Beware the email chain of fools

A software engineer rejected for a job by GoDaddy is suing the company for discrimination. Why does he believe that the company discriminated against him? According to USA Today, he read it in the email chain included in his otherwise vanilla rejection email.

The e-mail…, which appears to be sent from a group titled the “GoDaddy Recruiting Team,” begins with a tame form letter, explaining that Connolly had not been selected for a job as a mobile IOS developer. But the note he said he saw below it in the e-mail chain packed an unusual punch.

It read, “about keith he’s great for the job in skills but he looks worse for wear do we really want an obeese (sic) christian? is that what our new image requires of us.”

Like many before it, GoDaddy says that either it was hacked or the email was fabricated. Some computer forensics will sort out the truth of that defense. If it turns out that the email is legit, GoDaddy might want to rethink its “we are not offering any kind of settlement or an apology” position.

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun. 

And, before my employee-advocate readers get all over my case for defending one’s right to discriminate merely by keeping silent, yes, in an ideal world no one would think this way. But, my job is to defend the companies that have the misfortune of employing those that do. If GoDaddy is wrong, and one of its recruiters did send that email, then it should stand by its pronouncement that it is “proud to be an Equal Opportunity Employer” and settle, period.

Racist comments as protected concerted activity (really!)

Racism at work cannot be tolerated, right? So here’s a quick quiz. Assume you hear a white employee yelling the following at black co-workers:

• “Hey, did you bring enough KFC for everyone?” and
• “I smell fried chicken and watermelon!”

Do you: a) fire the offending employee; or b) brush it off? 

I’m going to lay pretty decent odds that most of you opted for choice “a.” Would you believe, though, that according to one NLRB judge, the answer depends on whether the racist employee is walking a picket line.

In Cooper Tire & Rubber Co. (6/5/15) [pdf], Administrative Law Judge Randazzo concluded that, while clearly racist, offensive, and inappropriate, the employer violated the NLRA when it fired the offending employee because he made the remarks in the context of a strike and there were no corresponding threats of violence:

Runion’s “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.… The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.

Thus, an employee is justified, under the NLRA, to be as racist as he wants to be as long as: 1) the comments are made in the context of otherwise protected, concerted activity, and b) the comments are not accompanied by violence or overt threats of violence.

Although the breadth of the NLRB’s current iteration’s interpretation of “protected concerted activity” should surprise no one, I am stunned that this ALJ has gone this far. 

1. No employee should be subjected to this type of abuse, picket line or no picket line, and it is shameful that this type of misconduct is condoned.
2. Employers should not be forced into a Hobson’s Choice between the NLRA and Title VII. Retaining the offender may save the employer from liability under the NLRA, but it won’t do the employer any favors if the victim pushes the issue under Title VII.

If nothing else, this case is a scary reminder of how far the NLRB and its judges will go to fine protected concerted activity. Employers, you are warned/

DOL set to publish guidance on independent-contractor status

Later this morning, I’ll board a flight for New York City to tape a segment for John Stossel’s Fox News show, to air Friday at 8 pm on Fox Business. We’ll be discussing the over-complexity of labor and employment laws, and their over-regulation of American businesses.

I’m certain one topic to be covered is our wage-and-hour laws. Serendipitously, according to Employment Law 360 [subscription required], Department of Labor Wage and Hour Division administrator David Weil recently announced that he will shortly publish an “administrator interpretation” to clarify who qualifies as an independent contractor.

The distinction between employee and contractor continues to beguile employers, and is ripe for problems under both wage-and-hour laws (among other legal entanglements). Individuals continue to file multi-million dollar class-action lawsuits claiming mis-classification as contractors cost them years of unpaid overtime. And, courts continue to take a hard line against companies that try to skirt their legal responsibilities via these mis-classifications.

Is it too much to hope for a reasonable interpretation from administrator Weil that permits bona fide contractors to remain classified as such? He speaks of a "holistic," as opposed to "mechanical" approach, which "requires a careful consideration of the economic realities and multiple aspects of the relationship." Expect a fuzzy standard with lots of gray area, which will continue to cause employers fits. Or, in other words, expect the status quo to continue, with employers who classify all but the clearest of workers as employees taking a huge wage-and-hour gamble.

Defining the three-headed associational disability claim

You likely know that the ADA protects employees from discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” But did you know that the ADA has three different theories to define this associational disability?

1. Expense (the cost of insuring the associated disabled person under the employer’s health plan);
2. Disability by association (a fear by the employer that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have); and 
3. Distraction (the employee is inattentive at work because of the disability of the associated person).

In Williams v. Union Underwear Co., (6th Cir. 6/5/15) [pdf], the court rejected the plaintiff’s attempt to use each of these theories to challenge his termination after his wife was diagnosed with Wagner’s Vascular Disease, which weakened her immune system. Other than the coincidental timing between the the wife’s diagnosis and the alleged beginning of Williams’s adverse treatment at work, the court could not find any other evidence of disability discrimination. Absent something in addition to timing, the court could not conclude that Williams had presented sufficient evidence to get his discrimination claim to a jury.

We, as employers, often treat employee’s with family medical issues with kid gloves. We not only worry about potential liability under the ADA, but also the FMLA. Yet, these employees are not bulletproof. In Williams, the plaintiff had suffered years of marginal performance, and the employer had enough. Without something in addition to the mere fact that his wife suffered from a rare disease, this court was unsympathetic to his claim, which should provide hope to employers that want to hold all employees accountable to reasonable performance standards.

WIRTW #369 (the “see me, hear me”) edition

It’s been awhile since I’ve updated everyone on when and where you can hear me speak, and I’ve got a bunch coming up in the next few weeks. So, here you go:

• Later today, I’m presenting on managing generational issues in the workplace at the Lakeland Community College 8th Annual Small Business Symposium.
• On June 10, at 2 pm, I’m presenting a webinar on how to create a safer, OSHA-compliant workplace, for HRdirect.
• On June 16, at noon, I’m presenting a webinar on OSHA compliance and workplace safety, for the West LegalEdcenter.
• On June 17, at 1 pm, I’m part of a panel webinar on the NLRB’s new “quickie” election rules, for Strafford.

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

Discrimination

• Five harassment “must haves” for employers — via Robin Shea’s Employment & Labor Insider
• Caitlyn Jenner’s Unveil Forces the Discussion of Transgender at Work — via Blogging4Jobs
• Employer’s search for “devious defecator” backfires after suspects sue under genetic privacy law — via ABA Journal
• Is It OK To Ask An Older Job Candidate If She Can Handle Supervising Young People? — via Evil Skippy at Work
• New DOL rules could blacklist fed contractors — via Business Management Daily
• Allergic At Work Is Not Allergic To Work — via The Labor Dish
• This employer had a “no pregnancy in the workplace” policy. No, really. It did. — via Eric Meyer’s The Employer Handbook Blog
• Employee Stressed Out By Manager Is Not Disabled And May Be Terminated — via Employment Law Worldview
• Now you know: rent two not one units for employee lodging — via Overlawyered

Social Media & Workplace Technology

• Should Companies Be Giving Fitbits To Employees? — via Workplace Diva
• How Wearable Technology Will Affect the Workplace — via Employment Intelligence
• More Bosses Expected To Track Their Staff Through Wearables In The Next 5 Years — via Forbes
• The Inbox – Orwell’s Big Brother Has An App For That — via Suits by Suits
• Aspects of Private Social Media Groups May Be Protectable Under Illinois Trade Secret Law — via Trading Secrets

HR & Employee Relations

• Flexibility and Job Satisfaction: Are Employers Listening? — via Next Blog
• June 1, 2015, Hazardous Communication Requirements Now In Effect — via OSHA Law Blog
• Is Your Employee’s Injury Reportable Under OSHA? — via The Emplawyerologist
• Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review

Wage & Hour

• How Fowl! Is An Employee’s Text and His Girlfriend’s Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast… — via Jeff Nowak’s FMLA Insights
• Can An Employee Assert State Law Wage Claims Based on Alleged Wrongful Tax Withholding? — via Minnesota Employer
• Department of Labor Seeks Information about Employees’ Use of Smartphones — via Wage & Hour Insights 
• Survey Shows Corporate Counsel Especially Fear Class Actions: With Good Reason! — via Wage & Hour - Development & Highlights
• General Release Obtained By Defendant in Non-FLSA State Court Case Did Not Waive FLSA Claims — via Overtime Law Blog

Labor Relations

• NLRB Issues Charge Against Ikea — via Labor Relations Today
• NLRB Ambush Election Rules Upheld by Texas Federal Court — via Hunton Employment & Labor Law Perspectives™
• Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections — via Management Memo
• Federal Court affirms that federal contractors have to inform workers of unionization rights — via Mike Haberman’s Omega HR Solutions

Transgender rights take center stage

It’s been a big week for the rights of transgender Americans.

• Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.

• The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.

• OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.

While we wait for the law the catch up to society’s opinion on LGBT rights (i.e., same-sex marriage rights and official statutory extension of Title VII’s protections to LGBT employees), our federal agencies are doing the best they can to modernize these laws for us. If you are still discriminating against LGBT employees, it’s time to stop. You are officially behind the times. It was not that long ago that LGBT rights were a joke. Now, we are on the verge of a breakthrough. Are you going to ride the wave, or hold onto the jam of the door that Caitlyn Jenner just kicked down kicking and screaming. The choice, for now, is yours, unless you run afoul of the EEOC, OSHA, or a court, each of which is doing is best to do what Congress has, thus far, refused.

Did the 6th Circuit just guarantee jury trials in off-the-clock wage/hour cases?

One of the most difficult things to do is prove a negative. Yet, this is exactly the problem that employers face when defending wage and hour cases in which the employee alleges work performed off-the-clock. The employer says that the time clock defines the paid limits of the workday, while the employee says that s/he should be compensated for work performed outside the parameters of those clock-ins and clock-outs.

In Moran v. Al Basit LLC (6/1/15) [pdf], the 6th Circuit was faced with a simple question—does an employee need something other than his or her own testimony to establish an entitlement to unpaid compensation under the FLSA?

Sadly, the 6th Circuit ruled in the employee’s favor.

Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty-eight hours.… However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy.… It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.”

This ruling is scary, and has the potential to work extortionate results on employers. If all an employee has to do to establish a jury claim in an off-the-clock case is say, “The employer’s records are wrong; I worked these approximate hours on a weekly basis,” then it will be impossible for an employer to win summary judgment in any off-the-clock case.

Employers, the cost of defending wage-and-hour cases just went up, as did the risk for businesses. Even meticulous wage-and-hour records might not save you from a foggy memory of a disgruntled ex-employee.

#SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case

Yesterday, the United States Supreme Court ruled that an employer violates Title VII’s religious accommodation requirements if the need for an accommodation was a “motivating factor” in its decision, regardless of whether the employer had actual knowledge of the religious practice or its need to be accommodated.

The case, EEOC v. Abercrombie & Fitch Stores [pdf], is an unambiguous win for religious freedoms, while, at the same time, places an added burden on employers to make educated guesses about applicants’ and employees’ potential needs for workplace religious accommodations.

Abercrombie involved a conflict between a hijab-wearing Muslim job applicant and the employer’s “look policy.” The unusually terse seven-page opinion (of which only a little more than three was dedicated to actual legal analysis) focused on the difference between motive and knowledge in explaining its holding:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.…

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. 

So, if knowledge is irrelevant, what is an employer to when faced with one’s potential need for a religious accommodation? More the point, isn’t an employer faced with having to make educated guesses (based on stereotypes such as how one looks or what one wears) of the need for an accommodation? Title VII is supposed to eliminate stereotypes from the workplace, not premise the need for an accommodation on their use. And that’s my biggest critique of this opinion—it forces an employer into the unenviable position of applying stereotypes to make educated guesses.

Nevertheless, employers are stuck with the Abercrombie “motivating factor” rule as the rule for religious accommodations moving forward. Thus, let me offer a simple suggestion on how to address this issue in your workplace—talk it out. Consider using the following three-pronged approached to ACE religious-accommodation issues in your workplace.

• Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation. 

• Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.

• Educate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.

This decision is a potential game-changer for employers. Make sure you understand the implications of Abercrombie, so that you are as accommodating as the law requires.

Image courtesy of Jeffrey Weston’s Ape, Not Monkey
http://www.apenotmonkey.com/2012/04/09/religious-accommodation/

6th Circuit: reasonable belief about unlawful conduct enough for SOX retaliation

It’s hard to imagine that in the eight-plus years I’ve written this blog, there is any area of employment law that on which I have not yet touched—except, I think, the Sarbanes-Oxley Act. Today, that changes.

For the uninitiated, Sarbanes-Oxley (or SOX) is a federal statute, enacted in reaction to a several corporate and accounting scandals (think Enron), which establishes conduct standards for public company boards, management and public accounting firms.

In Rhinehimer v. U.S. Bancorp Investments, Inc. (6th Cir. 5/28/15) [pdf], the 6th Circuit addressed the standard for protected conduct under SOX’s anti-retaliation provisions. Does the plaintiff have to prove an underlying fraud, or it is sufficient for the plaintiff to have a reasonable belief that a fraud was committed?

The facts in Rhinehimer are not complicated. Prior to taking a disability leave, Rhinehimer, a certified financial planner, transferred some of the assets of a long-term, elderly client into low risk, conservative investments. While on leave, Rhinehimer’s assistant alerted him to the fact that a co-worker moved some of those assets into riskier investments. Believing those moves to be contrary to the client’s estate plan, Rhinehimer sent an email to his supervisor complaining about the transactions. Upon his return from leave, Rhinehimer was disciplined for his “unprofessional” email. That email spawned an investigation by FINRA. When Rhinehimer informed his employer that he had retained an attorney in response to the FINRA investigation, he was fired.

At issue on appeal was whether a plaintiff claiming retaliation under SOX must allege the specific elements of fraud relating to the underlying transaction, or if a reasonable, but mistaken, belief about the illegality of the underlying (mis)conduct will support the retaliation claim.

The 6th Circuit held for the more liberal proof standard.

Although it is true that Plaintiff had no specific knowledge of whether Harrigan had omitted or misrepresented material information in his communications with Purcell, much less any knowledge of whether Harrigan did so intentionally or with reckless disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about the trades were above board, courts universally recognize that [SOX] protects employees who reasonably but mistakenly believe that the conduct at issue constitutes a violation of relevant law.… 

The information that was available to Plaintiff was more than adequate to allow him reasonably to believe that the trades were the result of conduct constituting unsuitability fraud. When USBII retaliated against him for reporting that information, it therefore violated Sarbanes–Oxley’s whistleblower protections.  

If you are a publicly-trade company, employees who lodge complaint about financial improprieties or other financial issues require special treatment. If faced with one of these complaints, do not get hung up on the rightness or wrongness of the complaining employee’s belief about the illegal conduct, because, if you later fire that employee, it appears the reviewing court will not care. 

WIRTW #368 (the “let's go Cavs” edition)

It’s t-minus six days until championship fever sweeps the most victory-starved city in America. Let’s go Cavs!

A photo posted by Cleveland Cavaliers (@cavs) on May 27, 2015 at 12:02pm PDT

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

Discrimination

• Being “Qualified” Doesn’t Necessarily Mean Being Able to Perform “Essential Functions” of Job — via Dan Schwartz’s Connecticut Employment Law Blog
• Here’s Why Your Company Should Offer Paid Maternity Leave — via TLNT
• Private Employers Likely to Face Gender Identity Discrimination Claims as Federal Government Continues to Expand Title VII Protections to Transgender Employees — via Employer Defense Law Blog
• EEOC Will Now Process and Investigate Sexual Orientation, Transgender, and Gender Identity Claims — via Randy T. Enochs’s Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• Five Key Social Media Questions All Health Care Employers Should Consider: Question #3: How Do I Protect Patient Privacy On Social Media? — via netWORKed Lawyers
• Those without Facebook accounts need not apply. Well, maybe not in one state. — via Eric Meyer’s The Employer Handbook Blog
• Doing online “reputation management”? — via Walter Olson’s Overlawyered
• “Sixth Circuit creates circuit split on private search doctrine for computers” — via How Appealing
• What Companies Should Ask Before Embracing Wearables — via Harvard Business Review
• Cyber Insurance: Why you should require certain vendors to have it — via Privacy and Data Security Insight
• Don’t Tweet On Me! — via Employment Law Lookout
• Texting in the office: a problem, or just yet another distraction? — via Business Management Daily

HR & Employee Relations

• American Ninja Warrior – Lessons on Family, Life, & Work — via Rob Schwartz’s dadworking
• No Matter What Scrabble Says, Don’t Ever Use These 10 Words at Work — via Evil HR Lady, Suzanne Lucas
• Hilariously honest job posting admits the pay is ‘sh*t’ and the boss is a ‘d*ckhead’ — via Boy Genius Report
• The Pros and Cons of Mandatory Workplace Arbitration — via Abovethelaw.com
• Work/Life Balance and Lessons from Managing Two Careers — via YourHRGuy.com
• Millennials may not be the radicals you think — via Mike Haberman’s Omega HR Solutions
• Slowly but surely, workplace bullying laws are becoming a reality in the U.S. — via Minding the Workplace

Wage & Hour

• Wage and Hour Division Seeks Information on Smartphones’ Impact on Hours Worked — via The Wage and Hour Litigation Blog
• Wage-Hour Audits: Lessons Learned From Chipotle’s Heartburn — via The Wage and Hour Litigation Blog
• An Open Letter to the Department of Labor Concerning The Proposed Changes To Exemptions for White Collar Regulations — via Wage and Hour Law Update
• Third Circuit Defines “Overnight Stay” for FMLA — via Phil Miles’s Lawffice Space
• FMLA Leave: sometimes, it is about putting the pieces together — via Employer Law Report
• OSHA Publishes New Whistleblower Investigations Manual — via Employment Law Lookout
• OSHA Issues Spring Regulatory Agenda — via OSHA Law Blog
• The ACA Today: Where it Stands and How it Affects Employers — via ERC Insights Blog

Labor Relations

• General Counsel Responds to Labor Practitioners’ Questions — via Vorys on Labor
• Regional Directors Report Data on The NLRB’s Amended Election Rules After One Month – Court Challenges Continue — via Health Employment and Labor
• Video: What every new Wal-Mart employee hears about why unions are terrible — via Wonkblog
• Board Dismisses Six ULP Charges Against Am. Apparel — via Labor Relations Today
• Update: What Recent NLRB Activity Means for Employee Handbooks and Policies — via Intown Employer
• Is the NLRB is expanding its list of “inherently” concerted protected activities under Section 7? — via Employment Law Matters
• How We’re Voting on the Union, and Why — via Deadspin

A lesson on the importance of uniformity in performance standards

Under the ADA, and employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

What happens, however, when an employer holds a disabled employee to a higher performance standard than non-disabled counterparts? Consider Wolffram v. Sysco Cincinnati (S.D. Ohio 5/19/15).

The plaintiff in Wolffram was a diabetic, and, as a result, needed extra time for bathroom breaks during the work day. Those bathroom breaks caused Wolffram’s performance to suffer on Sysco’s electronic performance monitoring system. Because Wolffram consistently fell below the minimum performance requirements, Sysco ultimately terminated him. Nevertheless, he defeated Sysco’s summary judgment motion on his disability discrimination claim. How? Because he claimed that other non-disabled employees were given more slack on the performance standards, that other employees “cheated” the system but were not disciplined or terminated.

Employers, it’s okay to have performance standards. It’s even okay to require that each of your employees, disabled and non-disabled, meet those standards. When you start letting those standards slip, however, you become exposed to claims from disabled employees who cannot otherwise meet the requirements because of their disability. Yet another example of how the EEO laws require uniformity of application in your workplace.

“You’re late again!” “Talk to my lawyer.”

I’m timely to a fault. I hate being late, and go to great lengths to ensure that I am never tardy for anything. I think it’s annoying to those around me, or least those I live with. Just ask my kids.

Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.

Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.

Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.

Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.

Putting together the puzzle on off-duty emails and overtime

Employers, I can see the writing on the wall, and it’s not looking good for your continued reliance on your non-exempt employees using their smartphones off-the-clock.

In the past few days, this issue has picked up a ton of momentum. First, the Wall Street Journal ran an article entitled, “Can You Sue the Boss for Making You Answer Late-Night Email?” Then, the Wage & Hour Litigation Blog reported that the Department of Labor’s Wage & Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work outside of scheduled work hours.” Finally, the ABA Journal reminded us that the same Wage & Hour Division will likely raise the salary floor for exemption eligibility from $23,600 a year to $50,000 a year. This significant bump in the salary test will remove a large chunk of your employees from many of the FLSA’s key overtime exemptions.

What does all this mean? It means that you need to take a long, hard, look at which of your employees you are requiring to connect when they are “off-the-clock.” If you are requiring your non-exempt employees to read and respond to emails after their work day “ends,” you need to examine whether the FLSA requires that you pay them for that time (more often than not at a 1.5 overtime premium).

I’m pretty certain that the Department of Labor consider this time compensable, but I’m not so sure. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

Nevertheless, if you want to eliminate the risk over this issue, I suggest you consider a couple of steps:

1. Audit all of your employees for their exempt status. This audit will ensure that you have your employees properly classified as exempt versus non-exempt.
2. Consider implementing an email curfew for your non-exempt employees (which has its own pros and cons).

This issue is not going away any time soon, and illustrates the difficulty the law has keeping up with the stunning pace of technology.

For more on this important issue, I recommend Just how nervous should companies be about FLSA lawsuits over employee smartphone use? (Hint: very) via Eric Meyer’s Employer Handbook Blog.

New poll reveals continued risk in Googling job applicants

According to a recently published Harris Poll, 52 percent of employers use social media to research job candidates. This number is up from 43 percent in 2014 and 39 percent in 2013.

What information are employers looking for?

• 60 percent are looking for information that supports their qualifications for the job.
• 56 percent want to see if the candidate has a professional online persona.
• 37 percent want to see what other people are posting about the candidate.
• 21 percent admit they’re looking for reasons not to hire the candidate.

The same poll found that 35 percent of hiring managers who use social media to screen applicants have sent friend requests or otherwise attempted to connect with applicants online. As stunning as that number is, it’s even more stunning that 80 percent report that job seekers report accepting such requests. 

Employers, please stop the insanity. I’m not treading new ground here by telling you that you are taking a huge risk by Googling or Friending applicants without proper checks in place to guard against the disclosure of protected information. “What types of information,” you ask? How about information about the individual’s medical history or religious preference, for starters. 

Yes, there are a host of reasons to engage in these searches. Indeed, I believe that, in a world of increasing transparency online, employers take a risk by not including Facebook in their pre-employment background searches. But, it needs to be part of larger background screening program. And, you need to ensure that you have the right checks in place to keep protected information (such as EEO stuff) as far away from the decision makers as possible. 

How do you do this? Train someone external to your hiring process to perform the searches, and provide a scrubbed report to those internal to the hiring process. These scrubbed reports should be void of any protected information, while including any info relevant to the hiring decision (such as whether the applicant has ever trashed an ex-employer online, or disclosed an ex-employer’s confidential information, or exhibits poor judgment by posting inappropriate or harassing stuff).

And, for god’s sake, please stop Friending job applicants. It’s just plain creepy.

Employment Law Blog Carnival: The “Wreck of the Old 97” Edition #ELBC

On September 27, 1903, the Old 97, a Southern Railway mail train running between Washington DC and Atlanta, Georgia, derailed near Danville, Virginia. The wreck inspired a famous ballad (most famously covered by Johnny Cash and Hank Williams III), which, in turn, inspired the Old 97’s to name their band some 70 years later.

I’m not shy with my love for the Old 97’s. Part of my adoration stems from how great their music is. And it’s not just the jangly vibe that kills on an album, or in a bar, or in a concert hall. Rhett Miller writes some of the best lyrics you will ever find, with most songs focusing on love, heartache, booze, or some combination of the three. The rest of my love stems from how cool they’ve been to my daughter, Norah (here and here).

Regardless the reason, my favorite band gets billing as the honoree of this month’s Employment Law Blog Carnival, as we look at the month’s best blog posts through the swarthy lens of some of the Old 97’s best songs.

Victoria

This is the story of Victoria Lee
She started off on Percodan and ended up with me
She lived in Berkeley ’til the earthquake shook her loose
She lives in Texas now where nothin’ ever moves

Poor Victoria Lee had a rough go of it. Narcotics and one-night stands. What if your corporate wellness program reveals an employee like Victoria. Employment Essentials has some suggestions, in The EEOC Asks: Is Your Corporate Wellness Program Really Voluntary?


The New Kid

The new kid, he’s got money
The money I deserve
He’s got the goods
But he’s not good for his word

This song hold a real special place in my heart (see above, about my daughter). When you hire a new employee, do you know how to handle trade secrets and restrictive covenants? Jesse R. Dill at Walcheske & Luzi, in Wisconsin Supreme Court Adds New Twist to Restrictive Covenant Law, and Heather Bussing at HR Examiner, in People Are Not Trade Secrets, offer some suggestions.


Over the Cliff

Please don’t call me cool just call me, “A⌇⌇hole”
’Cause I will be a beggar not a king
And the devil don’t care if you’re a fish or you’re a stick
Yeah, I’m goin’ over the cliff

Has the NFL gone over the cliff with Deflategate? Did the league screw the pooch by choosing the wrong investigator? Lorene Schaefer’s Win-Win HR, in Given the Stakes, Should the NFL Have Selected a Different Investigator in Deflategate?, has some thoughts on what Roger Goodell should have done.


Wish the Worst

I hope you crash your momma’s car
I hope you pass out in some bar
I hope you catch some kinda flu
Let’s say I wish the worst for you

Crashed cars and the flu are certainly bad. The Mad Pooper, though, is clearly worse, says Eric Meyer’s Employer Handbook Blog, in Well, that stinks! Doo-doo creates a discrimination claim.


Four Leaf Clover

I got a lucky silver dollar
My granddad gave it to me now he’s dead
Times like this I wish that I could join him
Might just stop this pounding in my head

How lucky will franchisors feel when the NLRB finally clarifies its stance on joint employers? Phil Miles’s Lawffice Space shares NLRB GC on Joint Employers.


Every Night Is Friday Night [Without You]

Now I’m no saint
But I ain’t such a freak
On the days of the week
I work hard, hard

If an employee works hard, but feels he or she is getting the short end of the pay stick, will the FLSA cover their oral complaints? Doug Hass’s Wage & Hour Insights offers Second Circuit Extends FLSA Anti-Retaliation Provision to More Oral Complaints.


Niteclub

Eighteen-hundred miles from this old niteclub
A girl is turning twenty-two today
How am I supposed to entertain you?
My fingertips are worthless when my mind’s so far away

Long distance relationships certainly present their problems. What about remote employees? Read 6th Circuit Holds That Regular and Predictable On-Site Job Attendance is an Essential Function via Randy Enochs’s Wisconsin Employment & Labor Law Blog


Question

Some day somebody’s gonna ask you
A question that you should say yes to
Once in your life
Maybe tonight I’ve got a question for you

“Question” might be (is?) the most romantic song ever written. Meanwhile, John Holmquist, at his Michigan Employment Law Connection, warns about another (much less romantic) question, Arbitration … be careful what you ask for, while Donna Ballman, at her aptly titled Screw You Guys, I’m Going Home, asks, What Did The Florida Legislature Do For Employees? Diddly squat, with one silly exception.


Let’s Get Drunk & Get It On

Take you to a cheap hotel out on the interstate
Well you look so great to me
This is the perfect place for a rendezvous
Its got a rotten view but the ice is free
Let’s drink whiskey and do it
all night long
Let’s get drunk
and get it on

Believe it or not, “Let’s Get Drunk…” is also a romantic song; don’t let the catchy title fool you. Be careful about getting it on at work, warns Dan Schwartz, at his Connecticut Employment Law Blog, in 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo.


Murder (Or A Heart Attack)

And I told the neighbors, I put pictures up
And handed out some flyers at the show
And the whole town speculating
Situations could’ve been avoided if I’d only shut the window

One of the band’s biggest hits tells the story of a lost cat that escapes through an open window. You can imagine the investigation that followed to bring the kitty home. “What about investigations at work,” you say? I have you covered, via Ari Rosenstein’s Small Biz HR Blog, in Conducting Effective (and Legal!) Workplace Investigations, and Stuart Rudner at Rudner McDonald, in Employees: Honesty in the Course of a Workplace Investigation Pays Off.


Doreen

When I first met Doreen
She was barely seventeen
She was drinking whiskey sours in the bar

Sex with a minor at work? Check. What if it happens only once? Did the 4th Circuit’s recent decision spell certain doom for employers? Robert Fitzpatrick on Employment Law provides a nice summary, in Fourth Circuit Overturns Decade of Precedent in Blockbuster En Banc Hostile Work Environment Decision, while Robin Shea’s Employment & Labor Insider, in Is this new harassment decision the end of the world for employers?, thinks the reaction to this decision is way overblown.


Timebomb

I got a timebomb in my mind Mom
I hear it ticking but I don’t know why
I call the police but they don’t like me
I hear ‘em whispering when I walk by

This month’s carnival ends the same way every Old 97’s show ends, with the raucous riffs of Timebomb, from 1997’s Too Far to Care. If you have a timebomb in your workplace, I bet the FMLA has something to do with it. Janette Levey Frisch’s The EmpLAWyerologist suggests how to handle an employee abusing FMLA, in Is Your Employee Abusing Her FMLA Leave?

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Philip Miles, author of Lawffice Space and all around good guy, will host next month’s Employment Law Blog Carnival, on June 17. If you want to participate, email Phil a link to your employment-law-related blog post by June 12.

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 #368.

Some thoughts on arbitration agreements for employees

Recently, the Cuyahoga County Court of Appeals stymied an attempt by an employer to enforce an arbitration agreement against an employee. The employer was a Burger King franchise and the employee was a former employee claiming she was raped by her supervisor in the restaurant’s men’s bathroom. The court, in Arnold v. Burger King, concluded that, for various reasons, enforcing the agreement against her and requiring her to arbitrate her claims would be unconscionable.

Arnold notwithstanding, arbitration continues to the favored method used by employers to limit their potential exposure in front of a jury. I, however, am not a fan of arbitration agreements. Conventional wisdom suggests that arbitration is quicker and cheaper means to resolve lawsuits. Research, however, suggests that the opposite may better match reality.

lf arbitration is neither faster or less expensive than court, but you still want to foster expediency and limit the risk of a runaway jury verdict, consider two possible alternatives.

Contractual Waivers of Jury Trials

First, employers can have employees sign agreements waiving the right to ask for a jury in any subsequent legal disputes. More than 20 years ago, in K.M.C. Co. v. Irving Trust Co., the 6th Circuit stated: “It is clear that the parties to a contract may by prior written agreement waive the right to jury trial.... [T]he constitutional right to jury trial may only be waived if done knowingly, voluntarily and intentionally.” The contract should clearly and unambiguously advise the employee that by signing the agreement the employee is giving up any and all rights to have any claims related to his or her employment raised by a jury. The more broadly the waiver is drafted, the more likely it will cover an employment-related claim, provided it is otherwise knowing and voluntary.

Agreements to Shorten the Statute of Limitations

Secondly, employers can attempt to limit the amount of time employees have to assert employment claims. In Thurman v. DaimlerChrysler, Inc. [pdf], the 6th Circuit held that a clause in an employment application limiting the statutory limitations period for filing a lawsuit against the employer was valid. Thurman’s employment application with DaimlerChrysler contained a clause waiving any statute of limitation and agreeing to an abbreviated limitations period in which to file suit against the employer. Specifically, the clause stated:

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

The Court held that the abbreviated limitations period contained in the employment application was reasonable, and that all of Thurman’s claims against DaimlerChrysler were time barred by the six-month limitations period. The Court paid particular attention to the “read carefully before signing” language, and noted that it was in bold and placed conspicuously directly above Thurman’s signature acknowledging that she read and understood the document. It also found the specific language used was clear and unambiguous.

The advantage of using these types of clauses is that you can limit the duration of potential liabilities. For example, in Ohio employees have 6 years to file discrimination claims (other than age) under R.C. 4112.99. A clause such as the one in Thurman would shorten that time frame from 6 years to 6 months, a dramatic improvement.

“FMLA” is not a magic word

Does an employee have to invoke the letters “F-M-L-A” for an employer to offer it? Or, what if an employer fires an employee who misses work because of an FMLA-qualifying illness for which FMLA-leave was not offered? Has the employer violated the statute?

In Festerman v. County of Wayne (6th Cir. 5/8/15) (h/t: Eric Meyer), a police officer felt chest pains at left work for the emergency room. Five days later, he submitted an incident report, and, a day after that, a doctor’s note that stated, “Patient is advised to limit working hours to 8 hrs/day.”  At no time, however, did the employee specifically request FMLA leave, or invoke the statute for his time off from work.

The 6th Circuit concluded that neither the hospital visit nor the doctor’s note were individually sufficient to place the employer notice that the employee qualified for FMLA leave. However, the court concluded that, presented with the total picture, a fact issue existed as to whether the FMLA covered this employee’s leave.

This Court is confronted with a doctor’s note that expressly discloses a requirement of limiting the employee’s work hours per day, but fails to disclose the condition that gives rise to this requirement or any additional prescribed treatment. Consequently, the doctor’s note submitted by Festerman, in isolation, may not have provided sufficient notice to Wayne County of a qualifying condition under the FMLA. The circumstances surrounding Festerman’s initial qualifying leave, however, provided additional context to the doctor’s note and are evidence that Festerman’s superiors were aware of his potential FMLA-qualifying condition….

Given Wayne County’s knowledge of a serious health-related incident that occurred in the workplace and the doctor’s note which advises that Festerman’s workday should be limited to eight hours per day, a reasonable jury could find that Festerman provided sufficient notice to Wayne County of a FMLA-qualifying serious health condition.

I’ve previously discussed how an employer should handle an employee’s potential or questionable request for leave under the FMLA.

• If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

• If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools  to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

In other words, employers, err on the side of caution. Use the FMLA’s checks and balances. When in doubt, offer conditional FMLA leave, and confirm with the statute’s medical certification process. And, just, as importantly, train your supervisors to recognize a potential FMLA issue so that they do not get in the way of this process working.

WIRTW #367 (the “warped” edition)

In my never-ending quest to retire from law and manage my daughter’s burgeoning music career full-time, I bring you highlights from last weekend’s School of Rock Warped Tour show, with Norah singing lead vocals on “Russian Roulette” by Tsunami Bomb, and playing lead guitar on “Prosthetic Head” by Green Day.

This weekend, you have two chances to catch the SoR Warped Tour band in action. Tomorrow, they will be playing a few songs at the Relay for Life, at Pat Catan Stadium in Strongsville, at 3:30, and Sunday they will reprise the entire show at the Music Box Supper Club at 12:30. Or, if you follow me on Periscope or Twitter, you’ll likely be able to catch a song or two live from the comfort of your iPhone.

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

Discrimination

• Be Smarter than the Average Bear: ADA Accommodations at Camp — via Dan Schwartz’s Connecticut Employment Law Blog
• New Fourth Circuit Standard: Single Incident Sufficient For Title VII Hostile Workplace Harassment Claim — via The Employment Brief
• Can we stop with the age-based stereotypes? — via Robin Shea’s Employment & Labor Insider
• How 2 racial slurs in 24 hours can create a hostile work environment — via Eric Meyer’s The Employer Handbook Blog
• Same-Sex Marriage Bans As Sex Discrimination: The Potential Impact On Plan Sponsors And Employers — via Employment Law Lookout
• Growing Numbers of Americans Report Age Discrimination — via Atlanta Employment Lawyer Blog
• Proposed EEOC Rules Further Complicate Wellness Program Design — via E is for ERISA

Social Media & Workplace Technology

• Infographic: What recruiters really think of your social media photos — via Ragan.com
• A data breach is often an employee problem — via Mike Haberman’s Omega HR Solutions
• Woman fired after disabling work app that tracked her movements 24/7 — via The Verge
• Do Your Apps Violate Employee Privacy? — via Heather Bussing at HR Examiner

HR & Employee Relations

• Deflategate and the power of external investigations — via EntertainHR
• Bill Simmons and ESPN: 5 Times When It's Time to Fire Your Biggest Star — via The HR Capitalist
• Moms Should Be the Most Upset with Piers Morgan’s Paternity Leave Comments — via The Daddy Files
• Stop Punishing the Family Man — via Harvard Business Review
• Jury Awards $2 Million to Nurse for “Defamatory” Report to Board of Nursing — via Minnesota Employment Law Report
• Study: How to best manage millennials — via Ragan.com
• Employee Handbooks: Every Word Counts—A Quick Fix to Your Harassment — via Next Blog
• Providers: Beware of HIPAA and Patient Privacy Rules During Employment Disputes — via Above the Law

Wage & Hour

• The Trouble with Off-the-Clock Work — via Blogging4Jobs
• Courts continue to back employers with strong timekeeping policies, practices — via EmployerLINC
• The next labor fight is over when you work, not how much you make — via Wonkblog
• OSHA Issues Comprehensive Rule to Protect Construction Workers in Confined Spaces — via Joe’s HR and Benefits Blog
• OSHA: Inadequate Penalties, Poor Enforcement — via Workplace Prof Blog
• FMLA and Union Contracts May Be More Than We Bargained For — via The Emplawyerologist

Labor Relations

• Should you settle that pesky NLRB charge? — via HR Hero Line
• Do your confidentiality and nondisclosure agreements violate Federal law? — via Mike Haberman’s Omega HR Solutions
• Make sure your company e-mail policy passes the Purple test — via Technology for HR

NLRB offers some good news for franchisors, or does it?

We are in the middle of class war in America, and your local fast-food restaurant is ground zero. Workers are fighting for higher wages and better working conditions. And, they are getting some help from the federal government.

Last summer, the NLRB Office of General Counsel authorized complaints against 43 different McDonald’s franchises, along with the restaurant’s franchisor, McDonald’s, USA, LLC. In each case, the franchisor did not 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 stands in their shoes, because if a franchisor is a joint employer with its franchisee, the franchisor would share liability for all the franchisee's employment and other sins.

This week, however, we received some news on this front from the same NLRB Office of General Counsel. In Nutritionality, Inc. d/b/a Freshii [pdf], the OGC issued an advice memorandum concluding that the franchisor is not a joint employer with the franchisee.

Nevertheless, it’s not all happy meals for franchisors. The OCG compared two possible legal test for “joint employers,” the Board’s current standard and the “industrial realities” test.

Under the Board’s current standard—

The Board will find that two separate entities are joint employers of a single workforce if they “share or codetermine those matters governing the essential terms and conditions of employment.” To establish such status, a business entity must meaningfully affect matters relating to the employment relationship “such as hiring, firing, discipline, supervision, and direction.” … The Board and the courts have also considered other factors in making a joint employer determination, including an employer’s involvement in decisions relating to wages and compensation, the number of job vacancies to be filled, work hours, the assignment of work and equipment, employment tenure, and an employer’s involvement in the collective bargaining process.

In Nutritionality, however, the OGC lobbied for the NLRB to apply a more liberal “industrial realities” test—

Under that standard, the Board finds joint employer status where, under the totality of the circumstances, including the way the separate entities have structured their commercial relationship, the putative joint employer wields sufficient influence over the working conditions of the other entity’s employees such that meaningful bargaining could not occur in its absence. This approach makes no distinction between direct, indirect and potential control over working conditions and results in a joint employer finding where “industrial realities” make an entity essential for meaningful bargaining.

Ultimately, the OGC concluded that the franchisor failed as a joint employer under either test. Nevertheless, as the NLRB continues litigate against McDonald’s as a “joint employer,” this issue bears monitoring, especially as to the legal standard espoused by the NLRB. If the NLRB ultimately concludes that McDonald’s is a joint employer with its franchisees under a looser, more liberal joint-employer standard, it could be the most significant legal development of the year to come.

[Hat tip: Phil Miles]

NLRB judge strikes down termination based on HIPAA violation

HIPAA. Five letters that strike fear into the heart of anyone that handles employee medical information. That is, anyone except an NLRB judge passing judgment on whether an employer was justified in firing a union-supporting employee for clear HIPAA violations.

In Rocky Mountain Eye Center [pdf], and NLRB administrative law judge was faced with the issue of whether the NLRA protects an employee of a medical practice, Britta Brown, who accessed co-worker medical information in her employer’s Centricity database for the purpose of gathering contact info for a union-organizing campaign. The judge concluded that the employee’s HIPAA violation did not strip her of the Act’s protection.

I find the Respondent’s comingling of employee and patient data in Centricity, along with its training instructions to employees and its practices, detailed above, preclude any legitimate defense that Brown’s accessing the system to obtain employee phone numbers warranted discipline as a HIPAA violation. While the Respondent's general concerns about HIPAA compliance are unquestionably legitimate, the circumstances here lead me to conclude they were seized upon to stop Brown’s union activity.

In other words, because the employer: 1) permitted the co-mingling of non-protected employee contact information with protected patient medical information, regardless of whether the employee was also a patient, and 2) trained (or, at least, acquiesced in) employees using Centricity to access each others’ contact info for work-related reasons, such as scheduling and social events, the employer could not discipline an employee who used the same tools to access the same information for a union-organizing campaign.

HIPAA isn’t the only law that mandates the confidentiality of medical information.

• The ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and be treated as a “confidential medical record.”
• If an employer has genetic information obtained under one of GINA’s limited exceptions, it must also keep this information separate from personnel files and treat it as a confidential medical record.

If you are a medical practice and your employees are also your patients, HIPAA adds a deep layer of complexity to these confidentiality issues. The judge’s decision in Rocky Mountain Eye Center notwithstanding, take these confidentiality requirements seriously, and train your employees on the proper handling of, and access to, confidential medical information. Otherwise, instead of an unfair labor practice charge, you might be facing a lawsuit from an employee relating to a breach of confidentiality.