WIRTW #365 (the “on the road again” edition)

It’s been a crazy week. I gave four different seminar presentations over an eight-day span:

• Last Wednesday I presented a two-hour FMLA/ADA update to the Southwest Safety Council.
• Monday evening I gave the keynote address at the Greater Cleveland Pest Control Association annual award banquet, scaring the pants off everyone about OSHA.
• Tuesday I presented a webinar on criminal background checks and Title VII
• Wednesday I opened the Northern Ohio Labor & Employment Conference with a discussion of emerging technology and employment law (i.e., BYOD, cyber-security, and social media).

Thanks to all who invited me to speak to your organizations. It is always my pleasure.

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

Discrimination

• 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo — via Dan Schwartz’s Connecticut Employment Law Blog
• For ADA and accommodating employee disabilities, think “Burger King” — via Eric Meyer’s The Employer Handbook Blog
• Why women are afraid to tell employers they’re pregnant — via Wonkblog
• Fired for What!? - The Great Popeye’s Fried Chicken Caper — via Phil Miles’s Lawffice Space
• Is Political Affiliation the New Black When it Comes to Discrimination? — via California Labor and Employment Defense Blog
• Is telecommuting a reasonable accommodation, or is it not? — via Robin Shea’s Employment & Labor Insider
• Telesh on EPLI’s Influence — via Workplace Prof Blog

Social Media & Workplace Technology

• If you’re horrible on the internet, Clear app could save your job — via The Verge
• Can an Employer Make Me Change My LinkedIn Photo? — via HR Examiner with John Sumser
• LinkedIn dodges a legal bullet — via Walter Olson’s Overlawyered
• The Dos and Don’ts of Work Email, from Emojis to Typos — via Harvard Business Review

HR & Employee Relations

• I walked in on employees having sex — and I think there’s a sex club in my office — via Ask a Manager
• Yelling at Co-Workers and Employees: Is It Ok? — via ERC’s HR insights Blog
• What Your Company’ Policy on Employee References? — via In House
• Is Thor an illegal immigrant? — via Law and the Multiverse
• How Commute Issues Can Dramatically Impact Employee Retention — via TLNT
• How to Build a Better Marijuana Policy — via Evil HR Lady, Suzanne Lucas
• Work Schedules are Damaging Lawyer Health — via Inhouse Blog
• Recovering From a Fraud Loss — via FRAUDfiles

Wage & Hour

• Do Lower Gasoline Prices Signal A New Wave Of FLSA Actions In The Energy Industry? — via Wage & Hour - Development & Highlights
• Docking Pay From Salaried, Exempt Employees Is Illegal…And Very Common — via Texas Employment Law Blog
• Beware Strangers Bearing Gifts! DOL Promotes “Free” National Safety Council “Cell Phone Policy Kit” — via Employment Law Lookout
• “Half-Time” Overtime: The Fair Labor Standards Act’s Fluctuating Workweek Method — via Wage & Hour Insights
• Is Your Employee Abusing Her FMLA Leave? — via The Emplawyerologist

Labor Relations

• Are employer codes of conduct meaningless in today’s NLRB climate? — via HR Hero Line
• Rival Unions Vie For Position At VW — via Labor Relations Today
• NLRB vs. Right-to-Work — via Ross Runkel Report
• Union Isn’t Liable For Members’ Posts To Private Facebook Group–Weigand v. NLRB — via Technology & Marketing Law Blog
• NLRB Wants Postal Service to Bargain Over the Impact of Data Breach — via Employer Advocate

Until next week…

“Stop harassing me!” = protected conduct to support retaliation claim, says 6th Circuit

What happens when the alleged perpetrator of sexual or other unlawful harassment is also the person to whom the victim lodges a complaint of harassment? If the alleged perpetrator later fires (or causes the firing of) the victim, has the victim engaged in protected conduct (opposition of the harassment) to support a retaliation claim? According to the 6th Circuit, in EEOC v. New Breed Logistics (4/22/15) [pdf], the answer is yes.

The jury concluded that Calhoun, a supervisor, sexually harassed three women (Hines, Pearson, and Pete), retaliated against them after they objected, and further retaliated against a male employee (Partee) “who verbally opposed Calhoun’s sexual harassment and supported the women’s complaints.” The evidence at trial was that Calhoun laughed and responded “that he wasn’t going to get in trouble, that he ran th[e] area, [and that] anybody who went to [HR] on him would be fired.” Calhoun then fired each of the four employees, claiming performance and attendance issues. 

As the threshold issue, the 6th Circuit had to determine whether complaints or objections made to the accused harasser constitute protected activity to support a retaliation claim. The 6th Circuit had little difficulty concluding that these four employees had engaged in protected activity:

We conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed…. Here, at the very least, all four complainants requested that Calhoun stop his sexually harassing behavior before their terminations. Consistent with our holding today, these complaints constitute protected activity.

While I agree that this holding makes sense, consider the awful position in which it could place employers who are lax with their termination decisions. An employer is vicariously liable for the actions of a supervisor or manager (e.g., harassment or retaliation). Thus, an employer will be liable for the rogue actions of a harasser trying to protect his or her turf from an objecting employee.

The solution? More diligence and scrutiny of termination decisions by HR departments and senior management. One cannot merely rubber stamp a manager’s or supervisor’s decision to terminate. If that individual harbors a discriminatory animus, we know that the cat’s paw will nab you. Now, we also know, per New Breed Logistics, that retaliation liability has the same potential issues when an alleged harasser is involved.

Bottom line: Do not rubber stamp termination decisions. Fact-check and confirm before allowing the company to pull the trigger.

A shy employee, a drug test, and the ADA meet in a bar…

Chris Lucas suffers from paruresis (aka, shy bladder syndrome). He claimed that he could not urinate in public bathrooms, and often would hold his bladder throughout his entire work day to avoid having to use the restroom at work. He also admitted, however, that if the urge become too overwhelming, his desire not to wet himself would overcome his fear of public urination.

Lucas’s employer, Gregg Appliances, maintained a drug-free workplace policy which required periodic testing of employees. Lucas’s promotion to a general manager position was contingent upon him passing just such a drug test. When Lucas (and his shy bladder) could not complete the drug test, the testing clinic reported to the employer: “PER COLLECTOR: DONOR LEFT COLLECTION SITE BEFORE COMPLETION OF DRUG TEST.” When confronted by management, Lucas never mentioned his difficulty urinating or his paruresis. Indeed, he did not even visit a physician for his condition until the day after Gregg Appliances fired him for failing to take the required drug screen.

In Lucas v. Gregg Appliances (S.D. Ohio 4/15/15), an Ohio federal court concluded that Lucas could not proceed with his ADA claim. The court dismissed Lucas’s claim for two reasons:

1. The employer had no knowledge of his disability. Lucas never told anyone at the employer before taking his drug test, or after he failed to complete the test. He only relayed his condition to his boss after he was fired. Just because an employer knows that an employee has a health problem (i.e., the inability to pee after drinking several glasses of water over the span of two hours) does not mean that the employer also knows that the employee suffers from an ADA-protected disability. Where the disability is not obvious, the burden is on the employee to make the employer aware.

2. Just as the burden is on the employee to advise of the existence of a disability, the burden also squarely rests on the employee to request a reasonable accommodation. Here, Lucas did not request any accommodation (a blood or hair test) until after his termination. If an employee fails to request a reasonable accommodation during his employment, he cannot later complain that the employer failed to provide an accommodation or otherwise participate in the interactive process.

The ADA does not require an employer to guess and play detective. Instead, it anticipates a collaborative conversation between employer and employee about disabilities and accommodations. The party that fails to take part in this conversation will usually be the one that ends up the loser in any ADA lawsuit.

Is a LinkedIn search subject to the Fair Credit Reporting Act

I’ve written a lot in the past few years about the pros and cons of companies using social media to conduct background checks on applicants and employees (e.g., here and here). One issue I’ve never considered, however, is whether the social media site is a “consumer reporting agency” subject to the Fair Credit Reporting Act, or the information compiled from such searches qualifies as a Consumer Report. The issue is significant, because if the social sites are CRAs, or their information are CRs, then employers who use these sites to conduct background searches are subject to the FCRA’s myriad pre- and post-screening notice, consent, and disclosure requirements.

Recently, a California federal court examined this very issue in Sweet v. LinkedIn Corporation [pdf], and concluded that LinkedIn’s Reference Search function does not render it subject to the FCRA.

Unlike other social sites, LinkedIn maintains a specific tool that helps employers’ reference checks—a premium tool called “Reference Search,” which creates “a list of people who have worked at the same company during the same time period as the member you’d like to learn more about.” More simply, Reference Search generates a list of potential employment references.

In Sweet, a group of unsuccessful job applicants argued that LinkedIn failed to comply with the FCRA in how it operates and maintains “Reference Search.” The court disagreed, concluding that LinkedIn’s Reference Search is not a Consumer Report under the FCRA.

LinkedIn’s publications of employment histories of the consumers who are the subjects of the Reference Searches are not consumer reports because the information contained in these histories came solely from LinkedIn’s transactions or experiences with these same consumers. The FCPA excludes from the definition of consumer report any “report containing information solely as to transactions or experiences between the consumer and the person making the report.”

In other words, because LinkedIn creates its databases solely from information submitted by its account holders, it falls outside the FCRA’s coverage.

While employers still have EEO concerns with the use of social networks for background checks, this case should give employers some relief, as it appears that the FCRA is one statute they needn’t worry about when using social media to vet candidates or for other employment purposes.

EEOC issues balanced interpretation of legality of employer wellness plans

Several months ago, the EEOC announced its intent to issue regulations interpreting whether employer wellness plans are legal or illegal medical exams under the ADA. Thankfully, last Thursday the EEOC published its proposed regulations, and its good news for employers who use these programs to keep down the cost of their group health insurance.

So, what does this all mean for employers? Let’s take a look, via the helpful Q&A the EEOC published alongside its proposed regs:

Q: What is a Wellness Program?

A: The term “wellness program” refers to programs and activities typically offered through employer-provided health plans as a means to help employees improve health and reduce health care costs. Some wellness programs ask employees to engage in healthier behavior (for example, by becoming more active, not smoking, or eating better), while other programs obtain medical information from employees by asking them to complete a health risk assessment (HRA) or undergo biometric screening for risk factors (such as high blood pressure or cholesterol).

Q: How does the ADA affect workplace wellness programs?

A: The ADA generally restricts employers from obtaining medical information from employees but allows medical examinations of employees and inquiries about their health if they are part of a “voluntary” employee health program…. However, … the Affordable Care Act allows wellness programs to offer incentives—in the form of rewards to participating employees who achieve certain health outcomes or penalties if participating employees fail to achieve health outcomes.

The proposed rule clarifies that the ADA allows employers to offer incentives up to 30 percent of the cost of employee-only coverage to employees who participate in a wellness program and/or for achieving health outcomes.

Q: When is a wellness program considered “an employee health program” within the meaning of the ADA?

A: A wellness program is considered an employee health program when it is reasonably designed to promote health or prevent disease. The program must not be overly burdensome, a subterfuge for violating the ADA or other laws prohibiting employment discrimination, or highly suspect in the method chosen to promote health or prevent disease. For example:

• Asking employees to complete a HRA or have a biometric screening for the purpose of alerting them to health risks (such as having high cholesterol or elevated blood pressure) is reasonably designed to promote health or prevent disease.
• Collecting and using aggregate information from employee HRAs to design and offer programs aimed at specific conditions prevalent in the workplace (such as diabetes or hypertension) also would meet this standard.

However, asking employees to provide medical information on a HRA without providing any feedback about risk factors or without using aggregate information to design programs or treat any specific conditions would not be reasonably designed to promote health.

Q: When is a health program considered “voluntary”?

A: The NPRM lists several requirements that must be met in order for participation in employee health programs that include disability-related inquiries or medical examinations to be voluntary. Specifically, an employer:

• may not require employees to participate;
• may not deny access to health coverage or generally limit coverage under its health plans for non-participation; and
• may not take any other adverse action or retaliate against, interfere with, coerce, intimidate, or threaten employees (such as by threatening to discipline an employee who does not participate or who fails to achieve certain health outcomes).

Additionally, if a health program is considered a wellness program that is part of a group health plan, an employer must provide a notice clearly explaining what medical information will be obtained, how it will be used, who will receive it, and the restrictions on disclosure.

Here’s the $64,000 question:

Q: How much of an incentive may employers offer to encourage employees to participate in a wellness program or achieve certain health outcomes?

A: 30 percent of the total cost of employee-only coverage.

I am thrilled that the EEOC did not go nuclear and blow up wellness programs as discriminatory under the ADA. Given the surging cost of health insurance and the massive burden those costs place on employers and employees, it is relief that the EEOC is leaving these beneficial programs intact. Moreover, the EEOC’s 30% hard cap is certainly more palatable than a fuzzy “reasonableness” standard that begs for litigation and uncertainty. While both employers and employees can quibble over whether 30% is too low, too high, or just right, I’d rather have this Goldilocks debate over a number we can see than a different debate over a fuzzy standard that we cannot.

A full copy of the proposed regulations is available here [pdf].

WIRTW #364 (the “almost famous” edition)

“Daddy, this guy wants to talk to me, but he needs your permission first.” My daughter came running over to me last Saturday at the Rock Hall with those words. She was waiting backstage for her Joan Jett band to go on. Typically, that statement would have given me pause, but given the number of news cameras that were around, I had an idea “this guy” was legit. Here’s the result:

This wasn’t Norah’s only press of the day. Here’s a clip from another local news channel, this one of a “future superstar” (their words, not mine) doing her thing on stage:

The hits keep on coming for my little girl, and I’ll keep sharing them.

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

Discrimination

• Do You Hear What I Hear? Accent Discrimination in the Workplace. — via Fitzpatrick on Employment Law
• Can you sack an employee for having “friends with benefits”? — via Employment Law Worldview
• Equal Protection, LGBT and Religious Freedom — via Cleveland Employment Law Blog
• Sniffing out an ADA case: Aromatherapy at work sparks questions — via HR Hero Line
• EEOC: U.S. Army’s bathroom restriction on transgender employee was sex discrimination — via Eric Meyer’s The Employer Handbook Blog
• Telecommuting as a reasonable accommodation: EEOC v. Ford Motor Company en banc Decision — via Understanding the Americans with Disabilities Act (ADA)
• Special Post: 6th Circuit Reverses Its Decision on Telecommuting and the ADA–But Does it Change Anything? — via The Emplawyerologist
• More Road Rules: Telecommuting as a “Reasonable Accommodation” Under ADA Gets an Update — via Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• Litigators Who Don’t Know Enough About E-Discovery Should Be Afraid, Very Afraid — via Above the Law
• The “Where” of Data Security — via Privacy and Data Security Insight
• The Use of Social Media During the Hiring Process: Do the Benefits Outweigh the Risks? — via New York Labor and Employment Law Report

HR & Employee Relations

• Bring Your Child to Work Day: Swap Your Briefcase for a Backpack — via ERC Insights Blog
• When Employees Steal: Five Reasons Your Business Could Be Vulnerable to Fraud — via FRAUDfiles
• Work-Life Friendly Employers Are a Click Away — via Families and Work Institute Blog
• Paternity Leave Workplace Basics — via Blogging4Jobs

Wage & Hour

• DOL to Enforce Same-Sex Spouses FMLA Regulation In All But Four States — via The Labor and Employment Law Blog
• DOL Will Not Enforce Final FMLA Regulation Regarding Same-Sex Spouses in Four States — via Jeff Nowak’s FMLA Insights
• What Can an Employer Do If an Exempt Employee Fails to Work 40 Hours? — via Evil HR Lady, Suzanne Lucas
• Pennsylvania Federal Court: Cosmetology Student Not An “Employee” Entitled To Minimum Wage — via Wage and Hour Law Update
• 9th Circuit Splits with 4th, 5th Circuits, Finds Auto Dealer Service Advisors Not Exempt Under FLSA — via Doug Hass’s Wage & Hour Insights
• Is Your Social Media Influencer or Blogger an Employee or an Independent Contractor? What Companies Need To Know Before They Engage Bloggers and Other Independent Contractors — via Employment Law Watch

Labor Relations

• Why We’ve Decided to Organize — via Gawker
• Quickie elections, ASAP! — via Robin Shea’s Employment & Labor Insider
• NLRB Representation Rules Now in Effect — via Workplace Prof Blog

Your employees are your biggest security risk

It seems that every week we read a story about another company that has been hacked and had its information and data compromised. Most companies believe that their greatest security risk comes from cyber terrorists overseas—nameless and faceless hackers sitting in some high tech hovel in some foreign country.

Your greatest security risk, however, comes from within—your own employees.

Case in point? This story, via Fusion:

In January, authorities arrested Eddie Raymond Tipton, the Director of Information Security for the Multi-State Lottery Association, a non-profit organization that runs multi-state games for 33 different state lotteries, on charges of fraud.… Tipton is being accused not just of claiming a winning ticket he wasn’t allowed to have, but hacking into the lottery’s random number-generator software to engineer a win for himself.… 

According to the court documents, the Multi-State Lottery Association’s random-number generator computers are disconnected from the Internet and kept in a locked, glass-walled room that is under 24-hour video surveillance. Prosecutors allege that Tipton entered the room on November 20, 2010, changed the camera’s settings to have it record less frequently, and inserted a USB drive containing malware that would manipulate the results of the upcoming lottery drawing.

I'm not saying that the threat from your employees comes from the type of malicious mischief of which Tipton is accused. With data security, sins of omission can be as deadly as sins of commission. Do you have a Bring Your Own Device Policy? Do you have employees sign confidentiality agreements? Do you train your employees on the evils of unsecured WiFi and what to do when a mobile device goes missing? If not, you are being cavalier with your data security, which places your entire business at risk of being the next big data breach story.

Sex stereotyping as transgender discrimination

Last week the EEOC settled, for $150,000, one of its first cases alleging sex discrimination against a transgender employee. This week, another transgender employee filed a remarkably similar lawsuit in federal court in Louisiana. The key difference between the two cases? The Louisiana employer had a formal policy against employees presenting at work as a gender other than their birth gender:

Title VII does not (yet) specifically identify “sexual orientation” as a protected class. But, sexual stereotyping has been illegal for decades. Keep this in mind, and keep an open mind, if your employee shows up as John on Friday and Joan the following Monday.

EEOC seeks a quarter-billion dollars from NYC

Earlier this month, the EEOC’s New York District Office issued a Determination [pdf] finding probable cause to believe that New York City violated Title VII and the Equal Pay Act through a “pattern of wage suppression and subjective promotion based on … sex, race, and national origin.” The conciliation agreement the agency proposed seeks compensation in excess of more than $246 million. That eye-popping number should catch the attention of every employer.

While settlement proposals are merely numbers on a piece of paper, and no one expects NYC to roll over and play dead, this story holds an important lesson for employers. The EEOC, which is an agency of limited financial resources, is going to go after that which will provide the most bang for its buck. If you are a large employer, you have a large target on your back, and the EEOC is taking aim. Yet, even small employers should show concern, because while the size of the target is might be proportionate to the size of the employer, even a small hit can prove devastating for a small employer. If you are not currently under investigation (and most of your aren’t), consider yourself as living on borrowed time. Take advantage of it. Use this time to audit all of your HR and employer practices (hiring, firing, pay, policies, etc.) to ensure compliance with all employment laws, including Title VII. It might sound trite, but knowledge really is power. Better to find out that you are out of compliance before an agency knocks on your door than after.

Some thoughts on accommodations and flexible workplaces

I’ve been thinking a lot over the past three days about the flexibility that employers afford their employees. I am part of a family with two working professional parents (one of whom travels a great deal), and two young children. If I did not have flexibility in where I perform my job, my life would become exponentially more difficult in light of my wife’ travel schedule. The reality is that technology (specifically iPhones, emails, laptops, and iPads) makes work easier. I no longer need to be tethered to my office to be productive. Yes, I enjoy coming to work. I like the camaraderie of my co-workers. I like seeing and talking to other people. I’m a social person and I like being social. But, I can write a brief, or counsel a client, from anywhere. I don’t need my office to produce. 

Last Friday, the 6th Circuit decided EEOC v. Ford Motor Co., which, according to the Court, applied “common sense” to decide that “regular on-site attendance is required for interactive jobs, and that “regular, in-person attendance is an essential function … of most jobs….” I could not disagree more. When the 6th Circuit originally decided this case one year ago, it relied on technology to determine that employers should at least consider whether telecommuting is a reasonable accommodation for a particular job.

As technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties.

My main problem of the re-hearing panel’s decision is that the “common sense” it is applying is rooted in 1965, not 2015. To paraphrase John Oliver from last night, just as it is no longer acceptable to slap a female co-worker on the backside while calling her “toots,” it is no longer acceptable to assume that work must be performed at work. While I haven’t read the 1,400 page record of the Ford case to determine whether physical attendance at work was essential for this plaintiff’s job, my main critique of this decision is that it swings to needle too far to the side of inflexibility. It sets inflexibility as the rule, and telecommuting as the exception. I would flip the rule.

Telecommuting is an important benefit that promotes work/life balance for employees. It is great benefit that employers should be using to attract and retain employees for whom this benefit matters. With the state of technology in 2015, there is little reason that employer should not be doing so.

BREAKING: 6th Circuit says telecommuting is not a reasonable accommodation under the ADA

Almost one year ago, in EEOC v. Ford Motor Co., the 6th Circuit recognized telecommuting as a potential reasonable accommodation under the ADA. This morning, the same court issued its rehearing decision [pdf] in the same case, and the news is not good for those who are fans of workplace flexibility (me included).

Here is what the court said, in a nutshell:

A sometimes-forgotten guide likewise supports the general rule: common sense. Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job…. Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

I’ll have my full analysis on Monday morning. Here’s a sneak peak—I think this decision stinks.

WIRTW #363 (the “iron throne” edition)

I was a Sesame Street kid. Muppets taught me to read, count, and have manners.

I’m a tad late, however, to Game of Thrones. I’ve been frantically binge watching, trying to catch up before Season 5 begins (or, more likely, ends – I’m nearly through Season 3 as I type).

What do you get when you marry these two shows? Game of Chairs, of course.

How many Game of Thrones references can you catch?

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

Discrimination

• EEOC on Transgender Harassment, Discrimination, and Restrooms — via Phil Miles’s Lawffice Space
• A white employee tossed banana peels at work, and HE claims discrimination. He might WIN too. — via Eric Meyer’s The Employer Handbook Blog
• Are fraternities subject to title III of the ADA? — via Understanding the Americans with Disabilities Act 
• Five Lessons For Employers From the Ellen Pao Verdict — via California Employment Law
• SEC Clamps Down On Employee Agreements Thought to “Chill” Whistleblower Activity — via Employment Law Worldview
• After Ellen Pao’s Loss, More Women In Tech Bring Gender Discrimination Lawsuits — via Workplace Fairness

Social Media & Workplace Technology

• Cyber Security Competition Kicks Off — via The ChamberPost
• Cyber Insurance: What do Cyber Insurance Policies Cover and Cost? — via Privacy and Data Security Insight
• We Continue to Miss the Texting Opportunity In HR — via The HR Capitalist, Kris Dunn
• Do Employers Own LinkedIn Groups Created By Employees?–CDM v. Sims — via Technology & Marketing Law Blog
• Social Media and Time Management: Boogeyman or Symptom? — via Next Blog
• Why Do We Publicly Shame People Out of Their Jobs? — via Harvard Business Review

HR & Employee Relations

• Recognizing the Red Flags of Fraud — via FRAUDfiles
• The Unique World of “Leave of Absence” Policies — via ERC Insights Blog
• “Just Give Me a Reason” Not Enough to Satisfy Just Cause Provision — via Dan Schwartz’s Connecticut Employment Law Blog
• Employment Lessons from Germanwings: Why Mental Health Is So Important — via Employment Intelligence
• L. Ron Hubbard's Best Career Lessons — via Lifehacker
• Life in an Inflexible Office — via 1 Million for Work Flexibility
• Training Video on Millennials in the Workplace. — via What About Clients?
• Check Out The FTC’s Newly Revised Background Checks Brochure — via FYI Screening

Wage & Hour

• Hey Employer don’t look to the USDOL for help — via Mike Haberman’s Omega HR Solutions
• An Argument for Unfair Pay — via Compensation Cafe
• When Paying Accrued “Vacation” at Termination, Labels Don't Matter [Wage & Hour FAQs] — via Wage & Hour Insights
• Wal-Mart Part Deux? Company Appeals Class-Case to Supreme Court — via Workplace Prof Blog
• Does FMLA Cover In Vitro Fertilization? Does It Matter if Dad's Sperm is to Blame? — via Jeff Nowak’s FMLA Insights
• Intermittent FMLA Leave: A Chronic HR Headache (Part I) — via Southwest Florida HR Law & Solutions

LGBT rules for federal contractors now in effect

If you are a federal contractor or subcontractor, this is big week for you. On April 8, the OFCCP’s Final Rule Implementing Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors took effect.

What does this mean for federal contractor’s and subcontractors?

• You must take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
• You must include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
• You must update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
• You must post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Here’s what President Obama said when he signed the Executive Order last year:

It doesn’t make much sense, but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are—lesbian, gay, bisexual, transgender. And that’s wrong. We’re here to do what we can to make it right—to bend that arc of justice just a little bit in a better direction….

Equality in the workplace is not only the right thing to do, it turns out to be good business. That’s why a majority of Fortune 500 companies already have nondiscrimination policies in place. It is not just about doing the right thing—it’s also about attracting and retaining the best talent….

And yet, despite all that, in too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense….

For more than two centuries, we have strived, often at great cost, to form “a more perfect union”—to make sure that “we, the people” applies to all the people. Many of us are only here because others fought to secure rights and opportunities for us. And we’ve got a responsibility to do the same for future generations. We’ve got an obligation to make sure that the country we love remains a place where no matter who you are, or what you look like, or where you come from, or how you started out, or what your last name is, or who you love—no matter what, you can make it in this country.

Here’s to a day, hopefully in the very-near future, when this arc of justice no longer needs to be bent.

Direct evidence must … wait for it … exist to matter in a discrimination case

You have admire the creativity of attorneys. In Butler v. The Lubrizol Corp. (Ohio Ct. App. 3/31/15) [pdf], the plaintiff argued that direct evidence of race discrimination existed because, when confronted with a complaint of discrimination, the plaintiff’s supervisor did not deny it. The appellate court, in affirming the dismissal of the plaintiff’s claims, disagreed:

Specifically, appellant states the trial court erred by declining “to hold that a direct evidence method of proof can be made in a discrimination case based on an ‘admission by omission’….” His argument is that although Decker never admitted to making decisions based on race, he also never denied it, and that the lack of a denial can be used as direct evidence that the accusations are in fact true….

The trial court stated that appellant’s evidence of Decker’s silence “would require the finder of fact to infer solely from Decker’s failure to directly address the accusation of race discrimination that the accusation is true.” … We agree….

Discrimination cases are laced with emotion. The plaintiff, in essence, is accusing the employer and its management of bigotry of one kind or another. When confronted with this accusation, it’s okay for a manager or supervisor to show some humanity by denying it, vehemently. Rest assured, however, that silence in the face of these allegations should not hang the employer with the noose of direct evidence of discrimination.

NLRB issues official guidance on “ambush election” rules

One week from today, the NLRB’s “ambush election” rules take effect. Yesterday, the Board published its official guidance discussing how it will process representation cases going forward.

According to the Board, these new rules do not “establish new timeframes for conducting elections or issuing decisions.” Yet even the quickest reading of the guidance memo reveals the opposite. Timeframes for the filing of briefs, the holding of hearings, and other election-related events are accelerated. For example, employers will have only two business days after the approval of an election agreement to provide a voter list to the union (accelerated from seven days). Five days may not seem like much, but, when you add five days here, and five days there, and a few more days elsewhere, you end up with an election process that is extraordinarily shortened, limiting an employer’s ability to effectively mount a campaign to explain its position to its employees.

Curiously absent from the guidance, however, is a target deadline for the holding of the election. Instead, the Board says the following:

The Board has said that the election should be held at the earliest date practicable consistent with the Board’s rules. At this point, because there is no experience processing cases under the final rule, it is not possible to express a standard in terms of a specific number of days from the filing of the petition to the election. Rather, I expect that regional directors will exercise their discretion and approve agreements where the date agreed upon by the parties is reasonably close to the date when an election would likely be held if it were directed.

Employers, however, should not take too much solace from this omission. The Board is on record as saying that elections under the new rules should be held within 10 days. I have no reason to believe that “the earliest date practicable” is anything different than a target of 10 days.

The guidance memo is a necessary read for all employers. You can download it here [pdf].

NLRB eviscerates the line between insubordination and protected concerted activity

Employers struggle with how to handle employees to take to social media to vent about work. And, they do so for good reason. For one, employers risk creating a viral nightmare out of a fleeting vent. Also, the NLRB continues to take a long, hard look at Facebook firings.

Case in point: Pier Sixty, LLC [pdf].

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration. 

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! 

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Not so surprisingly, when the employer learned of the Facebook post, it fired the employee. Also not so surprisingly, the foul-mouthed Facebooker filed an unfair labor practice charge with the NLRB.

The NLRB sided with the employee:

[W]hile distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “fuck” and “motherfucker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.

Even if the air of this workplace is full with tolerated obscenities, should an employer ever have to tolerate this type of language specifically directed at a member of management and his family? More to the point, as the lone dissenter argued:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases NASTY MOTHER F—er and F—ck his mother and his entire f—ing family are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez’ statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

What are the takeaways for employers?

1. Insubordination is insubordination, period. An employer should not have to put up with this type of harsh language specifically directed at a member of management. Nevertheless, this case illustrates the regulatory environment under which employers currently operate, and the scrutiny that even the safest of terminations might receive.
2. If you want to make sure that you have the freedom to discipline any employee for the use of obscenities, it is safest to apply the same standard to all employees. Nevertheless, I firmly believe that the Board missed the mark in this case. There exists a real and meaningful distinction between the occasional conversational f-bomb and “Fuck his mother and his entire fucking family!!!!“

WIRTW #362 (the #rockweek2015 edition)

Cleveland is popping. We landed the 2016 Republican Convention. We keep showing up on national “best of” lists—best city to visit, best food, best beer…. Our urban renaissance continues at warp speed. We’re even revitalizing the Flats. And, one week from tomorrow, April 11, Rock Week starts, in honor of my city’s triennial hosting of the Rock & Roll Hall of Fame induction ceremony.

Rock Week kicks off with an awesome event. All day April 11, the Rock Hall will open its door for anyone and everyone to enter … free. The event, which the Rock Hall has dubbed Celebration Day, will feature two stages of music, food trucks, family programming and caps with fireworks in Voinovich Park.

At 2:30 pm, School of Rock will perform a set of music by 2015 inductee Joan Jett, featuring (among others) Norah Hyman on guitar and vocals. If you’re looking for something fun to do as we wait for spring to, well, spring, stop by the Rock Hall on April 11 and see my girl strum, sing, and rock. Here’s a small taste.

A video posted by Jon Hyman (@jonhyman) on Jan 24, 2015 at 9:33am PST

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

Young v. UPS

• The ADAAA, Young v. UPS, and the new state of pregnancy accommodation law — via Phil Miles’s Lawffice Space
• Pregnancy accommodation FAQs for employers — via Robin Shea’s Employment & Labor Insider
• What Connecticut Employers Need To Know About Young v. UPS — via Dan Schwartz’s Connecticut Employment Law Blog

Discrimination

• Tim Cook: “Religious Freedom” laws are pro-discrimination — via TiPb
• Transgender Discrimination? He Said, She Said… — via The Employment Brief
• Hiring for Culture Fit: Discrimination by Another Name? — via In House
• 4th Circuit Holds Social Anxiety May Be Disability Under the ADA — via Wisconsin Employment & Labor Law Blog
• Disabilities that pose a “direct threat” in the workplace — via EmployerLINC
• Caregivers are protected from associational discrimination — via Mike Haberman’s Omega HR Solutions
• (Un)Equal Protection: Why Gender Equality Depends on Discrimination — via Ross Runkel Report

Social Media & Workplace Technology

• Your ex-employee won’t tell you the password to your company’s LinkedIn page. Now what? — via Eric Meyer’s The Employer Handbook Blog
• Wearables in the office: Security risk? — via Business Management Daily
• The Enemy Within: Five Strategies For Protecting Your Data From Rogue Employees — via Privacy and Data Security Insight
• Eight Keys for Developing a Data Breach Response Plan — via netWORKed Lawyers
• What the Difference Between Information Security and Cybersecurity? — via Ride The Lightning
• Cybersecurity: FINRA’s Take — via Above the Law
• Social Media Searches: Go Beyond the Google — via Litigation PostScript. Persuasion Strategies for Litigators

HR & Employee Relations

• I Didn’t Come to Work Because I Dreamed I Got Fired — via Workplace Insights
• My Employee Suddenly Became Gluten Intolerant — via Evil Skippy at Work
• When You Have to Let People Go, Do It With “Professional Kindness” — via TLNT
• Is Work Flexibility Already Trickling Into Your Office? — via 1 Million for Work Flexibility
• The Love Contract – Taking the Romance Out of Office Trysts — via The Labor Dish
• Litigation Update: FCRA Claim Against Paramount is Thrown Out — via employeescreenIQ Blog
• A new employer obligation to provide predictable scheduling? — via Overlawyered
• In surprise show of support, filibuster-proof Senate majority backs paid sick leave — via Wonkblog

Wage & Hour

• PTO – I Use It or I Lose It (Mentally, That Is) — via Rob Schwartz’s Dad Working
• Ninth Circuit Creates Circuit Split Regarding FLSA Classification of Sales Advisor Position — via Wage and Hour Law Update
• The Department of Labor Investigates Retailers’ Relationships with Janitors — via The Wage and Hour Litigation Blog
• Secret Service Hit with Overtime Suit on Off-The-Clock Work — via Wage & Hour - Development & Highlights
• The Religious Freedom Restoration Act (RFRA) and Wage and Hour Law — via Wage & Hour Insights
• When — and How– to Require Certification of FMLA Leave Requests — via The Emplawyerologist

Labor Relations

• President Obama Vetoes Senate Joint Resolution Disapproving NLRB’s New Union Election Rules — via Employment Law Worldview
• NLRB to weigh in on high-stakes McDonald’s labor dispute — via The Hill
• Legislation Allowing Unionized Companies to Give Merit Raises Introduced in Congress — via Matt Austin Labor Law
• #Nextchat RECAP: Are College Athletes Students or Employees? — via Next Blog

“Daddy, why do Jewish people not like Catholics?”

On Wednesday nights, my wife and I drop our daughter off at band practice, and then take our son to dinner before his keyboard lesson starts. While sitting at dinner last night, my son hit us with this bomb: “Daddy, why do Jewish people not like Catholics? … Why did the Jews kill Jesus?”

If you’ve been a long-time reader, you know that my family is interfaith. Even though my kids are being raised Catholic, they understand that their Catholicism is only half of their religious background. I could go into a long dissertation as to why they are being raised Catholic, but the reality is that I am much more a secular Jew than a religious Jew, and since kids need to be raised something, Catholicism makes more sense, even to me.

Be that as it may, I certainly don’t want my kids thinking that their Jewish side doesn’t like their Catholic side. This morning on the way to the school bus I probed Donovan on where he got the idea that Jews don’t like Catholics. As it turns out (and as I suspected), it was his takeaway from hearing the crucifixion story at PSR on Monday night. I have no doubt that the message wasn’t one of hate, but rather one of miscommunication. Nevertheless, in Donovan’s developing six-year-old brain, when he was heard, “The Jews didn’t like/support/belive-in Jesus,” he understood it as, “Jews don’t like Catholics.” It an honest interpretation from an intelligent six-year-old boy, since he’s been taught his whole life that Catholicism and Jesus are intertwined.

I will explain to Donovan tonight that Jews and Catholics love each other. After all, he’s Catholic, as is his sister, mom, grandma, grandpa, aunts, uncles, and cousins—and I love all of them. I will try to explain, as best as I can, the historical context of what happened 2,000 years ago, and, hopefully, he’ll understand that what some people did those millennia long ago does not translate to today. Then, I will explain to the PSR teacher that she needs to be sensitive to the fact that she is teaching at least one interfaith child, and must tailor her message so as not to alienate or upset. We should be teaching inclusion, not estrangement.

The same lesson translates to your workplace. We live in a multi-cultural, multi-religious society, yet we are becoming more and more fragmented. Our great melting pot is not longer an olio, but an mishmash of separate ingredients holding for dear life to the edge of the pot. We are fragmented by religion, national origin, and political belief. Your challenge as an employer is to ensure that your workplace is integrated. You need to ask yourself what kind of workplace you desire. Do you want a workplace of inclusion or exclusion? Do you want employees to feel as though they are part of a team, or part of a tribe that happens to work among other tribes in the same building? To me, the former not only makes for a more cohesive workplace, but also one that limits the risk of liability for harassment, discrimination, and retaliation.

When English-only policies and federal labor law collide

It’s been nearly 8(!) years since I first wrote about the legality of English-only workplace rules. If you scan the archives, all of my coverage of this issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII.

Now the NLRB is attempting to interject itself into this debate.

Last month, in Valley Health System [pdf], an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”

The ALJ concluded:

Employees would reasonably construe [the] English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.

What does this decision mean for your business?

1. It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land. However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.

2. It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.

Are Meerkat and Periscope the “next big thing” for employers to worry about?

Have you downloaded Meerkat or Periscope to your iPhone? Do you even know what Meerkat and Periscope are? They are new apps that permit you to live-stream video. They essentially work the same way—when you launch a live-stream, the app tweets out a link for your followers to watch your video. The only real difference in the experience (aside from the aesthetics of the apps) is that once you stop your stream on Meerkat the link goes dead and the video disappears, while Periscope can keep the link live for 24 hours of replay viewing.

Last week, within hours of Meerkat’s and Periscope’s launches, a massive building explosion on New York’s Lower East Side gave us a glimpse of the potential power of these apps, as they turned everyone with an iPhone into instant video-journalists. As for me, so far I’ve only used them to send out video of my dog sleeping on the couch (although I hope to put Periscope to use for some video legal updates in the near future).

Should employers worry about these apps? They offer employees tremendous power. Imagine your workers live-streaming alleged safety violations in your plant, or active sexual harassment, or a termination meeting, or an employer trying to break up a picket line?

Yet, this technology isn’t the-sky-is-falling for employers. For years, the iPhone has placed this same power into employees’ hands. An iPhone + an active internet connection + a YouTube account isn’t that much different than these new live-streaming apps. These apps remove some of the friction from the posting experience, but otherwise don’t create any new opportunities for your employees to journalize your workplace.

Employers shouldn’t knee-jerk ban these apps (or mobile devices in general) from the workplace. It’s possible that the NLRB would permit employers to ban the use of these apps in the workplace, but it’s just as likely that the NLRB will look at such policies with a harsh eye under its section-7 lens. Until we get some guidance from courts on these issues, there is real risk in broad-based bans of mobile technologies or apps.

Instead of rolling out a reactionary policy that could catch the NLRB’s attention, train your employees on their responsible use of the Internet, and your managers and supervisors on the need to be very aware of the possibility that everything that happens at work no longer necessarily stays at work. Indeed, if it happens at work, it is just as likely to end up on Facebook, Twitter, Instagram, YouTube … or Periscope.

You can follow me on Periscope @jonhyman, and tune in at 5 pm on April 11, where I’ll be broadcasting some of my daughter’s performance live from the Rock and Roll Hall of Fame.