Is anyone still using unpaid interns?

I’ve cautioning about the use of unpaid interns almost as long as this blog as been a blog (here, here, and here, for example). Last week, the 11th Circuit, in Schumann v. Collier Anesthesia [pdf], became the third federal appellate court to cast aside the DOL’s six-factor internship analysis for a stricter “primary beneficiary” test (joining the 6th Circuit and 2nd Circuit).

In Schumann, the court questioned the employer’s use of unpaid student registered nurse anesthetists participating in a clinic program as part of their master’s degree curriculum. The court agreed with the 2nd Circuit that the DOL’s six-factor internship analysis is antiquated, instead balancing, via the following factors, who received the primary benefit of the relationship—the employer (in which case the intern is an employee who must be paid) or the employee (in which case the internship can be unpaid):

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Notably, the Schumann court noted that the internship analysis is not necessarily all-or-nothing, and that one can be a bona fide intern for part of the engagement, but an employee for others:

That is, we can envision a scenario where a portion of the student’s efforts constitute a bona fide internship that primarily benefits the student, but the employer also takes unfair advantage of the student’s need to complete the internship by making continuation of the internship implicitly or explicitly contingent on the student’s performance of tasks or his working of hours well beyond the bounds of what could fairly be expected to be a part of the internship. For example, in the context of an internship required for an academic degree and professional licensure and certification in a medical field, consider an employer who requires an intern to paint the employer’s house in order for the student to complete an internship of which the student was otherwise the primary beneficiary. Under those circumstances, the student would not constitute an “employee” for work performed within the legitimate confines of the internship but could qualify as an “employee” for all hours expended in painting the house, a task so far beyond the pale of the contemplated internship that it clearly did not serve to further the goals of the internship.

Ultimately, the court took no position on whether these student nurses were (or were not) employees, instead sending the case back to the district court to make the necessary factual determinations under the primary beneficiary test. Assuming this case is not settled, this case will be very interesting to watch on remand, as the relationship in Schumann is much closer to the traditional unpaid internship—training in exchange for school credit as part of an educational curriculum. A judgment for the interns in this case would be pretty darn close to the final coffin nail for unpaid internships.

While we watch this case, employers should continue to assume that non-student interns are paid employees, and should consult with counsel on whether student interns should be paid.

Time off for religious holidays

Today is Rosh Hashanah, the Jewish New Year, which means that many Jewish employees are taking the day off. Is an employer obligated, however, to grant a request for time off when requested for a religious observance?

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer’s business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee’s duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical or other reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

WIRTW #381 (the “sensational inspirational celebrational” edition)

The Muppets present, 5 People You’ll Meet At Work.

 

Which one are you?

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

Discrimination

• Judge Titus Channels Inner Kenny Rogers in $1 Million EEOC Rebuke — via Employee Screen IQ
• Firing an employee for complaining on Facebook about discrimination = retaliation — via Eric Meyer's The Employer Handbook Blog
• Workplace religious accommodation, cont’d — via Walter Olson's Overlawyered
• Yes, employers may have to accommodate even “crazy” religious beliefs. — via Robin Shea's Employment & Labor Insider
• Be careful what you ask on pre-employment tests to avoid a multimillion dollar EEOC action — via Employer Law Report

Social Media & Workplace Technology

• Employee Shows Genitals to Co-Workers: Litigation Follows — via All in a Day’s Work
• Tool or distraction? Examining pros, cons of tech at work — via Technology for HR
• 7 ways to make internal comments work for you — via Ragan.com
• Future Friday: The world of work and the Internet of Things — via Next Blog

HR & Employee Relations

• Tom Brady Fallout—When Employees Win — via Employment Discrimination Report
• The Challenges Of Identifying Potential Workplace Violence — via NPR
• Eight Years Later: Three Big Changes in Employment Law — via Dan Schwartz's Connecticut Employment Law Blog
• 5 Ways To Make Yourself a Target Via Your Hiring Decisions — via The HR Capitalist, Kris Dunn
• Handbook Apocalypse! — via HR Professionals Magazine

Wage & Hour

• Is Amazon the Scapegoat in the Debate on Employee Leave Entitlements? What's the Lesson Here for Employers? — via Jeff Nowak's FMLA Insights
• Northeast Ohio Businesses Are Adjusting to the Changing Workplace, ERC Survey Finds — via ERC Insights Blog
• Is the Nine to Five Dying? — via Workplace Insights

Labor Relations

• NLRB Provides Newly-Certified Unions with Roadmap for Bringing Unfair Labor Practice Charges — via Matt Austin Labor Law
• DOL Pimping Unions — via Labor Relations Institute 
• Why women may be the new face of labor unions — via CBS News
• Get Ready for Even Quicker ‘Quickie’ Elections—NLRB Abandons Requirement for Signed Authorization Cards — via LE Blog

BMW settles EEOC background-check lawsuit for a cool $1.6 mil

Last month, a South Carolina federal judge denied BMW’s attempt to dismiss an EEOC lawsuit which alleged that the company’s criminal background checks for job applicants had a discriminatory disparate impact on African American (opinion here).

In the wake of that decision and looming trial date at the end of this month, BWM and the EEOC have agreed to settle their differences. In exchange for the EEOC’s dismissal of its lawsuit, BMW will pay $1.6 million, and offer employment to 56 of the claimants and up to an additional 90 other African-American applicants identified by the EEOC.

Interesting, Judy Greenwald, at Business Insurance, quotes both BMW and the EEOC, each of which holds a very different opinion on what this settlement has to say about an employer’s use of criminal background checks:

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.”

At the end of the day, the resolution of this case has very little to do with the legality of criminal background checks (and whether they are discriminatory) and everything about two litigants buying off off the risk of a trial on the issue. For now, the safest course of action for employers is to follow the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (at least until the federal courts tells us otherwise).

When religious liberty clashes with job requirements

By now, you’ve likely heard about the Muslim flight attendant who filed a charge of discrimination with the EEOC, claiming that her employer refused to accommodate her religion by requiring her serve alcohol on flights. There is much to say about this issue, but I do not think I can say it any better than Eugene Volokh did in the Washington Post. I highly recommend his thorough and thoughtful essay.

The practical question, however, is what to do when an employee requests such an accommodation. Consider:

• A Catholic pharmacist who refuses to sell birth control.
• A Muslim truck driver who refuses to deliver any pork.
• A Christian Scientist nurse who refuses a flu vaccine.
• An Orthodox Jew who refuses to sell any non-Kosher items.
• An IRS employee with religious objections to working on certain tax-exemption applications.

How you feel about each of these particular cases will depend, in large part, on your view of Religion, or certain religions. Yet, Title VII does not make any such distinctions. Instead, Title VII requires employers to exempt religious employees from generally applicable work rules as a reasonable accommodation, so long as the accommodation won’t impose on the employer an “undue hardship” (something more than a modest cost or burden). If the job can get done without much of a burden, then Title VII requires the employer to provide the accommodation.

Volokh makes six observation about this reasonable-accommodation rule, which are worth repeating:

1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task. Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

In other words, Title VII’s religious accommodation provision is the law of the land, and it does not permit value judgments based on the religion of the person making the request, no matter how different a religion may seem from ours. If the request is based on a sincerely held religious belief, is reasonable, and does not impose an undue hardship, an employer must provide it. Value judgments will result in litigation, in which the employer will likely be on the wrong side of the law. Treat each religion equally, consider each accommodation request on its merits, and err on the side of inclusion.

A White House forum for your whiny employees? Yup, this is a real thing, and you should pay attention.

Does your workplace have that employee who complains about everything? Is there that one person, who, no matter what you do, it’s never good enough? Lucky for you, the White House now has a forum for this pain-in-your-butt.

The White House has announced it’s “Summit on Worker Voice”. According to the White House:

On October 7, 2015, the White House and the Department of Labor will bring together workers, labor leaders, advocates, forward-leaning employers, Members of Congress, state and local officials and others to highlight the relationship between worker voice and a thriving middle class.

The White House Summit on Worker Voice will provide a historic opportunity to bring together a diverse group of leaders—including workers, employers, unions, organizers and other advocates and experts—to explore ways to ensure that middle class Americans are sharing in the benefits of the broad-based economic growth that they are helping to create. We want both seasoned and emerging leaders from across the country, who are taking action in their communities to lift up workers’ voices—to be active participants in this conversation.

The White House is looking for your employees to nominate workplace “voice leaders”, those who:

• Join with coworkers to discuss common workplace issues in a constructive and productive way.
• Support workers in seeking workplace policies that better respond to worker needs and concerns.
• Seek feedback—for example, through surveys—from employees to learn what really matters to them.
• Open a dialogue among workers, managers, and supervisors about what works best in your workplace.
• Create dialogue with coworkers and employer leadership about ways to expand voice in the workplace.
• Reach out to workers who have never had a voice in the workplace to let them know that they are not alone and broaden the conversation on the future of the workplace.

In other words, the White House is looking for employees to join together to discuss wages, hours, and other terms and condition of employment, a right that the National Labor Relations Act guarantees to your employees.

The Obama Administration, through the NLRB, has made it a whole lot easier for labor unions to form. The NLRB has implements it’s expedited, ambush election rules, and has held franchisors, staffing agencies, and contractors responsible as joint-employers for the bargaining responsibilities of their independent subsidiary entities. Now, the White House has gone a step further by opening a forum for employees to understand their rights to complain and grieve. This administration is bending over backwards to bring up the working and middle classes. And, if you are not implementing progressive wages and policies for your workers, the White House is sending a strong message that it’s more than okay for them to complain, or, worse, form a union to collectively bargain for those rights.

I’ve said before that there is a war brewing between the working classes and corporate America. One battle line is the minimum wage. Another is the labor movement, and the White House has clearly chosen it’s side.

WIRTW #380 (the “left of the dial” edition)

If you find yourself on the west side of Cleveland on the afternoon of September 12 or 13, stop by The Brothers Lounge to check out my kids’ latest rock ‘n’ roll adventure.

Norah will be performing in School of Rock’s “Left of the Dial” show, featuring the pre-Nirvana alt sounds of The Replacements, R.E.M., Dinosaur Jr., Echo and the Bunnymen, and others. To whet your musical appetite, here’s a 15-second clip of Norah crushing the lead vocals on Concrete Blonde’s “Bloodletting”.

A clip of Norah doing her thing, singing Concrete Blondes' "Bloodletting" at tonight's @schoolofrockcle Parking Lot Show. She gave herself a C+ tonight. I guess she's a tough critic. @schoolofrockusa

A video posted by Jon Hyman (@jonhyman) on Aug 17, 2015 at 4:24pm PDT

Also, stick around for my son Donovan’s musical debut, tickling the keys in the Rock 101 band with songs by The Who, Foo Fighters, and Linkin Park. If you stop, say hi, and mention the blog, I might even buy you a beer.

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

Discrimination

• Five Things An Employer Should Do After Receiving a Charge of Discrimination — via Minnesota Employer
• Under the ADA, can you fire an alcoholic who doesn’t request treatment? — via Eric Meyer’s The Employer Handbook Blog
• Ability to get along with others is an “essential function” under the ADA — via Mike Haberman’s Omega HR Solutions
• Commitment to diversity doesn’t prove bias — via Business Management Daily

Social Media & Workplace Technology

• Why Ballot Selfies Are A Terrible Idea For Workers — via Donna Ballman’s Screw You Guys, I’m Going Home
• Man Sends Naked Selfies to Prospective Employer — via Time
• Judge Expresses Frustration With Overbroad Discovery Requests for Social Media Evidence–Farley v. Callais — via Technology & Marketing Law Blog
• Labor Law Developments That Will Shake Technology, Media and Telecommunications Employers — via Technology Company Counselor
• The Ashley Madison Breach: Cybersecurity Nightmare, or Wake Up Call For Employers? — via TLNT
• Cyber boogeyman—internal or external threat? — via Technology for HR

HR & Employee Relations

• The Art of the Apology: Saying “Sorry” in the Workplace — via Dan Schwartz’s Connecticut Employment Law Blog
• The on-air shootings at WDBJ-TV: When bad things happen to good employees — via Robin Shea’s Employment & Labor Insider
• Should Employment Lawyers Advise Clients on Workplace Violence Issues? — via California Employment Law
• Four-Day Workweeks: A Fulcrum for Work/Life Balance — via Blogging4Jobs
• Four-day work weeks are growing in popularity and you’ll absolutely love them — via BGR
• How Do We Make Unlimited Time Off Work, Work? — via 1 Million for Work Flexibility
• One Size Fits All? The Case for Unified Employment Policies for Multi-State Employers — via Employment Matters Blog

Wage & Hour

• What the Browning-Ferris Decision May Forecast for Wage and Hour Law — via The Wage and Hour Litigation Blog
• Is the Contract Worker Golden Age Coming to an End? — via In House
• Employee or Independent Contractor? 3d Cir. FLSA Edition — via Phil Miles’s Lawffice Space
• Fight for $15: the strategist going to war to make McDonald’s pay — via The Guardian
• OSHA Means Business in Targeting the Health Care and Nursing Care Industries — via OSHA Law Update

Labor Relations

• If Employees, Uber Drivers Could Organize into a Union — via Matt Austin Labor Law
• NLRB: we’re coming after franchisors and subcontractors — via Overlawyered
• New NLRB Joint Employers Test – Why It Matters For OSHA — via OSHA Law Update
• What Did the NLRB Say in its Ruling on Joint Employment–and Why? — via The Emplawyerologist
• Five Practical Issues Browning-Ferris Creates for Employers — via Labor Relations Today
• NLRB’s “Joint Employer” Case Matters to Non-Union Employers, Too — via What's New in Employment Law?

Employment policies are more than words on paper; they are a lifestyle

Yahoo CEO Marissa Mayer is in the news. In one breath, she announced that she is expecting twins, but will not be availing herself of her company’s generous maternity leave policy. Yahoo offers all new parents eights weeks of paid time off, and new moms an additional eight weeks. Mayer says that she will take “limited” time off and work throughout her short leave of absence. After the birth of her son in 2012, Mayer returned to work in less than two weeks.

The New York Times quotes Joan Williams, director of the Center for WorkLife Law at the University of California, Hastings, who believes that a company’s actions are more important that its written policies: “The underlying work culture sends the message that if you’re really committed, you’re here all the time.” I could not agree more.

Policies are great tools for employee engagement, recruitment, and retention … if a company follows them. When a CEO spurns her company’s generous parental leave policy, she sends this message to all of her employees: “Our policies do not reflect our culture; my actions reflect our culture. When you have a child, do as I do, not as I say.” So much for generous and consequence-free time-off.

Companies need to be very careful not to send these mixed messages. It might be a leave-of-absence policy (as in Yahoo’s case), or it might be a manager that tells employees they must use vacation time for kids’ doctors appointment or school events, but comes and goes as he pleases without regard. These mixes messages are morale killers.

More importantly, these mixed messages teach employees that your written policies cannot be trusted. This message of distrust is one that you cannot afford to send, especially with policies that have real legal significance, like your anti-harassment policy. If your employee disregard your policies as corporate lip-service, why have them at all?

Is the government out get you? Find out on September 17 at our next breakfast briefing.

Join my partners and me on September 17 as we present Meyers Roman’s next Breakfast Briefing, Is the Government Out to Get You? Essential Human Relations Policies for Compliance.

Recent aggressive initiatives by the EEOC, the DOL, the NLRB, and OSHA and their impact on your business are creating concern and uncertainty in the workplace. Credit/criminal background checks, LGBT discrimination, OSHA investigations, employee misclassification, and social media handbook policies will all be discussed at MRFL’s next Breakfast Briefing focusing on this most timely topic.

Seth Briskin, Chair of our Labor & Employment Practice Group, Jon Hyman, our award-winning employment law blogger, and Steve Dlott, Chair of our Workers’ Compensation Practice Group, will provide an overview of the hot topics on the government’s watch list, critical information of which every Human Relations department and member of management needs to be aware.

WHEN:	September 17, 2015
TIME:	7:30 – 8:00 am Registration & Breakfast / 8:00-9:30 Seminar
WHERE:	Doubletree by Hilton (3663 Park East Drive, Beachwood, 44122)
COST:	Free

***2 Hours of HRCI credit will be given***

Seating is limited. To reserve you space, RSVP to Sara Cox—scox@meyersroman.com or 216-831-0042.

Don’t forget to check social networks during your workplace investigations

Cleveland.com reports that a former bi-racial employee has sued a Steak ‘n Shake restaurant for race and disability discrimination:

A discrimination lawsuit contends that two employees of a Steak ‘n Shake restaurant in Aurora used racial slurs, including n-----, to refer to a black co-worker.

Brandon Waters’ suit also accuses the Indiana-based restaurant chain of failing to provide a harassment-free work environment, resulting in his firing in 2011 for being too afraid to show up for work….

Waters is biracial, and he was born with a viral infection that affects his motor and speech skills. His lawsuit names the restaurant chain, Timothy Schoeffler, a former co-worker, and Nick Karl, a former manager at the restaurant.

According to the complaint, Waters was called racial slurs at the store and on Twitter, and Karl and Schoeffler referred to him by the nickname “Radio,” a reference to the 2003 film in which Cuba Gooding Jr. plays a mentally disabled student. Karl is also accused of creating a “Radio” name tag that Waters refused to wear. 

Schoeffler also dumped a milkshake on Waters’ head in front of Karl, who laughed, the lawsuit states. The two then discussed the incident on Twitter, the lawsuit says.

Screen shots of a collection of tweets between the two men is attached to the lawsuit, and includes references to “Radio” and messages such as “the white way is the right way.”

Screen shots? Here you go:

 

Two thoughts to leave you with:

1. Yes, employees are still ignorant enough about social media to engage in very public online conversation about the (alleged) systematic harassment of a co-worker. If you are not checking Twitter, Instagram, Facebook, and other social networks as part of your internal workplace investigations, there is a good chance you are missing key evidence, and maybe even the smoking gun.

2. The restaurant fired the accused employees in response to the plaintiff’s complaint to management about the alleged harassment. The plaintiff, however, just stopped going to work after their termination, claiming that he felt “unsafe as other employees and managers either tolerated or participated in the harassment.” If this employer had an anti-harassment policy, trained all of its employees about the policy, conducted a prompt investigation after the internal complaint, and took prompt remedial action after the complaint, I think that this plaintiff is going to have a difficult time establishing his claim against the employer.

NLRB re-affirms that workplace policies cannot restrict non-work-time solicitations

Have you recently reviewed your company’s Electronic Communications Policy, and other policies that regulate how employees use your email and other computer systems? If not, you might want to consider putting that to-do on your short list.

Late last year, in Purple Communications, the NLRB held that employers must permit employees to use corporate email systems during non-working time to communicate about union issues. Late last week, in UPMC [pdf] reaffirmed this standard.

At issue in UPMC was the following no-solicitation policy:

No staff member may distribute any form of literature that is not related to UPMC business or staff duties at any time in any work, patient care, or treatment areas. Additionally, staff members may not use UPMC electronic messaging systems to engage in solicitation….

All situations of unauthorized solicitation or distribution must be immediately reported to a supervisor or department director and the Human Resources Department and may subject the staff member to corrective action up to and including discharge.

The employer argued that its nature as a hospital necessitated a special-circumstances exception to Purple Communications, entitling it to limit employees’ use of its email systems across the board. The NLRB, however, disagreed:

We do not doubt that using a hospital’s email system during working time may be distracting, and that when nurses and others responsible for patient care are distracted, errors may result that may affect patient safety. But those concerns, however legitimate, do not justify a policy that prohibits the use of UPMC electronic messaging systems for only one type of communication, namely solicitation…. It seems to us that the asserted concerns would prompt the Respondents either to deny employees access to UPMC’s email system altogether, which is lawful under Purple Communications, or to fashion a policy that applies solely to working time, also permitted under Purple Communications.

In other words, if you permit your employees to access and use your email and other electronic systems, then you cannot limit that access to work purposes only during non-work-time; employees must be permitted to engage in solicitations, which necessarily includes union-related solicitations. Anything more restrictive will almost certainly violate employees’ section 7 rights.

Hence, this is why I suggest, sooner rather than later, that you review, with your labor and employment counsel, your handbook and other workplace policies for compliance with the NLRB’s Purple Communications rule.

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.