against a Wisconsin metal and plastic products manufacturer, claiming that it fired a group of foreign employees because of their national origin. According to the lawsuit, each of the 10 fired employees received overall satisfactory ratings on their annual performance evaluations, but received mark-downs for their English skills, which the EEOC alleges were not needed to perform their jobs.

According to EEOC Chicago Regional Attorney John C. Hendrickson:

Our experience at the EEOC has been that so-called “English only” rules and requirements of English fluency are often employed to make what is really discrimination appear acceptable. But superficial appearances are not fooling anyone. When speaking English fluently is not, in fact, required for the safe and effective performance of a job, nor for the successful operation of the employer’s business, requiring employees to be fluent in English usually constitutes employment discrimination on the basis of national origin—and thus violates federal law.

I initially addressed this issue almost seven(!) years ago in a post entitled, English-only workplaces spark lawsuits. English-only rules are legal as long as the employer can show a business need for the policy (for example, inter-employee communication or workplace safety). An overly restrictive rule (for example, prohibiting non-English-speaking in non-work areas such as the lunchroom), however, might violate Title VII’s prohibition against national origin discrimination. You can read my original post to learn the ins and outs of this interesting issue that has caught the EEOC’s attention.

In this case, the EEOC alleges that the employer penalized the employees for English fluency in non-essential functions. If you intend to enforce an English-only rule, make sure you can justify the nexus between English fluency and job performance. For example, would safety or efficiency be impacted if employees cannot communicate in English? Does the job require interaction with non-employees, such as vendors or customers? If you can demonstrate a nexus between English proficiency and essential job performance, your English-only policy will have a much greater chance of surviving EEOC scrutiny.

Equal treatment in workplace misconduct helps avoid an ugly discrimination claim

Matthew Caiazza worked as a nurse at Mercy Medical Center. He would often take smoke breaks with Jennifer Jones, a food services worker.

On August 28, 2010, Jones reported to her supervisor that during one of the smoke breaks, Caiazza had inappropriately touched her breast outside of her clothing. Caiazza explained that Jones asked him to touch her breast in exchange for Vicodin. When he told her that he could not give her any Vicodin, she said he could touch her breast anyway, which he did. Jones reported the incident to HR, who compelled Caiazza to resign. He sued, alleging, among other claims, sex discrimination.

In Caiazza v. Mercy Medical Center (6th Cir. 5/27/14), the appellate court concluded that because of the unequal treatment doled out to the two culpable parties, Caiazza’s sex discrimination claim should proceed to a jury trial. 

Given … Mercy’s concession that the sexual contact during [Caiazza’s] smoke break off property was consensual, there is a clear disparity of treatment between [Caiazza] and Jones.

Parties who are equally culpable in workplace misconduct should be treated equally. If the parties are of different sexes, races, ages (substantially younger), etc., then the “should” turns into a “must.” Disparate treatment is, well, disparate treatment, which, as this case points out is a Title VII no-no. 

WIRTW #324 (the “Wir werden du bald sehen” edition)

I have used this space to write a lot about my family. You know I’m married, have two amazing children, Norah and Donovan, and a dog. But, you may not know that my family includes a teenager too. We call her our German daughter. She’s been living with us for the past 10 months. Next week, she leaves us to go home. You never know what the experience will bring when you permit someone to share your home and your lives for a year. We hoped for the best, and with our year coming to a close, I can say we got it. We gained another member of family, albeit one that lives more than 4,000 miles away. I will always think of Zarah as our German daughter.

For more on the experience, please read my wife’s thoughts on her blog.

As for Zarah, this is not, “Auf Weidersein,” but, “Wir werden du bald sehen.”

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

Discrimination

• Sex at work: test your knowledge! — from Robin Shea’s Employment and Labor Insider
• Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs — from Donna Ballman’s Screw You Guys, I’m Going Home
• The EEOC is Focusing on Systemic Harassment. So Should You. — from Jonathan Segal
• Does Telling Me To Stop Complaining Count As Discrimination? — from Evil Skippy at Work
• Miles on Pregnant Workers Fairness Act — from Phil Miles’s Lawffice Space
• “Racism In The Everydayness” — from Employment Discrimination Report

Social Media & Workplace Technology

• “This man says he’s willing to die so he can post naked pictures without getting fired” — from How Appealing
• Why Social Media is Becoming an HR Issue — from GMS Blog
• Employers crack down on social media abuse — from Business Management Daily
• 20 cool iOS 8 features that Apple barely even mentioned at WWDC 2014 — from Boy Genius Report

HR & Employee Relations

• What Single Policy Could Ease Americans’ Time Crunch? — from Time
• Employment at-will trumps the 2nd Amendment (Yes, you can fire the employee who shoots a gun at work) — from Eric Meyer’s Employer Handbook Blog
• By 2020 Millennials Will Represent 40% of the Workforce. Are You Ready? — from Blogging4Jobs
• Employment Protections for Medical Marijuana — from Minnesota Employer

Wage & Hour

• FLSA Transparency Threat Persists — from Compensation Cafe
• Overhauling overtime — from HR Hero Line
• Telecommuters, Minimum Wage and Overtime — Oh My! — from The Emplawyerologist
• FLSA Overtime, Minimum Wage Lawsuits Continue to Skyrocket — from Wage & Hour Insights

Labor Relations

• One Is the Loneliest Number….But Even Acting Alone Employees May Be Engaged in Concerted Activity — from All in a Day’s Work
• NLRB Round-up: The Long Arm of Labor Law — from Blogging4Jobs
• Threatening the boss: the NLRB weighs in — from Michigan Employment Law Connection
• NLRB Finds Employee’s Profane and Insubordinate Conduct Shielded by Protected Activity — from Labor Relations Today

Federal court blows up EEOC's stance on medical leaves of absence

I had this long elaborate post written about Hwang v. Kansas State University (5/29/14) [pdf], in which the 10th Circuit court of appeals held an employer did not have to offer a leave of absence greater than six months to accommodate an employee’s disability, and that an employer can have an inflexible leave of absence policy that places a hard cap on an employee’s medical leave of absence.

Grace Hwang, an assistant professor at Kansas State University, signed a written one-year teaching contract. Before the start of fall term, Ms. Hwang was diagnosed with cancer.  She sought, and the University granted her, a six-month (paid) leave of absence for treatment.  Near the end of her leave, Ms. Hwang’s doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer semester. The University, however, refused, citing an inflexible policy allowing no more than six months’ time off.  In response, she sued, claiming that by denying her more than six months’ leave the University violated the Rehabilitation Act.

The 10th Circuit held that Hwang’s need for an extended leave of absence disqualified her from the protections of the disability discrimination laws:

Still, it’s difficult to conceive how an employee’s absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.… 

Neither is there anything inherently discriminatory in the fact the University’s six-month leave policy is “inflexible,” as Ms. Hwang would have us hold. To the contrary, in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled—by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency. 

My post would have provided you insightful analysis of Hwang, discussing how this case in an outlier. That employers should still think long and hard (and only after engaging in the interactive process) before denying an extended unpaid leave of absence under the ADA. And that employer’s are most safely served by having a flexible leave of absence policy instead of a hard-capped one.

But, three of my favorite employment law bloggers beat me to the punch with their own thoughts.

• Are Inflexible Leave Policies Lawful After All? One Court Leaves Employers Salivating — from Jeff Nowak’s FMLA Insights
• Just how badly did a federal appellate court trash extended leave as a reasonable accommodation? — from Eric Meyer’s Employer Handbook Blog
• Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes. — from Dan Schwartz’s Connecticut Employment Law Blog

Jeff went so far as to Twitter-challenge me to pick the best of the three posts.

@danielschwartz @Eric_B_Meyer, we all were thinking the same blog post this weekend. Should we have @jonhyman vote on which 1 is best? :)
— Jeff Nowak (@jeffreysnowak) June 3, 2014

Haven’t I already done enough?

What the f‽ NLRB allows employee to curse out the boss

During a meeting about commissions, minimum wage, and employee breaks, an employee lost his temper, angrily calling his supervisors words such as “f***ing mother f***ing,” f***ing crook[s],” and an “a**hole.” He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14) [pdf], the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.

We conclude that affording the Act’s protection to Aguirre here serves the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s interest in maintaining order and discipline in its establishment because the outburst was not witnessed by, and was not likely to be witnessed by, other employees. Thus, Aguirre’s outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the Respondent chose the location of meeting in the manager’s office where the outburst occurred; and no employee overheard Aguirre’s obscene and denigrating remarks to the owner.

We also conclude that affording the Act’s protection to Aguirre will further the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s legitimate interest in maintaining workplace discipline and order for the additional reason that the Respondent provoked Aguirre’s outburst…. Aguirre’s outburst occurred contemporaneously with Plaza’s twice suggesting that Aguirre could quit if he did not like the Respondent’s policies, Plaza’s censure of Aguirre’s protected activities as a lot of negative stuff, and Plaza’s telling Aguirre that he should not complain about Respondent’s pay structure, all of which made clear that he would not engage in the merits of Aguirre’s complaints.

This case should be troubling to all employers. Apparently, we live in a world in which an employee can call his boss a f***ing mother f***er” and get away with it, merely because it was said during a meeting in which the employee also happened to be discussing certain working conditions. If an employer cannot enforce reasonable restrictions agains insubordination (especially to this level), then we are. It that far from the NLRB letting the chickens run the workplace henhouse. How will employers be able to effectively manage then?

[Hat tip: Today’s General Counsel]

A black and blue lawsuit: Tiffany & Co. sued for race discrimination

My dog’s name is Loula Mae. “Loula” is name of the dog on the kids cartoon Pocoyo, which my son was obsessed with when we got her. “Mae” just sounded right to pair with Loula, and gives her a bit of a gentile, southern charm. Little did we know, however, that the birth-name of Holly Golightly, the iconic lead played by Audrey Hepburn in Breakfast at Tiffany’s is also Lula Mae. Now we know why our dog is so damn classy.

I only tell this story because today’s post is about the famous jewelry store, Tiffany & Co., which has gotten itself into a little legal mess over the racial composition of its management team and its alleged treatment of its lone African-American manager.

The New York Times reports that Michael McClure, a group director Tiffany since 1993, has sued the jeweler, claiming a “systemic, nationwide pattern and practice of racial discrimination.” According to McClure’s lawsuit, he is the only African-American to hold one of the more than 200 management positions at Tiffany. He further alleges that that despite consistently glowing reviews since his hire, the company gave him a “warning for termination” earlier this year. McClure claims that his new boss provided that warning after meeting McClure for the first time, and then telling a group of vice presidents that he was surprised “a black man is representing the Tiffany brand.”

A lawsuit is merely a collection of alleged, unproven facts. For its part, Tiffany says that the lawsuit is meritless, and that it “welcome[s] and value[s] diversity in all forms.”

An employer like Tiffany likely does not have any affirmative action requirements—that is, it does not have an obligation to hire a racially balanced workforce. Having said that, however, it does not look good when defending a race-discrimination lawsuit if only 0.5% of your managers are African American. Companies should hire the best employees and fire the worst. Yet, you also need to think about what your business looks like, if for no other reason than having an “almost-all-white” management team is not going to make it any easier to defend the race claim brought by your lone black manager.

photo credit: Shereen M via photopin cc

Employers beware: EEOC appears to be stepping up disability discrimination enforcement

Last month, the EEOC announced that it was seeking “public input on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973.” That Act governs employment of individuals with disabilities by the federal government, and was the ADA’s precursor. Without explanation, the Rehabilitation Act’s regulations impose an obligation on federal agencies to be “model employers” of individuals with disabilities; the EEOC is seeking to revise those regulations to provide a detailed explanation of that “model employer” obligation.

On the heels of that news, 10 of the 22 lawsuits filed or settlements reached by the EEOC in May included allegations of disability discrimination. That’s a .455 batting average for the ADA, which is none too shabby in anyone’s book. Some of the issues addressed by the EEOC in the past month include—

• A $72,500 settlement with an Akron, Ohio, medical transportation services company, which fired an EMT-paramedic with multiple sclerosis instead of providing additional leave as a reasonable accommodation.
• A $110,000 settlement with Norfolk Southern Railway Company, which medically disqualified a track maintenance worker because of degenerative disc disease without doing an individualized assessment of whether he could perform the essential functions of his job.
• A $90,000 settlement with a Tennessee nursing home facility, which terminated an HIV-positive nurse. 
• An $18,000 settlement with an Alabama athletic apparel retailer, which fired a legally blind sales clerk (who lost his full use of his sight while serving in the Army) without any consideration of whether an accommodation, such as a magnifying glass or a new computer monitor, might be reasonable.
• A lawsuit claiming a Wisconsin energy company fired an wheelchair-bound employee instead of providing his requested reasonable accommodation of an automatic door opener.
• A lawsuit claiming a Tennessee steel company refused to hire an applicant for a maintenance position after learning through a pre-employment medical examination that the applicant took prescription medications for an anxiety disorder and high blood pressure.
• A lawsuit claiming a Connecticut electrical contractor refused to hire a dyslexic carpenter, without first exploring any possible reasonable accommodations for his disability.

What do all of these cases have in common? They all involve employers that failed, in some way, to engage an employee or applicant in the interactive process to determine if he or she could perform the essential functions of the job with, or without, a reasonable accommodation. Instead, the employer appears to have made snap judgments based on the individual’s disability and related stereotypes.

Disability discrimination is very much on the EEOC’s radar. Is your business sufficiently protected? Answer these questions—

• Do you have a reasonable accommodation policy? 
• Do you have accurately written job descriptions? 
• Do your managers and supervisors know what the interactive process is, and how to engage in it? 
• Have you trained your employees on disability awareness and reasonable accommodations? 

Unless you have answered “yes” to each of these important questions, your business is exposed to potential disability-discrimination issues. Considering how closely the EEOC is looking at these issues, is this risk is one your business wants to take?

photo credit: ratsinis via photopin cc

WIRTW #323 (the "why I hate lawyers" edition)

YouTube is filled with examples of lawyers behaving badly. Yet, this example from Above the Law, entitled, “Pro Tip For Lawyers: Don’t Threaten To ‘Anally Rape’ Adversary,” takes the cake. Here’s a small taste:

You pissed off the wrong attorney. You want to beat up women and then play games with the legal system… well then you will get exactly what you deserve. After I get [my client] out of jail I’m going to gather all the relevant evidence and them I’m going to anal rape you so hard your teeth come loose. I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little [expletive deleted]. I’ve got you in my sights now.

The most astounding part? The lawyer posted this threat on Facebook. Good grief. 

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

Discrimination

• Can Employers Win a Case Where a Single Use of the N-Word Is Alleged? Perhaps — from Dan Schwartz’s Connecticut Employment Law Blog
• Stupid “discrimination” complaints: How should an employer handle? — from Robin Shea’s Employment & Labor Insider
• An ADA accommodation just has to be reasonable—not the employee’s first choice — from Eric Meyer’s The Employer Handbook Blog
• Don’t Lick Your Lips at Me. That’s Harassment! — from California Employment Law
• Disability-Related Inquiries: Don’t Ask! — from Employment Discrimination Report
• Age discrimination or legitimate termination? Firing a 65-year-old can be tricky — from HR Hero Line
• Avoid Accidentally Revealing Your Age with Your Email Address — from Lifehacker
• Pregnant Workers Need More Protection than Walmart’s Giving Them — from Workplace Fairness

Social Media & Workplace Technology

• How to grant employees access to social media at work — from Ragan.com
• O’Brien and the NLRB on Social Media — from Workplace Prof Blog

HR & Employee Relations

• My Boss Called Me Out Of The Delivery Room When My Wife Was In Labor — from Evil Skippy at Work
• Are Your Employees Takers or Givers? — from Molly DiBianca’s Delaware Employment Law Blog
• NPR and Progressive Radio Network on workplace bullying — from Minding the Workplace
• Are U.S. Employees Overworked or Not? — from Families and Work Institute Blog
• Are Employers Adapting to EEOC Guidance on Employment Background Checks? — from employeescreenIQ Blog
• There’s No Place in Your Workplace For Bullying Behavior — from TLNT
• Beyond Flip-Flops: Dress Code Policies for All Seasons — from ERC Insights Blog

Wage & Hour

• Number Of Wage And Hours Cases Increases For 7th Straight Year — from Overtime Lawyer Blog
• Before You Hire Those Summer Interns…. — from The Emplawyerologist
• Department of Labor Sets FLSA Regulation Deadline for November 2014, Final Regulations Unlikely to Arrive Before Spring 2015 — from Wage & Hour Insights

Labor Relations

• Uber, Lyft, & Sidecar Drivers Vote to Form Union in Seattle — from Blogging4Jobs
• Organized labor continues to branch out — from HR Hero Line

Why you should be paying your interns

Unpaid interns have been on the DOL’s hit list since 2010. I’ve warned employers that most unpaid internships have gone the way of the dodo, and you should be paying your interns at least the minimum wage, and overtime, for hours worked in excess of 40 in a week.

Now, we have some meat to put on the bones of this information. In Grant v. Warner Music Group Corp. (S.D.N.Y. 5/13/14), a former student intern for Warner Bros. Records sought a nationwide collective action on behalf of all similarly situated student interns, claiming that the company misclassified him exempt from the FLSA’s minimum wage and overtime requirements. The named plaintiff alleged that he typically worked 50 or more hours in a week performing the same type of work as paid employees, but was not paid and did not receive academic credit.

The FLSA only requires a “modest factual showing” for a court to certify a putative collective action, and authorize opt-in notices be sent to potential class members. In this case, the court concluded that Grant made that showing by putting forth facts that he and others suffered under a common policy or plan that violated the FLSA. Warner Bros. now has a nationwide wage-and-hour lawsuit to defend.

The burden for a court to certify a collective action under the FLSA is low, yet the risks are high. Many issues under the FLSA are fact-specific and rest on razor-thin distinctions. Unpaid interns, however, are the low-hanging fruit of the wage-and-hour laws. The money you will spend defending a wage-and-hour collective lawsuit will dwarf the money you would save by classifying your interns as “unpaid.” If you use the services of interns pay them, unless they are students, receiving academic credit for the internship, and the work they are performing for you is bona fide training and instruction to them. Otherwise, you are taking a huge gamble that is difficult to win.

NLRB judge gives booby prize to Hooters' workplace policies

In Hooters of Ontario Mills [pdf], an NLRB Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal polices in its employee handbook.

Alexis Hanson, a Hooter Girl in an Ontario, California, outpost of the beer-and-wings establishment, complained to management that she believed that bar’s annual bikini contest was rigged. After the contest, she was terminated for “cursing at” the winner and the store’s Marketing Director. When she protested that she hadn’t cursed at anyone, the manager changed her tune and told Hanson, “Okay. Well, then you are being terminated for your negative social media posts.”

The ALJ concluded that Hanson’s discharge was unlawfully motivated by her protected concerted activity (i.e., her complaints to the manager about the bikini contest). The ALJ was persuaded by the fact that the employer had failed to conduct an investigation before firing Hanson, and also by its shifting reasons for her termination. 

The ALJ also concluded that a variety of policies in the restaurant’s employee handbook were overly broad violations of employees’ rights to engage in protected concerted activity:

• NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination.
• Insubordination to a manager or lack of respect and cooperation with fellow employees or guests may result in discipline up to and including termination.
• Disrespect to our guests including discussing tips, profanity or negative comments or actions may result in discipline up to and including termination.
• The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party may result in discipline up to and including termination. This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
• Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by coworkers and clients. Refrain from posting negative comments about Hooters or coworkers. In all cases, NEVER publish any information regarding a coworker or customer.
• Any other action or activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business may result in discipline up to and including termination.

What are the takeaways from this case?

1. These employees were non-union. This case serves as a reminder that the NLRA’s protected-concerted-activity rules apply to union and non-union shops.
2. It’s debatable whether complaints about a workplace bikini contest constitute protected concerted activity. In this case, however, the ALJ appeared to be more persuaded by what the manager did not do in response to the complaints, as opposed to what the employee complained about. The manager did not investigate, and did not maintain a consistent reason for the termination. In other words, the reasons given for the terminated seemed to be a pretext to cover up something else—retaliation for Hanson’s protected concerted activity. The moral of this story? No matter the situation, thorough investigations and maintain a consistent story will save your bacon in many workplace lawsuits.
3. As often happens in theses cases, the termination served as an entre for the NLRB to review (and overturn) workplace policies as overly broad. If you don’t want the NLRB to see your policies, don’t fire employees for protected concerted activity. Most of these cases get to the Board because someone was fired, not because someone just decided, out of the blue, to challenge a handbook.

Prejudice vs. Racism: Please don't confuse the two

Last week, Inc. interviewed the billionaire, entrepreneur owner of the Dallas Mavericks, Mark Cuban. In light of Donald Sterling, racism was one of the topics covered. Mr. Cuban’s candid and honest response has sparked a wave of controversy:

If I see a black kid in a hoodie and it’s late at night, I’m walking to the other side of the street. And if on that side of the street, there’s a guy that has tattoos all over his face—white guy, bald head, tattoos everywhere—I’m walking back to the other side of the street. 

While we all have our prejudices and bigotries, we have to learn that it’s an issue that we have to control, that it’s part of my responsibility as an entrepreneur to try to solve it, not just to kick the problem down the road.…

Mr. Cuban has been wrongly crucified for his candor. Prejudice is human nature; it’s not bigotry or racism. We all hold prejudices. Bigotry and racism, however, imply intentional hatred. Crossing the street late at night because you see someone in a hoodie coming towards you does not mean you hate that person because you assume he’s black. Instead, it means you’ve been influenced by what you’ve seen, heard, or experienced, and that influence is causing a reaction.

Here’s the difference, from a Title VII perspective. If you learn of race-based comments or action in the workplace, you have an obligation to investigate and take appropriate corrective action reasonably to ensure that it doesn’t happen again. If you are dealing with racism, no corrective action will halt the behavior, and the only likely response is termination. If, however, you are dealing with unconscious prejudices, you can use the incident as a learning tool to open a dialogue with your employees about race.

In managing employees, it is unrealistic to expect them to hold no prejudices. Recognizing this fact is the first step to managing race in our workplaces.