You cannot fire an employee who asks for time off for his pregnant wife's medical appointment

One of the very first posts I ever wrote on this blog, all the back in May of 2007, detailed the EEOC’s then-recent publication of enforcement guidance on what it called caregiver discrimination. It seems that more than seven years later, some employers still haven’t gotten the message. Consider, for example, Rice v. Kellermeyer Company (N.D. Ohio 7/15/14).

In early 2012, Ronald Rice, the VP of Sales at Kellermeyer, announced to his co-workers that his wife was pregnant with their first child. On June 6, Rice requested permission to use vacation time from June 11 through June 15, in part because of “an unexpected appointment” for his pregnant wife. Rice’s supervisor declined to permit Rice to use paid leave for June 14 and June 15, and told him that if he “chose to take those days off, they will be unpaid.” Rice then requested FMLA paperwork from the director of human resources, to enable him to attend the appointment. Three days later, he was fired.

With these facts, the district court showed no hesitation in denying the employer’s motion for summary judgment and sending this case to a jury to decide.

In writing about this case on his FMLA Insights blog, Jeff Nowak said, “We have to stop sticking it to pregnant moms and expectant dads.” He’s 100 percent correct. We have a parental crisis in this country. No one should have to choose between a job and “an unexpected appointment” for one’s expectant wife. More broadly, no one should have to choose between a job and a family responsibility or event. 

Employers, we are facing a crisis over the issue of parental leave. The more stories we hear like Ronald Rice’s, the louder the cry will become for Congress to step in and fix this problem legislatively. Do you want new laws passed that will mandate expanded parental leave for more employers, or do you want the FMLA to remain as it is? As long as there exists employers like the employer in this case, the cry for expanded parental leave rights will continue. Eventually, it will become too loud for Congress to ignore. Be proactive with these issues in your own workplace, or Congress will become reactive. The choice is yours.

WIRTW #330 (the “be careful what you post” edition)

You’d think that people would know better than to post a private conversations with one’s attorney over a public social network. Kaiser v. Gallup, Inc. (D. Neb. 7/8/14) (h/t We Know Next) is an ADA case. During discovery, the employer learned that the plaintiff had communicated, via Facebook, with her cousin-lawyer about her termination. The plaintiff claimed that the attorney-client privilege shielded the communications from discovery. The employer argued that the plaintiff waived the privilege through the public nature of the discussion on Facebook. When the plaintiff couldn’t show otherwise, the court ordered the communication to be produced.

No one should ever share confidential information on social media. Posting something on Facebook (or Twitter, etc.) is tantamount to publishing it on the front page of your local newspaper.  If something is a secret, keep it that way by keeping it off social media.

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

Discrimination

• Yes, sexual harassment plaintiff, you can shoot yourself in the foot. Here’s how. — from Robin Shea’s Employment and Labor Insider
• Is it discrimination to favor a workplace shortie (shawtie?) over her male subordinates? — from Eric Meyer’s The Employer Handbook Blog
• Court Upholds $3.7 Million Age Discrimination Verdict Against IBM — from The Employment Brief
• Sexual Harassment Claims May Arise As The Result Of Workplace Affairs — from Atlanta Employment Lawyer Blog
• Employment Law 101: Pregnancy Discrimination — from Texas Employer Handbook
• Do you engage in Ugly-ISM? — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• HR Emoji Etiquette — from The Tim Sackett Project
• The Dark Side of Silicon Valley: A Tech Space-Driven Drug Culture — from TLNT

HR & Employee Relations

• There Are Many Ways to Milk a Cow and Not All Are Protected Trade Secrets — from Trading Secrets
• Bill Introduced in House Would Create Federal Private Right of Action for Trade Secret Theft — from Trade Secrets and Noncompete Blog
• Is Your Non-compete Agreement Enforceable? Not Without a “Reasonable Competitive Interest?” — from Michigan Employment Law Advisor
• What It Will Take to Fix HR — from Harvard Business Review
• Looming labor and employment lawsuits: How do they affect your business? — from Employment Intelligence

Wage & Hour

• Senate Bill Seeks to Change FLSA Overtime Compensation Standards — from Employment Lawyer Blog
• LIRR Strike Averted, but Employers Should Remain Aware of Wage and Hour Requirements When Outside Events Prevent Workers From Reaching the Workplace — from Employment Matters Blog
• Dear Employers: We Have to Stop Sticking It to Pregnant Moms and Expectant Dads — from Jeff Nowak’s FMLA Insights
• Employers are dropping the ball on benefits education — from HR Cafe

Labor Relations

• Labor Unions Want Your Email System Too! — from Troutman Sanders HR Law Matters
• McDonald’s Already Knows How to Manage Its Franchisee Labor Practices — from Harvard Business Review
• Labor Disputes On the Rise in the US — from Blogging4Jobs
• The NLRB decison in Macy's: Resistance is futile. — from Michigan Employment Law Connection
• Top 10 NLRB Issues to Monitor the Rest of the Year — from Labor Relations Today
• How Many Unions Can Your Workplace Support? — from Vorys on Labor

6th Cir. invalidates individual waivers of FLSA collective action participation

The wage-and-hour class or collective action lawsuit is one of, if not the, greatest risk facing employers. Many of these lawsuits are filed by disgruntled ex-employees. And, many employers seek to limit their risk by securing waivers from employees, in which employees covenant not to participate in such a lawsuit, typically in exchange for severance pay or some other consideration. Increasingly, however, these waivers have come under fire.

The most recent attack comes from the 6th Circuit, which, in Killion v. KeHE Distributors (6th Cir. 7/30/14) [pdf], held that severance-agreement waivers of one’s right to participate in an FLSA collective action are invalid.

The key facts of Killion are simple. KeHE distributes specialty ethnic and health foods to retailers. In early 2012, it discharged 69 sales reps as part of a restructuring. KeHE offered a severance package to each affected employee, in exchange for a release a claims, in addition to a promise “not to consent to become[ ] a member of any class or collective action in a case in which claims are asserted against the Company that are related in  any way to [their] employment or the termination of [their] employment with the Company.”  As part of a later-filed FLSA collective action seeking unpaid overtime, the plaintiffs sought to include the 69 laid-off sales reps and invalidate the collective action waivers set forth in their severance agreements.

The 6th Circuit held that the waivers were invalid. It concluded that any agreement that deprives one of his or her rights under the FLSA is invalid. Because the waiver deprived the employees of their right to participate in the collective action, it was invalid.

The employer argued that the at-issue agreement does not deprive anyone of any rights, since each employee is free to pursue and individual claim against the company for FLSA violations. The court, however, was not persuaded. Instead, the court concluded that because each employee’s potential claim for unpaid overtime was relatively small, the only real opportunity to pursue the alleged FLSA violation was via a collective action.

Requiring an employee to litigate on an individual basis grants the employer [a] competitive advantage…. And in cases where each individual claim is small, having to litigate on an individual basis would likely discourage the employee from bringing a claim for overtime wages.

As the Killion court points out, this decision now creates a split of authority between the 6th other Circuits. The Killion court also pointed out, however, that every other circuit that has decided this issue in the employer’s favor has done so because the agreements also contained arbitration clauses; the agreement in this case lacked that mechanism. It will be interesting to follow if this employer pursues this matter to the Supreme Court, and if that Court is interested in this important issue, or if other circuits follow Killion’s lead in the non-arbitration context.

For now, at least in the 6th Circuit, it appears that individuals waivers of the right to join wage-and-hour collective actions are dead.

NLRB seeks to supersize its joint-employer standard

The NLRB is waging war on employers, and it’s drawing its latest battle line at the McDonald’s drive-in. Yesterday, the NLRB Office of General Counsel announced that it has authorized complaints against 43 different McDonald’s franchises; it also announced that in each case it will issue a complaint against the franchisor, McDonald’s, USA, LLC. The problem, however, that in no case does McDonald’s own the restaurant or employ the workers. Instead, McDonald’s merely licenses its trademarks and operating procedures to the local franchisees. The franchisees, in turn, hire, fire, discipline, pay, and take all other responsibilities for the employees. As a “joint employer,” however, McDonald’s will share liability with the direct employer as if it stood in their shoes.

This announcement by the NLRB is its latest salvo in a war it is waging against employers. In May, the NLRB asked for interested parties to file briefs on the issue of whether the NLRB should revisit its joint-employer standard.

Under the current joint-employer standard, to which the NLRB has adhered for at least 30 years, the Board looks to whether the employer exerts direct and meaningful control over matters related to the employment relationship, such as hiring, firing, discipline, supervision, and direction. The current iteration of the NLRB, however, seeks to loosen the rules to find joint employment whenever one wields sufficient influence over the working conditions of the other entity’s employees. The operational requirements of a franchise relationship will likely trigger this significant-influence test.

According to the New York Times, McDonald’s plans to contest these decisions. Frankly, it has no choice. If a franchisor is a joint employer with its franchisee, the franchisor would not only share liability for the franchisee's unfair labor practices, but also its wage-and-hour violations, acts of discrimination, and other employment sins, not to mention claims related to employees’ negligence, such as slip-and-falls and food-related claims. This liability will be a tough nut for franchisors to swallow, since they exercise no control and bear no responsibility for the employees.

These cases are far from over. In fact, they are just at their beginning. All that has happened so far is that the NLRB has authorized complaints to issue. Hearings will be held, ALJ decisions will be written, appeals will be taken to the NLRB in Washington, and, ultimately, appeals to federal circuits courts and the Supreme Court. This issue is years from a resolution, but nevertheless warrants notice, as it serves as further evidence of the aggressive pro-union position the current iteration of the NLRB is putting forth.

Will the Ohio Supreme Court eliminate manager and supervisor liability for discrimination?

Ohio’s discrimination is unique in that it allows for the imposition of individual liability against managers and supervisors for their personal acts of discrimination. The case, Genaro v. Central Transport (1999), is the bane of defense lawyers and employers alike. Aside from adding a complicating element to cases by including employees in the matrix of sued parties, it also permits plaintiffs lawfully to add a non-diverse parties and keep cases from being removed to federal court.

There is hope, however, that Genaro may go the way of the dodo. Currently pending before the Ohio Supreme Court is Hauser v. City of Dayton. The specific question presented by this sex discrimination case is whether, under Genaro, Ohio’s employment discrimination statute imposes civil liability upon a manager or supervisor of a political subdivision, or whether such individual enjoys immunity as an agent of such subdivision. If the Supreme Court holds that Revised Code Ch. 4112 specifically imposes liability upon an individual manager or supervisor, then immunity cannot hold. Thus, the Court will have to decide whether Genaro is a valid interpretation of the definition of “employer” under R.C. 4112.01(A)(2).

The oral argument in Hauser offered few hints on how the Court might rule. For companies that have operations in Ohio, Hauser is the most important decision currently pending before the Ohio Supreme Court. To decide this issue of political subdivision immunity, the Court will necessarily have to pass judgment on the continued validity of Genaro and its imposition of individual liability. A ruling against the employee in this case would be a huge win for employers. The elimination of Genero would bring not only bring Ohio in line with federal law, but also with the overwhelming majority of states. It would bring a halt to the gamesmanship of adding individual defendants to lawsuits to keep claims away from federal court. My fingers are crossed that the Court does right by employers in this case. When the Court issues its decision, I’ll report back.

“Unionism” as a protected class?

Way back in 2012, the New York Times published an op-ed titled, A Civil Right to Unionize, which argued that Title VII needs to be amended to include “the right to unionize” as a protected civil right. At the time, I argued that including “unionism” as a protected class was the worst idea ever. Apparently, at least one Congressman disagrees with me.

MSNBC is reporting that later this week Rep. Keith Ellison (D-Minn) “plans to unveil legislation that would make unionization into a legally protected civil right,” on par with “race, color, sex, religion and national origin.” His goal is to make it “easier for workers to take legal action against companies that violate their right to organize.”

I agree with Representative Ellison that employees should never be fired for “expressing an intent to support union activity.” The problem with his idea, however, is that this is a right that the law already protects. Sec. 8(a)(3) of the National Labor Relations Act makes it an unfair labor practice for an employer … by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

So there is no mistake on how I feel about this proposal, here’s what I said in March 2012, in response to the Times’s op-ed on this issue:

With apologies to union supporters, there is no reality in which “unionism” exists on the same level as race, sex, disability, or the other protected classes. The “greatest impediment” to unions isn’t “weak and anachronistic labor laws.” It’s intelligent and strong-willed employees who understand that whatever benefit they might receive from a labor union is not worth the dues that come out of their paychecks.

And, the reality is that despite all of this pro-union rhetoric, labor unions are doing just fine without any additional help. Unions wins more than two-thirds of representation elections. All this proposal does is increase the burden for employers, without providing any appreciable benefit to employees — which is why I feel comfortable asking if this proposal is the worst idea ever.

There is no chance this bill will go anywhere but the legislative trash heap if it’s introduced as promised. Nevertheless, it serves as a good reminder that there exists legislators who want to make you job as an employer harder than it already is.

WIRTW #329 (the “amicus” edition)

The ABA Journal has opened nominations for its annual list of the best legal blogs, known as the Blawg 100. I’ve been fortunate enough to be selected the past four years. The ABA Journal is soliciting opinions for whom to include this year. I’ve already submitted my list. Please take a few moments of your time and do the same. The nomination form is available here, and the deadline for nominations is August 8.

Here’s the rest of what I read this week (and last week):

Discrimination

• Real and Spectacular! A true Seinfeld-ian claim of sexual harassment — from Eric Meyer’s The Employer Handbook Blog
• An in-depth look at the EEOC’s new Enforcement Guidance on pregnancy — from Robin Shea’s Employment and Labor Insider
• Pregnant at work: How you’re protected — from Evil HR Lady, Suzanne Lucas
• Not a “team player” … or sex discrimination? — from EmployerLINC
• Is pregnancy a disability? The true false version — from Understanding the Americans with Disabilities Act
• Hiring Discrimination and Religion: Recent Studies — from Workplace Prof Blog
• Can My Employer Ban Me From Speaking Spanish To Co-Workers? — from Donna Ballman’s Screw You Guys, I’m Going Home

Social Media & Workplace Technology

• How NOT to Produce Facebook Evidence — from Molly DiBianca’s Delaware Employment Law Blog
• Top 10 Social Media Mistakes Made by Supervisors — from Next Blog
• Are You Googling Job Candidates? When You Do, Everyone Loses — from TLNT
• How I’m Trying to Manage My Online Brand — from You’re the Boss Blog

HR & Employee Relations

• What an Employment Lawyer Can Learn From Minecraft (or Not) — from Dan Schwartz’s Connecticut Employment Law Blog
• Work-Life Balance: PepsiCo CEO Says It's a Myth — from Employment Lawyer Blog
• No One Should Have to Choose Between Caregiving and Work — from Harvard Business Review
• Telecommuting Will Increase by 21% by 2016 — from Blogging4Jobs
• How Difficult Is It To Sue Your Employer? — from Evil Skippy at Work
• I was fired for taking a 15 Minute dump — from The Tim Sackett Project
• July BTW: Two New FCRA Class Actions & The Problem with Ban the Box — from employeescreenIQ Blog

Wage & Hour

• Employee lawsuit targeting Apple for unpaid wages gets class action status — from The Verge
• FLSA “Per Diem” Claims On The Rise — from Wage and Hour Laws Blog
• Paralegal’s suit claims law firm should have paid for overtime — from ABA Journal Daily News
• Violating the FLSA may send you to jail — from Mike Haberman’s Omega HR Solutions
• Costly Wage And Hour Mistakes — from Overtime Lawyer Blog
• Defense Appropriations “Wage Theft” Amendment May Bar Employers with FLSA Violations from Defense Contracts — from Wage & Hour Insights
• The FMLA and the “Personal Staff” Exemption — from The Employment Brief
• Obamacare Opinions Galore! — from Phi Miles’s Lawffice Space

Labor Relations

• Subway Franchise Workers Unionize — from Labor Relations Today
• NLRB Overturns Decert Election Based On Employer’s “Promises” Of 401(k) — from Labor Relations Update
• NLRB Seeks to Rewrite Legal Standard to More Easily Find Joint Employer Relationships — from Matt Austin Labor Law
• Macy’s Department Store Workers Allowed to Unionize — from All in a Day’s Work

Customer preference and race discrimination—when the customer isn’t right

The EEOC has sued a Chicago auto parts retailer for race discrimination after it fired an African-American store manager. The store was located in a heavily Hispanic Chicago neighborhood. THe company decided to eliminate or limit the number of non-Hispanic employees working at the store, believing that its Hispanic customers preferred to interact with Hispanic employees. When the manager refused to report to another store, the EEOC claims he was fired.

John Hendrickson, the EEOC’s regional attorney in Chicago, explains in a news release why the agency filed suit.

Fifty years after the adoption of the Civil Rights Act, a major employer transferring an employee simply because of his race and then firing him for not going along is unacceptable. When the employer is a major national brand and a leader in its industry, it’s even worse. Everyone must understand that supposed customer preference is no excuse for discrimination—it’s still illegal, and the EEOC will step in to challenge it.

Mr. Hendrickson is correct. As one federal court explains, “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” Avoid the trap of acting on a mistaken belief that customers will only deal with like-skinned employees. Simply, the customer can never choose the race of the person working for you. The customer might be right about a lot things, but discrimination is not one of them.

Orange is the new sexual harassment lawsuit

Orton-Bell v. State of Ind. (7th Cir. 7/21/14) [pdf] concerns allegations of sexual harassment levied by a substance-abuse counsel at an Indiana maximum security prison against her co-workers and superiors. The allegations break down into two categories:

• Other employees and correctional officers at PCF were having sex on Orton-Bell’s desk. When she complained, a supervisor told her he didn’t care as long as offenders were not involved. Another co-worker suggested she clean her desk every morning.

–and–

• Orton-Bell was called “Cinderella” and “Princess” by male employees.
• She received excessive pat-downs from female correctional officers. 
• On one occasion, Orton-Bell was required to remove her sweater in the shakedown area so that the sweater could be sent through a scanner. This caused Orton-Bell’s spaghetti-strap camisole tank top to be exposed to male employees and offenders.
• Male employees made comments about how the pat-downs were “almost like sex for them.”
• Orton-Bell was not permitted to wear jeans, but male employees were.
• Male employees engaged in a barrage of sexual banter with Orton-Bell in person and via email, including a comment from the male superintendent that “her ass looked so good that it would cause a riot.” 

The court concluded that the sex-on-desk allegations could not support a claim for sexual harassment because she could not prove the conduct, while egregious and offensive, was because of her sex.

The notion that night-shift staff had sex on her desk because she was a woman is pure speculation.… If there were evidence that the night-shift staff were using her office because she was a woman, and her supervisors were indifferent, that would be enough. If there was evidence that night-shift staff similarly used a man’s office, and her supervisors intervened in that circumstance but not in her circumstance, that would be enough. There is neither. Her supervisors’ insensitive and inattentive responses were callous mismanagement; but absent evidence that this inaction was based on her sex, it did not violate Title VII.… 

The conduct was certainly sexual intercourse on her desk, but that does not mean that night-shift staff had sexual intercourse on Orton-Bell’s desk because she was of the female sex. There is no evidence to indicate that, had her conveniently private and secure, but accessible, office belonged to a man, it would not have been used in the same manner. Accordingly, this incident, while egregious, does not support a hostile work environment claim. 

The remaining allegations, however, painted a different story.

The constant barrage of sexually charged comments, however, was clearly pervasive, offensive, and based on Orton-Bell’s sex.… 

The record does reveal an instance where, in an email conversation with a co-worker named Bruce Helming, she participated in vulgar banter. However, while that may lead a jury to conclude that she was not subjectively offended by the environment, one private conversation via email is not enough for us to conclude, as a matter of law, that she was not subjectively offended by the many other public, unwelcome sexually charged comments in the environment.

What does this case teach us?

1. Apparently, after-hours sex on workplace desks between co-workers is a real thing.
2. “Because of sex” has real teeth to it. No doubt, the desk-sex is gross and offensive. Yet, Orton-Bell could not offer any evidence that the use of her desk was for any reason other than the fact that it was located in a private office. Absent evidence that the use of her desk was sex-based, that allegation could not support a harassment claim.
3. An employee’s participation in some sex-based joking can, under the right circumstances, show that the work environment was not subjectively hostile. One email containing vulgar banter with a co-worker, however, likely is not enough. 

Let me leave you with this thought. If your workplace is sexually charged, it will catch up with you eventually. I cannot fathom the difficulties managing employee behavior in a maximum security prison. Nevertheless, Title VII does not stop at the door just because the workplace is inherently hostile. 

[Hat tip: Indiana Law Blog, via Andrew Cohen]

President signs Executive Order banning LGBT discrimination by the federal contractors and government

Yesterday, President Obama amended two prior Executive Orders, adding new protections against sexual orientation and gender identity discrimination. Executive Order 11246, which extends anti-discrimination obligations to federal contractors, now also includes prohibitions against sexual orientation and gender identity discrimination. Executive Order 11478, which already banned sexual orientation discrimination by the federal government, now also includes a prohibition against gender identity discrimination. The provisions affecting federal employees takes effect immediately. Those impacting federal contractors will take effect within 90 days, after the Secretary of Labor implements regulations.

Currently, only 18 states prohibit employment discrimination based on sexual orientation and gender identity. Ohio is not one of them. These amendments will extend these protections to 28 million federal employees and employees of federal contractors. Thus, if you are an Ohio company with federal contracts, this prohibition will apply to you.

It is time for employers to stop invidious discrimination against LGBT employees. According to the White House, 91% of Fortune 500 already prohibit discrimination based on sexual orientation, and 61% already prohibit discrimination based on gender identity. Yet, according to President Obama, “In too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense.… I firmly believe that it’s time to address this injustice for every American.” 

I agree. It’s incomprehensible and unjustifiable for an employer to discrimination on the basis of sexual orientation and gender identity. It’s antithetical to what this country stands for — government of the people, by the people, for the people, and justice for all (no matter with whom they happen to go to bed at night). Eventually, Congress will act, pass ENDA, and make LGBT discrimination a thing of the past. Until then, do right by your employees. Enact policies prohibiting this type of discrimination in your workplace. Send a message that you are an employer of inclusion, and not exclusion. 

When your plaintiff is a prostitute

Let’s say an employee sues your company for sexual harassment. And let’s say the allegations are bad—that the supervisor told the plaintiff he could save her job if she “f***ed” him, after which the supervisor raped her. Like I said, BAD. As an employer, you don’t have a lot of options, other than to hope you have insurance and to know that someone likely is going to write a big check.

Then, you receive a gift—knowledge that the employee might hold a side job as a prostitute. That information doesn’t excuse or defend the supervisor’s actions (which are beyond deplorable), but they do provide an opportunity to lessen the sting of the plaintiff’s damage claim.

Armed with this knowledge, you serve discovery seeking the nature and extent of the plaintiff’s activity as a prostitute/escort. Does the court allow you to take this discovery?

Here’s how one Ohio federal court recently ruled, in Hulec v. JH Bennett & Co.

Plaintiff Hulec requests lost wages and damages for emotional distress. Evidence about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages Plaintiff is entitled to should she win this case. … 

The Court allows limited discovery, through a reopened deposition or interrogatories, into these matters: (1) the general nature of the escort services Plaintiff has offered or performed in the past five years; (2) the frequency with which she has performed those services; (3) her income from those services; and (4) any medical or psychological treatment she received related either to her sexual assault or to other sexual encounters.

In cases like Hulec, victory is differently measured. In this case, a settlement that will not throw the employer into bankruptcy is a win. It is important to do everything you can to lessen the potential pool of damages available to the plaintiff. In this case, that mitigation came in the form of the plaintiff’s other “work.” Don’t give up hope, even in the fact of difficult cases. You pay us a lot of money to defend you. Let us earn that money with our creativity. As long as you are willing to keep an open mind to what it means to “win” a case, we might surprise you.

Should you limit bathroom breaks for employees?

Teamsters local 743 has filed a complaint with the National Labor Relations Board claiming that an Illinois faucet manufacture unfairly disciplined 19 workers for “excessive use” of washrooms. What’s excessive, according to the company? Sixty minutes over the last 10 days, or a mere six minutes per day. 

The company reports that it had to limit bathroom use because employees were spending too much potty time outside their scheduled breaks. According to CNN, the company claims employees lost 120 hours of lost production per month as a result. The Daily Mail reports that the company supposes that employees are spending the time texting instead of taking care of bathroom business. According to the employees’ union rep:

The company has spreadsheets on every union employee on how long they were in the bathroom. There have been meetings with workers and human resources where the workers had to explain what they were doing in the bathroom.

Take note that this issue was brought to a head by a labor union. Do you know how to keep your workplace union-free? 

DON’T IMPLEMENT RULES LIMITING BATHROOM TIME. 

Employees don’t organize over issues like wage or benefits. They organize because they don’t feel like they have a voice with management. Maintain channels of communication. Have an open door through which employees can pass to discuss concerns and air grievances. And, for Pete’s sake, don’t implement Orwellian work rules. What are you supposed to do if an employee is spending too much time in the bathroom texting? Discipline that employee for slacking off. Trust me, your other employees will get the message without you having to limit all of their toilet time to six minutes per day. 

For more on workplace bathroom breaks, including how to implement reasonable bathroom rules in your workplace, read When you gotta go, you gotta go: The right to workplace bathroom breaks.

Employment Law Blog Carnival: The Child of the 90s Edition #ELBC

I’ve been thinking a lot lately about the 1990s. Maybe it’s the fact that they were my formative years in college and law school. Maybe it’s the three-night series I just watched on National Geographic Channel. Maybe it’s the rebirth (and re-cancellation) of Arsenio Hall. Maybe it’s how my daughter is learning Nirvana, Pearl Jam, and the Chili Peppers for her next gig. Or, Maybe it’s just because I’ve been listening to a bit too much Lithium on my satellite radio trying to recapture my youth. Whatever the case, I’m dedicating this, my annual turn at the wheel of the Employment Law Blog Carnival, to the 90s.

So put on your flannel shirts (or blue dresses), bust out your Bill-Clinton sax, and enjoy this grungy Child of the 90s edition of the Employment Law Blog Carnival, as I present the best of the Employment Law Blawgosphere as seen through the lens of ten of the best songs to come out of The Last Great Decade.


Four Leaf Clover — Old 97’s (1997, as covered in 2014)


The Old 97’s recorded this song twice, a countrified version on their debut album, Hitchhike to Rhome, and this rock version for their 1997 breakthrough album, Too Far to Care, which Rhett Miller turned into a duet with Exene Cervenka, singer from the punk band X. Do you feel lucky? Read these 4 Steps to Combat Workplace Discrimination, from Ari Rosenstein’s Small Biz HR Blog, and you might.


Daughter — Pearl Jam (1993)


Eddie Vedder can be a bit hard to understand when he sings. Did you know that this song is about a girl with a learning disability, abused by her family and friends because they did not understand what was wrong with her? Perhaps they needed a lesson in accommodation. Next term, the Supreme Court is going to provide us one on pregnancy discrimination, as Phil Miles reports on his Lawffice Space blog, in SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case.


About a Girl — Nirvana (1994)


Nirvana originally recorded About a Girl in 1988, but it did not become a hit until Nirvana’s MTV Unplugged performance years later. The Beatles inspired Kurt Cobain to write the song. The Supreme Court’s Hobby Lobby decision was about a girl who could not buy certain birth control under her employer’s medical insurance, as Heather Bussing, at HR Examiner, explains in What the Hobby Lobby Case Means.


Weezer — Undone, The Sweater Song (1994)


According to Rivers Cuomo, this song is about that feeling you get when the train stops and the little guy comes knocking at your door. That explanation is as cryptic as the song. Perhaps a better explanation is found in Why employee use of social media “off the clock” may still impact your workplace, from Eric Meyer’s The Employer Handbook Blog. Maybe it’s the same feeling you get if you don’t education yourself about your employee’s off-the-clock social media use.


Hunger Strike — Temple of the Dog (1992)


Temple of the Dog is an amalgam between Soundgarden and Pearl Jam. Did you know that Eddie Vedder, who had flown to Seattle from San Diego to audition for Mookie Blaylock (which would later become Pearl Jam), and was only supposed to sign back-up on Hunger Strike? Chris Cornell, however, so much liked how Vedder sang the song, it ended up as a duet. And, the rest is grunge history. Do you smoke pot (legally, of course)? Then, there’s no hunger strike for you, given your propensity to the munchies. Can you fire someone who smokes pot (legally, of course)? Read Florida Legalizes Medical “Marijuana” But You Can Still Be Fired For It, from Donna Ballman’s Screw You Guy’s, I’m Going Home, to find out.


Bullet with Butterfly Wings — Smashing Pumpkins (1995)


Vampires and rats in cages? Believe it, or not. Here’s Employment law BELIEVE IT OR NOT! from Robin Shea’s Employment & Labor Insider.


Interstate Love Song — Stone Temple Pilots (1994)


According to Scott Weiland, this song is about honesty, lack of honesty, and his then-newfound love for heroin. Pretty bleak stuff, if you ask me. Do you know what else is bleak? Not correctly paying your employees, as explained in Holiday Pay for Employees with Alternative Work Schedules from Wage & Hour Insights.


Sabotage — Beastie Boys (1994)


For my money, this is the greatest music video of all time. This, along with Weezer’s Happy Days-inspired Buddy Holly, made a name for Spike Jonze, who went on to direct the Oscar-nominated films Being John Malkovich and Her. For the past six years, federal agencies have been trying to sabotage employers, according to Is the EEOC the new NLRB?, from John Holmquist’s Michigan Employment Law Connection.


Green Day — Basket Case (1994)


“Do you have the time / To listen to me whine?” Trying to figure out the hows and whens of inflexible leave of absence policies will turn you into a basked case. Just ask Dan Schwartz, who, on his Connecticut Employment Law Blog, posted Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes.


Give It Away — Red Hot Chili Peppers (1991)


This song is all about the philosophy of selflessness and altruism. Employers seldom adopt this philosophy when settling lawsuits. When settling lawsuits with employees age 40 or over, don’t forget about the OWBPA, as explained in Settlement and the Older Workers Benefit Protection Act, from Robert Fitzpatrick on Employment Law.

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Eric Meyer, the author of The Employer Handbook blog and currator of this fine Carnival, will host next month’s Employment Law Blog Carnival, on August 20. If you want to participate, email him a link to your employment-law-related blog post by August 15.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with edition #329.

EEOC issues Enforcement Guidance, Q&A, and Fact Sheet on Pregnancy Discrimination

If had any doubt that pregnancy discrimination is a hot-button issue at the EEOC, look no further than yesterday’s publication of three documents by the Agency on the issue:

• Enforcement Guidance: Pregnancy Discrimination and Related Issues
• Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
• Fact Sheet for Small Businesses: Pregnancy Discrimination

Among the topics addressed by the EEOC are:

1. The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy, a woman’s potential to become pregnant, fertility/infertility, and the intent to become pregnant.
2. Lactation as a covered pregnancy-related medical condition, which means that denying lactation time or space to new moms violates Title VII.
3. The circumstances under which employers may have to provide light duty for pregnant workers, and the requirement that an employer provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.
4. Issues related to leave for pregnancy and for medical conditions related to pregnancy, and the requirement that pregnant employees who are able to perform the essential functions of their jobs must be permitted to do so.
5. The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave.
6. The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
7. When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary. These pregnancy-related impairments, which the ADA covers as disabilities, include gestational diabetes, pregnancy-related sciatica, and preeclampsia. Potential reasonable accommodations include redistributing marginal or nonessential functions, modifying workplace policies or work schedules, telework where feasible, leave in excess of a medical leave policy, purchasing or modifying equipment, or temporarily reassigning an employee to a light duty position.

All three documents are required reading for any employers with female employees of child-bearing age. Moreover, while the EEOC’s Enforcement Guidance is not a statement of law, but, instead, a federal agency’s non-binding interpretation of what the law means, employers should take these interpretations seriously. Courts do look to the EEOC for help in interpreting Title VII, and employer who ignore this Guidance or act contrary to it are taking a huge risk in doing so.

Should you block social media at work?

One of my summer television addictions is NY Med, which follows surgeons around some of the New York metro area’s busiest hospitals. One this summer’s episodes focused on a man who had been hit by a subway train. An ER nurse Instagrammed a photo of the empty trauma room, along with the caption “#Man vs 6 train”. Later that day, the hospital fired her. According to ABC News, she was fired for being “insensitive,” not for posting any protected patient information or for violating any hospital policy.

I thought of this story as, over the weekend, I read an article on The Next Web entitled, Productivity vs. Distraction: Should you block social media at work? The answer to this question is a resounding “no.” Here’s why, in my opinion.

Like it or not, we live in a social world. People are living their lives on Facebook, Twitter, and Instagram. Take Facebook. It has 1.28 billion users, 59% of whom visit the site every day. 68% of all time spent on Facebook is done via its mobile app. Twitter is even higher, at 86%. These stats show that it you are trying to ban employee social media access at work, you are fighting a battle you cannot win. If an employee wants to check Facebook at work, or post a Tweet, or show off that fancy filtered sunset on Instagram, they will simply take their iPhone out of their pocket and post away.

So what is a company to do? Embrace the fact that employees will access their social media accounts from work. So, how do you balance on-the-job productivity against the social media’s distractions? TNW offers four great tips:

1. Draft a policy. I was troubled when I read that the nurse on NY Med had not violated any policy by posting on Instagram a photo of the inside of a trauma room. Given the vast number of your employees who are on social media, it is irresponsible not to have a social media policy. Just make sure it will pass muster with the draconian agenda being put forth by the NLRB.
2. Invest in the idea that employees represent your company. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal: the inherent intertwining of our personal and professional personas online. You can read more on my thoughts on this important issue here. Suffice it to say, however, that employees need to realize that anything they say online can impact their professional persona, and that it is our job as employers to help educate our employees about living in a “profersonal” world.
3. Training, training, training. Teaching employees about the meaning of “profersonalism” is just one part of the training puzzle. The best way to limit employee social media problems is to invest some time and money into training your employees about these issues. Having a policy is step one in this process, but training your employees on what that policy means is steps two through ten (at least).
4. Allow for brain breaks. We ask an awful lot of our employees. It’s rare to find a nine-to-five job these days. If your employees are working 45, 50, or 50-plus hours per week, what’s the harm if they spend a few minutes during the day checking Facebook. Workplace social media is not a technology problem, it’s a performance problem. Thus, technological solutions will not work. You need to treat social media abuse as a performance problem. If an employee is spending so much time on Facebook that he or she cannot complete the job, then provide counseling or discipline. If an employee posts something that harms the business, counsel, discipline, or fire. Treating the problem by shutting off the technology will not cure the problem; it will just take if off your network. 

Facebook might not be Facebook in five years. But, rest assured, something else will take its place. Social media is not going anywhere. Employers need to embrace this reality, or face a workforce they do not understand and cannot hope to control.

WIRTW #328 (the “fore!” edition)

It was a lovely day for golf yesterday at the annual KJK golf outing. If only my swing agreed.

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On Wednesday, I’m hosting the July edition of the Employment Law Blog Carnival. Please send my way any post you’d like featured.

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

Discrimination

• Podcast: “Discrimination Law in an Overlawyered America” — from Walter Olson’s Overlawyered
• Pay Careful Attention to Pregnancy Accommodation Requests as EEOC Plans New Enforcement Guidance — from Employment Matters Blog
• Brave Men Take Paternity Leave — from Harvard Business Review
• SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case — from Phil Miles’s Lawffice Space
• Walmart on Hook for $180K in EEOC Suit Alleging ADA Violation From Firing of Diabetic Employee — from Joe’s HR and Benefits Blog
• Your Religion Shouldn’t Be on Your Résumé (Unless You’re Jewish) — from Evil HR Lady, Suzanne Lucas
• Are 9 Sexual Harassment Cases And A Naked Dancing Video Cause For Firing? Maybe Not — from Donna Ballman’s Screw You Guys, I’m Going Home
• Age Discrimination in the Tech Industry — from Workplace Prof Blog

Social Media & Workplace Technology

• Six degrees of Kevin Bacon, err, social media and the workplace — from Eric Meyer’s The Employer Handbook Blog
• The Cost of Continuously Checking Email — from Harvard Business Review
• Can Employers Discipline Employees Who Post False Claims Of Harassment On Facebook? Yes, But Beware Of The Pitfalls — from Employment Law Lookout
• Court holds employers not liable for employee defamatory online speech made using employer computers. Plaintiffs can’t take the money and run! — from Employer Law Report
• Employees’ social media use: a refresher — from Technology for HR

HR & Employee Relations

• Adventures in employment agreements — from Walter Olson’s Overlawyered
• Employers Should Dot Their I’s and Cross Their T’s When Using Consumer Reporting Information — from Texas Employment Law Update
• Naked and Afraid HR — from The Tim Sackett Project
• Can neuroscience give us an accurate lie detector for employment disputes? — from Minding the Workplace
• The Moral of Workplace Morale — from Next Blog
• Do’s and Don’ts of Accepting Offers of Employment - NBA DRAFT VERSION — from The HR Capitalist, Kris Dunn

Wage & Hour

• DOL audits: What to expect when you’re expecting one — from Business Management Daily
• Wage and Hour Lawsuits More Prevalent in 2014 — from Overtime Lawyer Blog
• Why “Working Time” FLSA Lawsuit Settlement Irritates Me — from Wage & Hour - Development & Highlights
• When is a Commute Not a Commute? In a Company Car (Well, Maybe)! — from Wage & Hour Insights
• Six reasons why Hobby Lobby does not spell “doom” for women — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Why calling the boss a “f**king a**hole” may be protected activity — from Mike Haberman’s Omega HR Solutions
• You Be The “Judge”: Is Swearing at Work Protected by Federal Law? — from Dan Schwartz’s Connecticut Employment Law Blog
• Latest No-Solicitation Policy to be Struck Down by the NLRB — from Matt Austin Labor Law
• Staying One Step Ahead of Norma Rae — Tips for Staying Union Free — from Labor & Employment Law Perspectives
• Employer’s Social Media Policy Found Not To Violate Employees’ Rights — from Michigan Employment Law Advisor
• GC To Board: Adopt New Joint Employer Standard — from Labor Relations Today
• How the NLRB Is Like Charlie Brown — from Minnesota Employer

Time after time: temporal proximity and retaliation

Marla Montell reported an allegation of sexual harassment against her supervisor, Austin Day, to human resources  at Diversified Clinical Services. The HR rep contacted Day almost immediately. The next day, Day called Montell and told her that she should resign or would be fired. Chose the former, and then sued the company for retaliation. 

The only evidence Montell presented in support of her retaliation claim was the timing of her termination in relation to her internal harassment complaint. For its part, the company claimed that Day was motivated by Montell’s performance history, which included a PIP, a documented oral counseling and development plan, a Final Warning, and an Amended Final Warning. The Amended Final Warning, issued on May 3, 2011, provided Montell until June 2 to improve her performance or be fired. She resigned in lieu of termination on May 20.

In Montell v. Diversified Clinical Servs. (6/27/14), the 6th Circuit was faced with the question of whether the mere timing of Montell’s resignation was sufficient to support her retaliation claim under Title VII. Following its own precedent, and that of the Supreme Court, the 6th Circuit concluded that Montell’s retaliation claim should go to a jury to determine whether there existed a nexus between her protected activity and her forced resignation:

[E]mployees who are about to be fired should not abuse the civil-rights protections by filing frivolous harassment complaints. However, it cannot be open season for supervisors to sexually harass poorly performing employees. Such employees must still be provided with their legal protections.… [W]e must analyze the evidence of how and when the adverse employment action occurred to determine whether it squares with the action previously contemplated. If it does, then temporal proximity is not evidence of causality, but if the adverse employment action is unlike the action previously contemplated or does not occur on the schedule previously laid out, then the temporal proximity of the adverse action to the protected conduct is certainly evidence of causation.

In other words, was the decision to terminate Montell a mere continuation of her performance history, or a reaction to her protected activity? In this case, because Montell faced termination before the June 2 date contemplated by the Amended Final Warning, the court concluded that the adverse action sufficiently deviated from the performance history to create a jury issue over the timing of the termination.

If you are going to terminate an employee on the heels of protected activity, you best have all of your ducks in a row. If Montell’s performance objectively had not improved by June 2, I suspect this case would have come out differently. Because the employer jumped the gun on the termination, it called into question the employer’s motivation, especially within 24 hours of a harassment complaint.

Employees who complain about harassment or discrimination aren’t bulletproof. But, you better be damn sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on a timeline such as that in Montell.

Hear me on The CYA Report discussing Hobby Lobby

Today we’re going to try something a little different. Usually, you get to read my thoughts on the employment law issues of the day. Today, you get to hear my voice, waxing philosophical on the Supreme Court’s Hobby Lobby decision.

Last week, Kris Dunn (old friend, and proprietor of, among other things, The HR Capitalist) asked if I’d appear on his podcast, The CYA Report, to discuss the case.

Kris and I discussed: What does Hobby Lobby mean? Are corporations people? And, what employment law areas can we expect its holding to challenge?

Take a listen here.

What does the ADA say about employee medical information and social media?

The ADA protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court—in Shoun v. Best Formed Plastics—began sketching an answer. 

George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” 

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.

All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.

Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information—workers’ compensation claims, FMLA claims, reasonable accommodation requests, and other medical information related to the performance of the job—is off-limits for discussion. 

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, training—on this issue could save you from a disability discrimination lawsuit down the road.

EEOC transforms a $1.39 bag of chips into a $180,000 settlement

Nearly three years ago, I reported on a disability-discrimination lawsuit filed by the EEOC against Walgreens. The agency had filed suit of behalf of a diabetic employee who, without permission, took a bag of chips off the shelf to stabilize her blood sugar level during a hypoglycemic attack. Walgreens considered it shoplifting and fired the employee. The EEOC considered the termination a failure to reasonably accommodate the employee’s disability and filed suit.

Last week, Walgreens settled the lawsuit, agreeing to pay the ex-employee $180,000, in addition to agreeing to implement revised policies and training.

Whether you think this is a fair settlement, or that Walgreens overpaid, depends on whether you view the termination an unfair discrimination against an employee trying to stop a medical episode, or a reasonable enforcement of a retailer’s anti-shoplifting policy. In denying the employer’s motion for summary judgment earlier this year, a federal judge strongly hinted it was the former:

Here, the misconduct alleged by Walgreens that formed the basis of her termination was the taking of the chips without paying for them first, an act Hernandez claims was caused by her disability. Walgreens has failed to allege any misconduct that is unrelated to her disability.

In announcing the settlement, the EEOC also recognized the dichotomy between discrimination and theft-prevention:

People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.

As for me, I don’t believe either interest trumps in this case. I firmly believe that employers like retailers (or casinos) must do everything they can to prevent and deter employee theft. These measures include terminations that, under other circumstances, might seem overly harsh. Yet, in this case, the company knew about this long-term employee’s medical history, and refused to let the employee pay for the chips after her recovery. This does not appear to be the case of an employee nefariously grazing on unpaid goods. Instead, it appears to be a case of employee making a snap judgment in response to a medical condition, and trying to make good on it after the fact. Given these facts, this case seems like an odd one for this employer to litigate for three years. It could have cut its losses, settled early, and saved itself three years of legal fees. Yet, I also see the import of the employer’s “zero tolerance” stance.

This case illustrates how difficult reasonable accommodate cases are. When the accommodation is so trivial (a $1.39 bag of chips, for example), employers should strongly consider making the accommodation for an employee’s medical situation regardless of the scenario. It is difficult to justify a claim of hardship based on a economically trivial accommodation. Even when the interest the employer is trying to protect is as strong as deterring theft, the cost of defending that interest may to be too high, especially in light of the uncertainty related to the potential outcome of very fact-specific litigation.