WIRTW #379 (the “that’s showbiz” edition)

I was supposed to be in New York City today being interviewing for tonight’s episode of 20/20. I would have discussed the workplace implications of Wednesday’s murder of two Virginia journalists by their former co-worker. While I was on my way to the airport yesterday, I received a phone call letting me know that direction of the show changed, and that my segment was bumped. Thank you to the nice people at ABC News who reached out to me. I’ll catch you next time.

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

Discrimination

• Employers: The Threat of Age Discrimination Claims is Real! — via The Emplawyerologist
• When Labeling An Employee “Male” May Not Be Good Enough Anymore — via Dan Schwartz’s Connecticut Employment Law Blog
• Another Federal Circuit Court Rejects Telecommuting as a Reasonable Accommodation — via Minnesota Employer
• ADA accommodations for deaf employees in safety-sensitive positions — via Eric Meyer’s The Employer Handbook Blog
• Can Employees Trust Human Resources? Maybe That’s Not the Right Question? Timing of Reasonable Accommodation Request and Causation under the ADA and the Rehabilitation Act Are Not the Same — via Understanding the Americans with Disabilities Act
• Reversal of Jury Verdict in Religious Discrimination Lawsuit – Divine Intervention or Judicial Mistake? — via Michigan Employment Law Advisor

Social Media & Workplace Technology

• Why the workplace of 2016 could echo Orwell’s 1984 — via The Guardian
• Why You Should Not Check to See if Employees are on Ashley Madison — via Heather Bussing, writing at HR Examiner with John Sumser
• Workplace etiquette after Ashley Madison: 8 tips for dealing with embarrassed colleagues — via Quartz
• Social Media E-Discovery: Are Your Facebook Posts Discoverable in Civil Litigation? — via Socially Aware Blog

HR & Employee Relations

• How to Limit the Damage When You Fire an Employee — via Evil HR Lady, Suzanne Lucas
• Can employees trust Human Resources? — via Robin Shea’s Employment & Labor Insider
• Putting the Human in Human Resources — via Blogging4Jobs
• Game of War executive arrested for allegedly stealing trade secrets — via The Verge
• Why You Should Be a Reluctant Workaholic: The Importance of Taking Vacation — via The Sociable Lawyer Blog
• The Workplace Culture That Flying Nannies Won’t Fix — via The New York Times
• “Ban-the-box” movement making its way across the country — via HR Hero Line

Wage & Hour

• Are Yelp Reviewers “Employees”? — via Workplace Prof Blog
• What Happens When I’m Forced to Go Non-Exempt? — via Evil HR Lady, Suzanne Lucas
• Another FLSA case gets to trial based only on uncorroborated testimony — via Employer Law Report
• DC Circuit Reinstates DOL Rule Applying FLSA’s Minimum Wage and Overtime Provisions to Home Care Workers — via Wyatt Employment Law Report
• Requiring an Employee to Return from FMLA Leave "Without Restrictions" or "Fully Healed" Is Playing with Fire — via Jeff Nowak’s FMLA Insights
• Did Obergefell settle the same-sex marriage issue? — via SCOTUSblog
• OSHA’s New Option for Resolving Whistleblower Complaints: What Employers Need to Know — via OSHA Law Update

Labor Relations

• NLRB case asks who's really the boss of subcontractors’ workers — via Los Angeles Times
• Board Finds That An Employee’s Brief Suspension Violated Labor Law — via Labor Relations Today
• The Face of Unions is Becoming Younger and More Educated — via Matt Austin Labor Law

BREAKING: The shoe has fallen on NLRB’s joint employer decision

While the outcome isn’t necessarily a surprise, the decision nonetheless will be a shock to business’ systems. In a landmark 3-2 decision—Browning-Ferris Industries of California [pdf]—the NLRB has re-written its joint-employer standard.

The common-law definition of an employment relationship establishes the outer limits of a permissible joint-employer standard under the Act. But the Board’s current joint-employer standard is significantly narrower than the common law would permit. The result is that employees covered by the Act may be deprived of their statutory right to bargain effectively over wages, hours, and working conditions, solely because they work pursuant to an arrangement involving two or more employing firms, rather than one. Such an outcome seems clearly at odds with the policies of the Act. …

The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them. …

We will no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but also exercise that authority. Reserved authority to control terms and conditions of employment, even if not exercised, is clearly relevant to the joint-employment inquiry. … Nor will we require that, to be relevant to the joint-employer inquiry, a statutory employer’s control must be exercised directly and immediately. If otherwise sufficient, control exercised indirectly—such as through an intermediary—may establish joint-employer status. 

The Board justifies this expansion of the joint-employer standard by stating that it is good for business and for the hiring of employees:

As the Board’s view of what constitutes joint employment under the Act has narrowed, the diversity of workplace arrangements in today’s economy has significantly expanded. The procurement of employees through staffing and subcontracting arrangements, or contingent employment, has increased steadily…

NLRB, you are not being honest with us. There is nothing good for businesses about this decision. If staffing agencies and franchisors are now equal under the National Labor Relations Act with their customers and franchisees, then we will see the end of staffing agencies and franchises as viable business models. Moreover, do not think for a second that this expansion of joint-employer liability will stop at the NLRB. The Department of Labor recently announced that it is exploring a similar expansion of liability for OSHA violations. And the EEOC is similarly exploring the issue for discrimination liability. I think that Browning-Ferris is a jumping-off point, not an end-point, on this key issue. Stay tuned.

John Oliver takes on LGBT discrimination, and gets it 100% correct

HBO’s last week with John Oliver is fast becoming my favorite “news” show on television. This past week, John took on the issue of LGBT discrimination. In a blistering 14:45, he summed up what I’ve been preaching for years—the time is long past due that it becomes the law of this nation that LGBT discrimination in employment and elsewhere is illegal and cannot be tolerated in a civilized and free society.

Enjoy.

OSHA’s new burden of proof is a big burden for employers

Today, I’m going to talk about burdens of proof, a topic that might seem dry, but is vitally important to employers.

Last month I provided some insight into the 22 different federal statutes that protect whistleblowing employees from retaliation. The Occupational Safety and Health Administration administers the enforcement of each of these statutes’ anti-retaliation provisions. It’s now a whole lot easier for OSHA to enforce these laws against companies alleged of retaliation.

Earlier this year, OSHA published a memorandum entitled, Clarification of the Investigative Standard for OSHA Whistleblower Investigations. This “clarification” is actually a loosening of OSHA’s investigatory standard. Now, all OSHA needs to pursue a retaliation claim against an employer is “reasonable cause to believe that a violation occurred.”

What does “reasonable cause” mean? It means that all OSHA needs to take a whistleblower claim to hearing is a “belief that a reasonable judge could rule in favor of the complainant … that a violation occurred.” This “reasonable cause” finding requires significantly less evidence as would be required at trial to establish unlawful retaliation by the requisite preponderance of the evidence.

If you think of these burdens of proof as scales, the preponderance of the evidence necessary to carry the day at trial is sufficient evidence to tip the scale past the 50/50 mark. OSHA’s new “reasonable cause” standard, however, requires much less than this 50-percent-plus showing, maybe as little as enough to merely nudge the scales in the direction of that halfway point.

As OSHA’s summarizes:

Although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations to find reasonable cause to believe that a violation occurred. Rather, when OSHA believes, after considering all of the evidence gathered during the investigation, that the complainant could succeed in proving a violation, it is appropriate to issue a merit finding under the statutes that provide for litigation before an ALJ….

Needless to say, this loosening of the proof standard has the potential to be significant. Time will tell if if it will increase the number of whistleblower complaints filed by employees. I am confident, however, that under this new standard, employers will be facing more hearings and trials on federal whistleblower claims, and, further, that the stakes in this litigation has increased significantly.

When one act is enough for harassment

To be actionable, the offensiveness of alleged harassment needs to be either pervasive (that is, happening often) or severe (that is, shocking to the system even if observed only once). In Macias v. Southwest Cheese Co. (10th Cir. 8/24/15) [pdf], a federal appellate discussed the difference in the context of a male employee who exposed himself to a female co-worker.

As to the second element concerning the severity or pervasiveness of the conduct, the district court concluded that the … conduct … was neither severe nor pervasive enough because it transpired over twenty months…. His conduct was more than a mere offensive utterance; it was not only physically threatening and humiliating—if true, it was also criminal, see N.M. Stat. Ann. § 30-9-14. The environment was objectively hostile, and Ms. Macias subjectively perceived it to be so, fearing that Mr. Stewart might expose himself to her again or assault her in some way.

Thus, suffice it to say that if an employee exposes himself at work, you have a sexual harassment problem on your hands.

The bigger question from this case, however, isn’t whether actionable sexual harassment occurred, but why this employee kept his job after HR learned about the exposure. Employers, here is your take-away from today’s post. When an employee pulls out his little friend at work, do not hesitate to pull the termination trigger (once you investigate and reasonably confirm that that incident happened). I promise you that the risk from that termination will be far less than the risk from one or more of his co-workers suing you for sexual harassment.

“The devil made me do it” is not a defense to insidious wage-and-hour violations

Late last week, the Department of Labor announced that it had filed a wage-and-hour lawsuit against Akron, Ohio, televangelist Ernest Angley and the for-profit buffet his church operates. The allegations are, to put it mildly, ugly. From Ohio.com:

• Defendants improperly treated certain workers as “volunteers” and paid them no wages. These “volunteers” worked in the buffet restaurant cooking, cleaning, waiting on tables, stocking and maintaining the buffet line, and as cashiers.

• Two dining-room attendants, aged 14 and 15, worked in violation of the restricted hours for minors.

• Defendants paid four managers weekly salaries that were too low to meet the federal minimum wage, currently $7.25 per hour, and did not pay overtime after 40 hours. The employer incorrectly categorized these managers as exempt from minimum wage and overtime requirements of the Fair Labor Standards Act, though they did not meet the criteria. The managers are due a total of $8,684 in back wages for overtime violations.

• Two hundred thirty-nine employees, including four of the managers, did not earn the minimum wage of $7.25 per hour and are due a total of $207,975 in back wages.

Most insidiously, according to an exposé done by the Akron Beacon Journal last October (which served as the genesis for the DOL’s investigation and its the eventual lawsuit), Angley (allegedly) willingly violated the FLSA through the use of unpaid volunteers even after a DOL audit told him otherwise, and, most sinfully of all, required the destruction of time records in an attempt to cover his tracks:

A window into Angley’s labor practices opened in early 1999 after a volunteer worker at the Cathedral Buffet was stabbed to death by another volunteer worker. 

Because the use of volunteers at a for-profit restaurant is prohibited, the U.S. Labor Department investigated. The church agreed that spring to stop the practice.
But the practice has resumed. 

Angelia Oborne, 35, has deep, firsthand knowledge of the finances at the buffet, where she was employed for 20 years. She started by busing tables at the restaurant and worked her way up to management. 

“Before we were audited,” she said, “I was instructed to destroy all the timecards and payroll reports for … other years before that.” 

Oborne also echoed what others have said about time-clock fudging. 

“They told every person … that they were required to clock out at 5 p.m. whether their work was done or not. And if their work was not done, they were to go back to their desk.”

The FLSA permits non-profit organizations to use volunteers to perform work related to the non-profit. If, however, the “volunteer” works in a part of the enterprise that serves a commercial business and serves the public (such as a restaurant or a retail store), those workers are employees, not volunteers, and are the employer is bound the FLSA to pay them minimum wage and overtime.

Seems to me that Angley’s best defense is to cut his losses, pay the $200,000+ in back wages, and start operating his buffet like the for-profit restaurant that it is. I’m very curious to see if common sense or hubris prevails.

And now, this…

WIRTW #378 (the “top chef” edition)

I’ve never used this space to write a restaurant review, until today. While in Germany, my wife and I dined at Zur Tränke, a quaint little restaurant attached to a local riding school. Our friends arranged a special five-course wine tasting dinner, which started with a cold tomato soup with a tomato and olive salad, followed by chicken-liver paté with blackberry jam, a spinach ravioli with shrimp, lamb consummé, grilled lamb with roasted potatoes, and ending with assorted cheeses for dessert, each paired with a different wine. It was one of the best meals I’ve ever eaten.

If you ever find yourself anywhere near Eggenstein-Leopoldshafen, you need to eat at Zur Tränke. You will not be disappointed.

A photo posted by Jon Hyman (@jonhyman) on Aug 14, 2015 at 2:13am PDT

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

Discrimination

• 5 ways employers can spend a lot less time in court — via Robin Shea’s Employment & Labor Insider
• Paid Suspension “Typically” not an “Adverse Employment Action” Under Title VII — via Phil Miles’s Lawffice Space
• What are the business costs of ignoring racial and gender diversity? — via ABA Journal Daily News
• UPS Manager’s Disability Does Not Excuse Perceived Racist Comment — via The Employment Brief
• Court Rejects The EEOC’s Novel Attempt To Impose Disparate Treatment Liability Without Any Injury — via Workplace Class Action Litigation
• Did you know that National Origin discrimination covers American born workers? — via Mike Haberman’s Omega HR Solutions
• Failure to Promote, Failure to Accommodate, Retaliation, and Breach of Confidentiality As ADA Causes of Action — via Understanding the Americans with Disabilities Act (ADA)
• Accommodating Religion: Ignorance Is Not Bliss — via The Labor Dish

Social Media & Workplace Technology

• 2015 ABA Tech Survey shows 60% of attorneys use an iPhone, 40% use an iPad — via iPhone J.D.
• The Internet of Things Has No Clothes – A Defcon 23 Summary — via Augmented Legality
• Risky business: when your subordinate becomes your Facebook ‘friend’ — via Technology for HR
• LinkedIn's Lookup app finds co-workers with the right skills — via Engadget Mobile
• “Yelping” Does Not Entitle You To Minimum Wage — via Wage and Hour Law Update

HR & Employee Relations

• Working at Amazon is Hell. So What? — via Evil HR Lady, Suzanne Lucas
• Unlimited Vacation & Parental Leave – It’s Good to Be In the 1% — via Blogging4Jobs
• Respecting the Rhythm of Work and Family — via Fathers, Work and Family
• Disregarding the Traditional Workweek — via Attorney at Work
• Bathroom Monitor: The Newest HR Pro Title — via The Tim Sackett Project
• Employees Can’t Be Summed Up by a Personality Test — via Harvard Business Review
• 5 Ways The Workplace Needs To Change To Get The Most Out Of Generation Z — via Fast Company

Wage & Hour

• The Nightmare of the Labor Department’s New Overtime Rule — via Evil HR Lady, Suzanne Lucas
• How do you make a wage-and-hour lawsuit go away? — via Eric Meyer’s The Employer Handbook Blog
• When Cancer Strikes: What Happens AFTER You Run Out of Paid Time Off — via Dan Schwartz’s Connecticut Employment Law Blog
• Struggling to accommodate coworkers’ medical leave in a small office — via Ask a Manager
• A Cruise Aboard the Love Boat is Not Protected by the FMLA, Even When the Doc Says It’s a Good Idea — via Jeff Nowak’s FMLA Insights

Labor Relations

• Here comes a NLRB move to unionize temps — via Walter Olson’s Overlawyered
• NLRB Denies McDonald’s Appeal of Motion to Dismiss Joint Employer Claims — via Management Memo
• Eighth Circuit Reverses NLRB Order Requiring Reinstatement of Employee Who Threatened a Co-Worker — via Minnesota Employer

Seize the opportunity to offer accommodations for medical treatments

A Mississippi home healthcare provider has agreed to a $100,000 settlement with the EEOC for a disability-discrimination lawsuit. The EEOC’s press release offers the key facts of the case:

EEOC brought suit on behalf of Kristy Sones, a former Mississippi HomeCare employee, who suffered an epileptic seizure while working at the facility. Returning to work following her seizure, Sones requested an accommodation to help her perform certain job-related computer tasks--tasks she was having difficulty completing because of the temporary side effects of her seizure medication.  The lawsuit alleges that Mississippi HomeCare ignored Sones’ request, failed to engage in an interactive process to discuss reasonable accommodations, and provided no accommodation. Mississippi HomeCare then terminated Sones less than a month after her request for an accommodation.

According to EEOC Birmingham District Director, “We hope this resolution will be a lesson to companies of the importance of engaging in an individualized interactive process to determine whether a disabled employee must be accommodated under the ADA.” This duty to consider reasonable accommodations does not just include an employee’s medical condition, but also any medications an employee is taking to treat that medical condition. Omitting this consideration can have expensive consequences, as this case illustrates.

Another viewpoint on overtime for undocumented work time

In Garcia v. SAR Food of Ohio, an Ohio federal court rejected an employer’s attempt to dismiss an off-the-clock wage-and-hour claim, because, even though the plaintiff had not reported un-clocked as “working time,” a fact issue existed over whether the employer should have known that the employee was nevertheless performing such work without compensation.

Now, an Illinois federal court has considered nearly the identical issue, a reached the opposite result. In Roberts v. Advocate Health Care, a nurse alleged that she had worked between 8 and 12 hours of unpaid overtime each week. Her employer, however, argued that she was responsible for submitting her own timesheets and that it paid her consistent with her own written representations as to how many hours she worked each week.

The federal court rejected the employee’s counter-argument that “she was performing uncompensated overtime work,” and that her supervisor, Magurany, “knew or should have known about that work,” and dismissed this off-the-clock claim.

Magurany supervised between 45 to 50 employees in multiple departments. Roberts contends that when Magurany reviewed employee time cards, she should have noticed that Roberts' time cards did not reflect time spent at the alleged post-shift meetings. This constructive knowledge argument is speculative. It rests on three assumptions: (1) Magurany knew that Roberts was off the clock during the purported post-shift meetings; (2) Magurany knew that Roberts routinely failed to correct her time cards to reflect time spent at those meetings; and (3) when Magurany reviewed Roberts' time cards at a later date, she was able to detect that Roberts' time cards shorted Roberts for time spent at the meetings…. The fact that something is theoretically possible is not enough to create a triable issue of fact….

This is especially true given that Advocate had multiple mechanisms by which employees could correct their time. Roberts used these mechanisms on multiple other occasions….

Moreover, Roberts never provided actual notice by complaining to Magurany or any other supervisor about any of the unpaid overtime she now claims that she worked….

How does an employer reconcile Garcia and Roberts within its own pay practices? The short answer is that you don’t. Different courts often reach different results on similar issues, and, until higher courts pass judgment, the issue remains unsettled. For now, if you are in Northern Ohio, Garcia is your controlling precedent and you need to pay if you know, or should know, of the undocumented work time. If you want to take a more aggressive stance and challenge the issue, you have Roberts on which to hang your hat. That challenge, however, will raise the issue of whether you are committing a willful violation of the FLSA (with its longer statute of limitations and liquidated damages) by intentionally withholding pay from an employee you know has performed work. The safer course of action is the Garcia holding, which is the path down which I would guide you.

NLRB, college athletes, and the case that doesn’t really matter

Yesterday, the NLRB closed its book on the attempt of Northwestern University’s scholarship football players to unionize, not with a thud but with a whimper. The NLRB unanimously passed on the issue of whether college athletes are “employees”, and instead held that the NLRB lacked jurisdiction to consider the petition because the inherent nature of college sports is antithetical to the purposes served by the NLRA:

[W]e have determined that, even if the scholarship players were statutory employees (which, again, is an issue we do not decide), it would not effectuate the policies of the Act to assert jurisdiction. Our decision is primarily premised on a finding that, because of the nature of sports leagues (namely the control exercised by the leagues over the individual teams) and the composition and structure of FBS football (in which the overwhelming majority of competitors are public colleges and universities over which the Board cannot assert jurisdiction), it would not promote stability in labor relations to assert jurisdiction in this case.

The Board has never asserted jurisdiction, or even been asked to assert jurisdiction, in a case involving scholarship football players or similarly situated individuals, and … we decline to do so in this case. Processing a petition for the scholarship players at this single institution under the circumstances presented here would not promote stability in labor relations. Moreover, recent changes, as well as calls for additional reforms, suggest that the situation of scholarship players may well change in the near future. For these reasons…, even if the scholarship players were statutory employees (which the Board does not here decide), we have concluded that it will not effectuate the policies of the Act to assert jurisdiction in this case.

What does this case mean? Frankly, very little. It’s a huge story because the implications of an opposite ruling would have irreparably changed the nature of college sports. As it stands, the case maintains the status quo, without ruling on the key issue of private-college-athletes-as-employees. Thus, while this opinion has garnered tons of news coverage (Wall Street Journal, New York Times, ESPN), at the end of the day, its just not that big of a deal.

What’s next on the issue of “employee” at the NLRB? The McDonald’s case, which almost certainly will decide whether a franchisor is a (joint-)employer of its franchisee’s employee, and will likely be (one of the) biggest cases of 2015.

You can download a pdf of the Northwestern University opinion here.

12 things I learned on my summer vacation

I spent the last two weeks in Europe. Germany to be exact, and to be more precise, Eggenstein-Leopoldshafen, with jaunts to Paris and Munich. It was a dream holiday, spent visiting, and touring with, our German daughter (an exchange student who lived with us two years ago) and her family. With 16 days of vacation behind me, here is what I learned:

1. I have very resilient kids. We walked, a lot. According to my iPhone health app, we walked between 8 and 12 miles per day. And my kiddos (ages 7 and 9) went along for the ride, with very few complaints, all things considered.

A photo posted by Jon Hyman (@jonhyman) on Aug 12, 2015 at 10:56am PDT

2. I know the answer to the question, “How many steps does that church tower have?” We climbed Sacré Coeur in Paris, Notre Dame in Strasbourg, St. Peter in Munich, and the Perlach Tower in Augsburg, and each has 300 steps (give or take). A few pointers. Yes, the views are worth it, always. And, if the bell tower happens to be a working bell tower, the bells are loud (especially, as was the case in Augsburg, when you summit at high noon).

3. Europe is basically one big pastry shop. If it wasn’t for the fact that Europeans walk everywhere (see #1), they’d all weigh 400 pounds from the immense amount of carbs they consume in pastry form. Then again, when those pastries are les macarons at Ladurée on the Champs-Élysées, you don’t really care.

A photo posted by Jon Hyman (@jonhyman) on Aug 7, 2015 at 7:24am PDT

4. Every restaurant should be equipped with a playground. And I’m not talking about a McDonald’s playland, but a bona fide playground that will genuinely entertain the kids while the adults enjoy their meals. Such was the case at the biergarten we visited outside of Munich with our hosts’ family and friends. Also, the world would be a better place if we more often embraced the notion that the language of play is universal.

5. The Eiffel Tower is always beautiful. Yes, it’s touristy. And, yes, it’s magnificent, at day or at night, from the top, from the bottom, or from a distance.

A photo posted by Jon Hyman (@jonhyman) on Aug 5, 2015 at 11:22am PDT

6. The best part of vacations often are unplanned. Whether it’s an expected drive through an Austrian Alps lake, an impromptu classical music dance party in a Munich garden, or a photo-bomb that wasn’t meant to be videoed in slo-mo.

A video posted by Jon Hyman (@jonhyman) on Aug 10, 2015 at 2:02pm PDT

7. German beer is awesome. In this case, bigger really is better.

8. German BBQ is the real deal. One half of our hosts, Michael, loves to cook American barbecue. And he can slow-cook some damn fine fall-off-the-bone ribs. I had to travel all the way to Germany for some of the best barbecue I’ve ever had. Yes, we also ate schnitzel and sausages, and, yes, it was awesome too.

9. Europe is easy to navigate, even if you only speak English. Yet, by the end of our fortnight I had gained enough confidence to navigate shops and the grocery store on my own, more or less in German. Also, we found the Parisians to be extremely patient with our French and English, as long as you started with a “bonjour” and showed an effort. My daughter, on the other hand, was more than happy to show off her 4 years of French by ordering food in restaurants, asking for help, and even making confession at Notre Dame, all en français. Quick tip: If you’re driving in Germany, “Ausfahrt” means “exit”; it’s not the most popular city name in Germany.

10. Fast is fast, no matter where you are. I love the no-speed-limit German autobahn, and the 190 mph TGV we took to Paris. Very cool to travel that fast on land.

11. Gracious hosts and good friends make everything better. I was so worried that our European vacation could not live up to the hype I had built up in my brain. I’m happy to report it blew the roof off the expectations. I was sad to leave Germany after an awesome two weeks, and could have stayed much longer. Thanks Michael Jung, Karin Jung, Alexa Jung, and, of course, our German daughter, Zarah Jung, for being amazing hosts and tour guides. While all of the experiences, sights, touring, and eating were great, the best part of the trip was getting to know the rest of the Jungs better. Thanks again for everything. We will miss you, and we can’t wait for our next adventure.

12. Employees need vacations. I’ve always been a strong believer in vacations. The past two weeks convinced me of their need for all employees. I will return to work recharged and rejuvenated. You should encourage your employees to take vacations and do the same. How do you accomplish this goal?

• Make a meaningful vacation benefit available for all employees.
• Do not permit employees to roll-over unused vacation days. This benefit, should be use-it-or-lose-it. Otherwise, you risk employees not using it on an annual basis.
• Allow employees to disconnect while on vacation. A vacation will not achieve its therapeutic goal if employees are required to check in via email or participate in conference calls. If your workplace is not sufficiently cross trained, and your employees are not team players, to permit this level of disconnection, then you have bigger problems you need to address.
• Set an example from the top. How many of your executives and managers say, “I haven’t taken a real vacation in two years.”? If this is the case, you need to take a step back, relax, and book some bona fide time off, ASAP.

WIRTW #377 (the “…all I ever wanted” edition)

According to Nielsen Consumer Research, over the past year 52% of people did not take all their paid vacation days, leaving an average of 7.2 days unused. Why aren’t these “work martyrs” using vacation time? According to The Project: Time Off Coalition:

• 40% fear the mountain of work they’ll face when they return to work.
• 35% believe they are the only ones who can do their jobs.
• 25% do not want to risk losing their jobs or fear being seen as replaceable while on vacation.

Readers, I will not be one of those people. Today’s post in the last you’ll read until I return from my German holiday on August 17. I will be, more or less, off the grid enjoying my time off. I’ll try not to over-share vacation stories and pictures when I return.

---

In the meantime, the ABA Journal has opened nominations for this year’s Blawg 100, which has honored me with inclusion for the past five years. If you’ve enjoyed what you’ve read at my blawg (or others), click here and nominate. I’ve already submitted my nominations, as the Labor & Employment Blawgosphere has a wealth of worthy blawgs from which to choose. The nomination deadline is August 16.

Also worth mentioning is The Expert Institute’s Best Legal Blog Contest, which is also soliciting nominations for legal blogs across seven different categories, including Labor and Employment. Nomination close August 21.

---

Until August 17, Auf Wiedersehen.

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

Discrimination

• Discrimination v. Reality — via Heather Bussing at HR Examiner with John Sumser
• 7 Myths About the Americans With Disabilities Act — via Inc.
• The Americans with Disabilities Act at 25 — via Walter Olson’s Overlawyered
• ADA at 25 — via Understanding the Americans with Disability Act
• The Limits To Accommodating Mental Illness In The Workplace — via Eric Meyer’s The Employer Handbook Blog
• Employment law autopsy: “Old fart” gets fired — via Robin Shea’s Employment & Labor Insider
• Retaliation claims can sink an employer — via EmployerLINC
• Class-y Look: Abercrombie’s Look Policy Under Attack … Again — via All in a Day’s Work
• Is Your Paternity Leave Policy Discriminatory? — via Employment Discrimination Report

Social Media & Workplace Technology

• The Internet of Things That Eavesdrop and Invade Privacy — via Augmented Legality
• 6th Cir.: No Reasonable Expectation of Privacy in “Pocket-Dial” — via Phil Miles’s Lawffice Space
• Mötley Crüe frontman settles suit over Facebook password — via ABA Journal Daily News
• One Answer to Company Data Breaches: Better Employee Engagement — via TLNT
• Don’t Ignore YouTube When Marketing Your Law Firm Online — via Technologist

HR & Employee Relations

• When Your Model Employee Isn’t Anymore — via Dan Schwartz’s Connecticut Employment Law Blog
• On Tom Brady and Getting Caught Breaking a Rule at Work…— via The HR Capitalist, Kris Dunn
• “It’s not me, it’s you!” Seinfeld lessons on candid employee evaluations — via EntertainHR
• Finding a Perfect Work-Life Balance Is Impossible, and That’s Okay — via Lifehacker
• 7 Tips for Investigating Workplace Complaints — via In House
• Is Employee “Free Speech” A Constitutional Right? — via Minnesota Employer
• How Obama Could Make a Little Box on Job Applications a Very Big Deal — via Lindsay Blakely at Inc.

Wage & Hour

• Checking Your Email at Home Isn’t Exactly What I Would Call “Working” — via TLNT
• A Beginner’s Guide to Your Company’s Employee Stock Plans — via Lifehacker
• Can Au Pairs Legally Be Paid Less Than $5 An Hour? — via Workplace Fairness
• Can Employers Offer Compensatory Time to Exempt Employees? — via Wage & Hour Insights
• Can Au Pairs Legally Be Paid Less Than $5 An Hour? — via Workplace Fairness

Labor Relations

• Think Salaries Are Confidential? Google Found Out They Aren’t — via Evil HR Lady, Suzanne Lucas
• Lessons We Learned In Winning A Union Election Under the NLRB’s New Rules — via Hunton Employment & Labor Law Perspectives™
• Will Labor Issues Figure Prominently in the 2016 Campaign Season? — via Labor Relations Institute
• Effects of NLRB’s Adoption of “Quickie Election” Rules — via The National Law Review
• Washington Court Dismisses Challenge to NLRB’s Ambush Election Rules — via Management Memo
• NLRB Removes Blanket Exemption on Mandatory Disclosure for Witness Statements. What’s an Employer To Do? — via Employment Matters Blog

Even lone-wolf activity is concerted, according to NLRB

Bonus post today.

We know that the National Labor Relations Act protects employees who engage in protected concerted activity from retaliation. How broadly defined is concerted? According to 200 East 81st Restaurant Corp. [pdf], decided yesterday by the NLRB, concerted is defined pretty broadly.

The issue in 200 East 81st Restaurant Corp. was whether a single employee who files a lawsuit, ostensibly on behalf of himself and other employees, engages in protected concerted activity. The Board answered the question in the affirmative, holding that a lone plaintiff can engage in protected concerted activity via the filing of a lawsuit in which the employees seeks to vindicate the rights of his co-workers:

“By definition, such an action is predicated on a statute that grants rights to the employee’s coworkers, and it seeks to make the employee the representative of his colleagues for the purpose of asserting their claims, in addition to his own. Plainly, the filing of the action contemplates—and may well lead to—active or effective group participation by employees in the suit, whether by opting in, by not opting out, or by otherwise permitting the individual employee to serve as a representative of his coworkers….” (Quoting Murphy Oil USA, Inc. [pdf]).

Specifically, we hold that the filing of an employment-related class or collective action by an individual employee is an attempt to initiate, to induce, or to prepare for group action and is therefore conduct protected by Section 7.

Thus, as long as the intent of the lone-wolf employee is to “initiate, induce, or prepare for group action,” the lone-wolf action is concerted under Section 7.

This case has implications beyond a wage-and-hour collective action. Consider, for example, a lone employee who seeks injunctive relief in court for some work-related issue. Or, perhaps more practically, consider an employee who takes to his or her social network of choice to grip about work, yet receives no comments or replies from co-workers. Under the (il)logic of 200 East 81st Restaurant Corp., if the employee’s social-media posts are for the purpose of initiating, inducing, or preparing for group action, they are protected.

Since social media is, well, social, one could argue that any post written on social media has a group component. After all, Facebook, Twitter, etc., aren’t diaries or self-conversations. They are intended dialogues within one’s network, or with the public at-large. Thus, has 200 East 81st Restaurant Corp. killed any argument against a finding of concerted activity on social media? A fair reading of this case would lead one to that unfortunate conclusion.

You need to pay employees if you know, or should know, they are working overtime

Consider Garcia v. SAR Food of Ohio (N.D. Ohio 7/6/15) a cautionary tale.

SAR owns and operates food-court Japanese restaurants. The court previously certified a state-wide collective action for employees who were not paid for post-shift overtime. The named plaintiffs alleged that they were often required to stay past the scheduled end of their shifts, without compensation, to clean or serve expected waves of potential customers. SAR argued that the claims could not proceed because it maintains a policy that requires employees to check their weekly time records, manually enter any changes, and sign off on the records as correct. If the employees had followed that procedure, SAR argued, they would have been paid for all overtime. Indeed, as the court noted, many employees admitted that when they followed this procedure, SAR paid them for the time worked beyond their scheduled shift.

Nevertheless, the district court refused to dismiss the claims, concluding, “Although Plaintiffs did not follow established procedures that allowed Plaintiffs to claim added overtime pay, genuine issues of material fact remain as to whether Defendant SAR Food nonetheless knew or should have known that Plaintiffs were not being properly paid for all hours worked.” In explaining its rationale, the court quoted from the FLSA’s regulations:

[I]t is the duty of management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so.

Employers, you cannot turn a blind eye to your working employees. If you know, or should know, that employees are working “off-the-clock,” or otherwise working without compensation, you must pay them. Your remedy is disciplining the employees for performing unauthorized work, or otherwise not following your procedures for reporting working time or scheduling overtime. As this case illustrates, if you fail to pay under these circumstances, you are taking a huge wage-and-hour risk.

Retaliation alphabet-soup

Employers typically think of retaliation in terms of the big employment statutes: Title VII, the ADEA, the ADA, the FMLA, and the FLSA. Yet, there exist dozens of federal statutes that protect employees from retaliation in a variety of federally regulated industries.

Indeed, just yesterday, Cleveland.com reported that Abdul-Malik Ali, the former head of airfield maintenance at Cleveland Hopkins International Airport, filed a complaint with the Department of Labor against Hopkins and the City of Cleveland, alleging they unfairly demoted him for blowing the whistle on Hopkins for having fewer than the required number of workers on runways last winter.

Ali says that on Feb. 19, the day after he told FAA inspector Michael Stephens about  understaffing, he was removed from his 15-year post as manager of field maintenance by Airport Director Ricky Smith.

Ali said he was transferred to the job of “assistant to the deputy commissioner,” instructed to clear out his office, moved to what he called a “mop closet” behind the cab booking stand on the terminal baggage level at Hopkins and given “make-work” assignments such as counting trashcans.

If true, I’d say the airport has issues. It also makes me feel less that good about flights we took last winter.

Employers that operate in a federally regulated industry need to be aware of the alphabet-soup of statutes that could give rise to a potential retaliation or whistleblowing claim. Thankfully, the Department of Labor provides a list, handily collated at (where else?) http://www.whistleblowers.gov/:

• Affordable Care Act: Protects employees who report violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual's receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer's failure to rebate a portion of an excess premium

• Asbestos Hazard Emergency Response Act: Protects employees who report violations of the law relating to asbestos in public or private non-profit elementary and secondary school systems

• Clean Air Act: Prohibits retaliation against any employee who reports violations regarding air emissions from area, stationary, and mobile sources

• Comprehensive Environmental Response Compensation and Liability Act: Prohibits retaliation against any employee who reports alleged violations relating to cleanup of hazardous waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants

• Consumer Financial Protection Act: Employees are protected for blowing the whistle on reasonably perceived violations of any provision of the Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any other provision of law that is subject to the jurisdiction of the Bureau of Consumer Financial, Protection, or any rule, order, standard, or prohibition prescribed by the Bureau

• Consumer Product Safety Improvement Act: Protects employees of of consumer product manufacturers, importers, distributors, retailers, and private labelers who report to their employer, the federal government, or a state attorney general reasonably perceived violations of any statute or regulation within the jurisdiction of the Consumer Safety Product Safety Commission

• Energy Reorganization Act of 1974: Prohibits retaliation against any employee who reports violations or refuses to engage in violations of the ERA or the Atomic Energy Act. Protected employees include employees of operators, contractors and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission, and employees of contractors working with the Department of Energy under a contract pursuant to the Atomic Energy Act

• FDA Food Safety Modernization Act: Protects employees of food manufacturers, distributors, packers, and transporters from reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act, and employees who refuse to participate in a practice that violates the Act

• Federal Railroad Safety Act: Protects employees of railroad carriers and their contractors and subcontractors who report a hazardous safety or security condition, a violation of any federal law or regulation relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety, in addition to employees who refuse to work when confronted by a hazardous safety or security condition

• Federal Water Pollution Control Act: Prohibits retaliation against any employee who reports alleged violations relating to discharge of pollutants into water

• International Safe Container Act: Protects employees involved in international shipping who report to the Coast Guard the existence of an unsafe intermodal cargo container or another violation of the Act

• Moving Ahead for Progress in the 21st Century Act: Prohibits retaliation by motor vehicle manufacturers, part suppliers, and dealerships against employees for providing information to the employer or the U.S. Department of Transportation about motor vehicle defects, noncompliance, or violations of the notification or reporting requirements enforced by the National Highway Traffic Safety Administration or for engaging in related protected activities

• National Transit Systems Security Act: Protects transit employees who report a hazardous safety or security condition, a violation of any federal law relating to public transportation agency safety, or the abuse of federal grants or other public funds appropriated for public transportation, and also protects public transit employees who refuse to work when confronted by a hazardous safety or security condition or refuse to violate a federal law related to public transportation safety

• Occupational Safety and Health Act of 1970: Protects employees who exercise a variety of rights guaranteed under the Act, such as filing a safety and health complaint with OSHA, participating in an inspection, etc.

• Pipeline Safety Improvement Act: Protects employees who report violations of federal laws related to pipeline safety and security or who refuse to violate such laws

• Safe Drinking Water Act: Prohibits retaliation against any employee who reports alleged violations relating to any waters actually or potentially designated for drinking

• Sarbanes-Oxley Act of 2002: Protects employees of certain companies who report alleged mail, wire, bank or securities fraud; violations of the SEC rules and regulations; or violation of federal laws related to fraud against shareholders. The Act covers employees of publicly traded companies and their subsidiaries, as well as employees of nationally-recognized statistical rating organizations

• Seaman’s Protection Act: Protects employees who report to the Coast Guard or another federal agency a violation of a maritime safety law or regulation, and also seamen who refuse to work when they reasonably believe an assigned task would result in serious injury or impairment of health to themselves, other seamen, or the public

• Solid Waste Disposal Act: Prohibits retaliation against any employee who reports alleged violations relating to the disposal of solid and hazardous waste (including medical waste) at active and future facilities

• Surface Mining Control and Reclamation Act: Protects truck drivers and other employees who refuse to violate regulations related to the safety of commercial motor vehicles or who report violations of those regulations

• Toxic Substances Control Act: Prohibits retaliation against any employee who reports alleged violations relating to industrial chemicals produced or imported into the United States

• Wendell H. Ford Aviation Investment and Reform Act of the 21st Century: Protects employees of air carriers and contractors and subcontractors of air carriers who, among other things, report violations of laws related to aviation safety

The unintended and unfortunate consequence of wage-and-hour reforms

Wage-and-hour reforms are all the rage. Yet, with reform comes a potential unforeseen price—businesses that simply cannot afford to stay in business.

From Re/Code:

Cleaning services company Homejoy is shutting down on July 31 after struggling to raise a big enough round of funding. The company had already been facing growth and revenue challenges, but CEO Adora Cheung said the “deciding factor” was the four lawsuits it was fighting over whether its workers should be classified as employees or contractors. None of them were class actions yet, but they made fundraising that much harder.

Re-classifying workers as employees instead of independent contractors, raising the salary threshold so that fewer employees qualify as exempt from overtime, and increasing the minimum wage are all popular causes for employee groups to rally behind. Yet, if these reforms leave employees without jobs, was the cause worth fighting? I bet if you ask Homejoy’s soon-to-be-ex-cleaners, each would tell you they’d prefer to be paid as a independent contractor than not paid at all.

Happy birthday ADA

Yesterday, the Americans with Disabilities Act turned 25 years old. We've come a long way in the past 25 years, from a statute intended to open employment access to those with disabilities, to decades of judicial decisions that effectively closed that access, to a revised statute that has swung the pendulum so far the other way that it is now hard to envision a medical condition not covered.

The ADA's workplace focus now squarely rests on the issue of accommodation. For this reason, the law's next 25 years will be greatly impacted by technology. As technology makes our lives easier, it makes employers' jobs in accommodating disabilities more complex. And, as technologies change over time, these issues will only become more complex. Biotechnology, for example, iillustration of this tension.

So, happy birthday, ADA.

WIRTW #376 (the “…I’ll only disappoint you…” edition)

I thought I’d try something different today by bringing you a musician I’ve recently discovered—Courtney Barnett.

She’s a guitar playing, Australian, singer-songwriter, whose songs mix crunchy, grungy guitar riffs with catchy lyrical turns of phrases about otherwise mundane topics of everyday life such as house hunting (DePreston) and organic foods (Dead Fox). Oh, and she absolutely rocks. Need proof? Here she is performing “Dead Fox” in Minneapolis / St. Paul last month.

And, here’s her full set from this year’s Bonnaroo, which I am told by those who saw it live that it stole the entire festival.

The death of rock music is great exaggerated; you just need to look a little harder for it these days.

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

Discrimination

• EEOC: Let Us Imagineer ENDA For You — via Cato Daily Podcast
• Are ride-hailing businesses Uber and Lyft ADA-compliant? Massachusetts AG has questions — via ABA Journal Daily News
• Working for you supervisor may be stressful but it is not a disability — via Mike Haberman’s Omega HR Solutions
• Why the EEOC’s rebuke of sexual-orientation bias may barely affect your workplace. — via Eric Meyer’s The Employer Handbook Blog
• 4th Cir. uses “hybrid” test for Title VII joint employer liability — via Phil Miles’s Lawffice Space
• Donald Trump will win (a Title VII lawsuit) — via EntertainHR
• 25 Years Later: Has ADA Helped Employees with Disabilities? — via Families and Work Institute Blog
• Don’t ignore these e-mails! EEOC ramps up digital charge system — via HR Hero Line
• Oy Vey! No Religious Discrimination in Jewish Nurse’s Termination — via Michigan Employment Law Advisor

Social Media & Workplace Technology

• Employees’ “low-tech” sloppiness causes high-tech problems — via Robin Shea’s Employment & Labor Insider
• Ten Top Ways To Stop Employees From Surfing The Internet — via Evil Skippy at Work
• Using Social Media Without Jeopardizing Your Career — via Harvard Business Review
• Five Technology, Media, and Telecommunications Developments Important to Employers — via Technology Company Counselor

HR & Employee Relations

• Overworked Employees Are Tearing Your Company Apart — via Blogging4Jobs
• Americans are the most pointlessly overworked people in the world — via The Week
• Congratulations, your 9-to-5 Job Is Officially 24/7 — via Workplace Diva
• Surveys Show Millennials Seeking Out-of-Office Options — via Workforce
• Look out, Generation Z is about to enter your workplace — via The Telegraph
• If You’re Pregnant, Make Sure Your Doctor’s Note Includes These Things — via Lifehacker
• Real Men Take Paternity Leave — via Fathers, Work and Family
• Fewer Employers Asking Candidates to Divulge Criminal History — via employeescreenIQ Blog

Wage & Hour

• Apple hit with class-action lawsuit over bag searches ordered on its store employees — via TiPb
• “Joy” is Lost, Others Are “Uber” Upset — via All in a Day’s Work
• Homejoy shuts down after battling worker classification lawsuits — via The Verge
• Obergefell v. Hodges — How Much Does It Really Change for Employers?? — via The Emplawyerologist
• Determining What is Considered a Serious Medical Health Condition — via ERC Insights Blog

Labor Relations

• If You Can’t Beat ‘Em, Join ‘Em: SEIU Befriending Franchisees — via Matt Austin Labor Law
• Calm Down: SCOTUS’s “Friedrichs” Case Won't Mean the End of the American Labor Movement — via Workplace Fairness

Does smoke always equal fire in harassment cases?

Consider the following, taken from Briggs v. University of Detroit-Mercy (E.D. Mich. 5/27/14), and then let’s talk.

Plaintiff Carlos Briggs, former assistant coach of the University of Detroit Mercy (UDM) men’s basketball team, complains that his former boss’s boss, UDM’s athletic director (Defendant Keri Gaither), accompanied the team on road trips to engage in a sexual relationship with one of Plaintiff’s fellow assistant coaches, and that consequently, Gaither granted preferential treatment to her paramour to Plaintiff’s detriment. She later admitted the relationship with the other assistant coach, and both were fired. Plaintiff alleges that the relationship created an openly sexually-charged atmosphere … thus creating a distasteful work environment. 

Plaintiff[’s] complaint suggests that his repeated exposure to such salacious and offensive conduct just must give rise to some type of Title VII discrimination charge—Plaintiff argues what amounts to “where there’s smoke there’s fire.” That argument turns out to be a fallacious one, however: affirming the consequent. Fire can indeed cause smoke, but sometimes there is nothing more than smoke, or it is from a different source. Here, the relationship between Gaither and Plaintiff’s co-assistant coach, Derek Thomas, may well have given rise to an unprofessional and unpleasant environment, but it does not give rise to a recognized cause of action.

I’ve been trying to think of the right way to approach the Bill Cosby case from a workplace perspective. To date, 47 women have accused Cosby of drugging and raping them. Cosby has largely remained silent on the issue, even in the wake of the recent publication of a decade-old deposition in which he admitted that he obtained drugs with the intent of giving them to women with whom he wanted to have sex.

The allegations against Cosby are too old for Cosby to face any civil or criminal liability. But, in the court of public opinion, he is guilty. There is simply too much smoke surrounding this fire for any rational person to reach any other conclusion.

What should you do in your workplace upon the receipt of a harassment complaint? Should you:

1. Take solace in the Briggs decision and fall back on a smoke-and-fire defense? 
2. Presume that smoke alwasys equals fire and act according? Or, 
3. Adopt a middle ground investigate-then-act approach? 

If you chose number 3, you chose wisely. Here is what you should do.

1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.

It shouldn’t be newsworthy when a court applies “common sense” to resolve a dispute

I’d like to think that after 8-plus years of blogging, I’ve banked some capital as one who offers a common-sense approach to the often crazy world of labor and employment law. It’s refreshing to read a judicial opinion that toes the same line.

Southern New England Telephone Co. v. NLRB (D.C. Cir. 7/10/15) is an appeal of an NLRB decision that held that an employer unlawfully disciplined employees for wearing union-created t-shirts that read“Inmate #” and “Prisoner of AT$T”. The court concluded that the employer’s interest in protecting its public image and managing customer relations trumped any arguable section 7 rights enjoyed by the employees in the shirts.

Common sense sometimes matters in resolving legal disputes. This case is a good example. AT&T Connecticut banned employees who interact with customers or work in public — including employees who enter customers’ homes — from wearing union shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. Seems reasonable. No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.” But the NLRB ruled in a 2-1 decision that AT&T committed an unfair labor practice by barring its employees from wearing those shirts. Section 7 of the National Labor Relations Act protects the right of employees to wear union apparel at work. But under this Court’s precedent and Board decisions, there is a “special circumstances” exception to that general rule: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image. Put simply, it was reasonable for AT&T to believe that the “Inmate/Prisoner” shirts may harm AT&T’s relationship with its customers or its public image. Therefore, AT&T lawfully prohibited its employees here from wearing the shirt.

Bravo D.C. Circuit. Here’s to more “common sense” approaches to labor and employment disputes.