Ohio Employer's Law Blog

He’s a lumberjack and, apparently, he’s not okay

2013-06-18T08:15:00.000-04:00

An employee who posed in Playgirl magazine is suing his former employer for sexual harassment, reports ABC News.

18 years ago, Daniel Sawka posed as a nude lumberjack in Playgirl. Sawka alleges that when his co-workers discovered the pictures online, they began teasing him with chants of “Timber!” According to Sawka’s lawsuit [pdf], the harassment included jokes about “his genitals, and a comment about what homosexual men viewing the photos … would be doing while viewing the photos.” Sawka also claims that his co-workers downloaded or viewed the photos during work hours and on work computers.

The lessons here are two-fold:

Just because an employee posed nude for money in his 20s does not mean that he is comfortable with it becoming a workplace joke in his 40s. If an employee complains, the company has an obligation to investigate and take reasonable measure to stop the harassing behavior from continuing. This rule holds true whether the employee is male or female.
The Internet is permanent. Google has approximately 47 billion webpage indexed for searching. The odds are pretty good that if someone wants to dig up some dirt on your, they’ll be able to find something.

Also, this story gives me great excuse to share this:

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Fox Searchlight case confirm that unpaid interns are a dying breed

2013-06-17T07:40:00.000-04:00

Out of the millions of page-views this blog has received over the six-years of its existence, the most popular post (by an almost three-to-one margin over its closest competitor) is You should pay attention to this post if you have unpaid interns. In that post, I discussed a lawsuit filed by two unpaid interns who claimed that they should have been paid while working for Fox Searchlight pictures.

Last week, the United States District Court for the Southern District of New York agreed.

In Glatt v. Fox Searchlight [pdf], the Court applied the Department of Labor’s six-factor test and determined that that the internships should have been paid.

1. Is the training similar to what would be given in a vocational school or academic educational instruction?

While classroom training is not a prerequisite, internships must provide something beyond on-the-job training that employees receive…. Footman did not receive any formal training or education during his internship. He did not acquire any new skills aside from those specific to Black Swan’s back office, such as how it watermarked scripts or how the photocopier or coffee maker operated.

2. Is the training for the benefit of the trainees or students?

Undoubtedly, Glatt and Footman received some benefits from their internships, such as resume listings, job references, and an understanding of how a production office works. But those benefits were incidental to working in the office like any other employee and were not the result of internships intentionally structured to benefit them…. On the other hand, Searchlight received the benefits of their unpaid work, which otherwise would have required paid employees

3. Do the trainees or students work under their close observation of regular employees without displacing them?

Glatt and Footman performed routine tasks that would otherwise have been performed by regular employees…. His supervisor stated that “[i]f Mr. Glatt had not performed this work, another member of my staff would have been required to work longer hours to perform it, or we would have needed a paid production assistant or another intern to do it.”

4. Does the employer derive no immediate advantage from the activities of the trainees or students, and on occasion are the employer’s operations actually impeded?

Searchlight does not dispute that it obtained an immediate advantage from Glatt and Footman's work. They performed tasks that would have required paid employees. There is no evidence they ever impeded work at their internships. Menial as it was, their work was essential. The fact they were beginners is irrelevant

5. Are the trainees or students not necessarily entitled to a job at the conclusion of the training period?

There is no evidence Glatt or Footman were entitled to jobs at the end of their internships or thought they would be.

6. Do the employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training?

Glatt and Footman understood they would not be paid. But this factor adds little, because the FLSA does not allow employees to waive their entitlement to wages.

Based on the balancing of these six factors, the Court concluded the the employees “were classified improperly as unpaid interns and are ‘employees’ covered by the FLSA.”

This issue is not going away. According to Friday’s New York Times, last week two former interns sued Condé Nast for unpaid wages. I think it’s fair to say that the sun in quickly setting on the use of unpaid internships in corporate America.

In light of these cases, it bears repeating the conclusion I reached in The Employer Bill of Rights (p. 159):

Employers that use unpaid interns should pay careful attention to this issue. It is far better to scrutinize interns under the DOL’s six factors before the agency, or a group of plaintiffs, swoop in and do it for you. It is even better to formalize the relationship in a written internship agreement that formally spells out how each of these six questions is answered in your favor. Or maybe it is best simply to assume that except in rare cases, there is no such animal as an “unpaid intern,” and you should simply accept the fact that if you are going to label entry-level employees as interns, you need to pay them for their services.

WIRTW #278 (the “carnival barker” edition)

2013-06-14T07:28:00.000-04:00

This coming Wednesday, I’m hosting the Employment Law Blog Carnival. For the uninitiated, a blog carnival a collection of submitted links arranged around a particular theme. To get a better idea of what the Employment Law Blog Carnival is all about, you can read my prior two hosting stints:

If you have a link you’d like me to share in this month’s Carnival, please email it to me no later than Monday.

Because of my Carnival-hosting duties, WIRTW will not run next Friday, and will return on June 28.

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

Discrimination

Moms rule in lactation, pregnancy, and health insurance challenges — from Robin Shea’s Employment and Labor Insider
Just Give Me a Reason: Court Clarifies Burden-Shifting Standards — from Dan Schwartz’s Connecticut Employment Law Blog
GINA Lawsuits are Becoming More Common — from Mike Haberman’s Omega HR Solutions
Retaliation Gets A Broader View — from Trade Secret / Noncompete Blog
Can a Hostile Environment Claim Arise From Conduct Between Employees Outside the Workplace? — from Minnesota Employer
Failure to Provide Additional Leave as ADA Accommodation Could Prove Costly to Employers — from Jeff Nowak’s FMLA Insights
LGBT Workers Face Rampant Discrimination, Higher Taxes and Receive Fewer Workplace Benefits — from Workplace Fairness
Should I Caution My Gay Employee About His Picnic PDAs? — from Evil Skippy at Work
EEOC steps up enforcement of genetic information non-discrimination — from EmployerLINC

Social Media & Workplace Technology

Banned at Work: Employers Blacklist Apps From Facebook, Google — from Bloomberg Businessweek
Stop Insider Tweeting!—Feds Eye Social Media for Securities Shenanigans — from Socially Aware Blog
Using Instagram Can Get You Fired — from Business Insider
Through the Lens of a Taco Bell Kid Licking Taco Shells — from The HR Capitalist, Kris Dunn
In-House Email Policy: What Makes a Good One? — from In House Blog
Email Security in the Modern Workplace — from i-Sight Investigation Software Blog
Why Your CEO Is a Security Risk — from Harvard Business Review
I’ll BYOD if You BYOB — from YourHRGuy
Let's Talk About BYOD Privacy In the Workplace, Stat — from Workplace Diva
Is Social Media the Biggest Workplace Distraction? — from Social Media Today

HR & Employee Relations

Enforceability of a Noncompete Agreement will Often Depend Upon Context — from Michigan Employment Law Advisor
Few Employees Quit Jobs Over Mandatory Flu Shots — from EmployerBrief
Stealing Trade Secrets? Go Directly to Jail / Do Not Pass Go / Do Not Collect $200* — from netWORKed Lawyers
Lesson From Zynga: Perks Are Not More Important Than a Business Plan — from Evil HR Lady, Suzanne Lucas
SCOTUS Defers to Arbitrator on Class Arbitration — from Phil Miles’s Lawffice Space
Can I trust HR to protect my legal rights? — from The Evil HR Lady, Suzanne Lucas, at CBS Money Watch

Wage & Hour

Employers beware misclassifying employees as unpaid interns — from Employment Law Bits
Big win in fight against unpaid internships — from Workplace Prof Blog
Unpaid interns win lawsuit against Fox Searchlight Pictures — from Minding the Workplace
Unpaid Internships may be more costly than you may think — from Employment Matters Blog
Pennsylvania District Court Denies Certification Of Off-The-Clock Case — from Employment Class Action Blog
No No No ... Not In Our Court. Sixth Circuit Uses Dukes v. Wal-Mart To Block Class Certification and Extends It To Bar Hiring Discrimination Class Claims — from Employer Law Report
Why Dads Don't Take Paternity Leave — from the Wall Street Journal

Labor Relations

Non Union Employers Beware: OSHA Has Just Become A Union Organizer — from The Labor and Employment Law Blog
Does firing a law firm associate for discussing wages violate federal labor law? — from Eric Meyer’s The Employer Handbook Blog
Attacked on all sides, NLRB is in “unprecedented” place — from Thomson Reuter’s News and Insight
NLRB Going Rogue — from California Employment Law
NLRB Finds Discussions With Employees of Another Employer Can Constitute Protected Activity — from Pennsylvania Labor and Employment Blog
NLRB’s Notice Posting Rule (Still) On Hold — from BLEG Blog

photo credit: burakiewicz via photopin cc

Cancer as a protected disability

2013-06-13T07:23:00.000-04:00

The Am Law Daily reports that the former CFO of Proskauer Rose is claiming that the international law firm violated the Americans with Disabilities Act by terminating her after a three-month leave of absence for breast cancer. Earlier this month, the EEOC published an updated Q&A discussing the treatment of cancer in the workplace under the ADA. As the EEOC notes, there is little doubt that the ADA protects cancer as a disability:

As a result of changes made by the ADAAA, people who currently have cancer, or have cancer that is in remission, should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of normal cell growth or would be so limited if cancer currently in remission was to recur. Similarly, individuals with a history of cancer will be covered under the second part of the definition of disability because they will have a record of an impairment that substantially limited a major life activity in the past. Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of cancer or because the employer believes the individual has cancer.

The newly published Q&A answers the following four questions:

When can an employer ask an applicant or employee questions about his cancer and how should it treat voluntary disclosures? The ADA prohibits employers from requesting or compiling any medical information during the hiring process. Once a conditional job offer is made, an employer can require a medical examination, as long is it does the same for all employees in the same job classification. An employer may also require an employee returning from a medical leave of absence to certify his or her ability to adequately and safely perform the essential functions of the job. As with any medical information, the ADA obligates an employer to keep information about an employee’s cancer confidential.
What types of reasonable accommodations may employees with cancer need? Some exemplar accommodations include time off for doctors’ appointments, periodic breaks during the workday to rest or take medications, modified work schedules or shift changes, permission to telecommute, permission to use a work telephone to contact doctors, and redistribution of marginal and non-essential work tasks to other employees.
How should an employer handle safety concerns about applicants and employees with cancer? An employer may only exclude an individual with cancer from a job for safety reasons when the individual poses a “direct threat.” A direct threat is an objective determination of a “significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.”
How can an employer ensure that no employee is harassed because of cancer or any other disability? The ADA prohibits disability-related harassment. The best means to prevent or eliminate this misconduct from the workplace is via written policies or handbook provisions, coupled with education and training. Also, employers should take seriously all complaints of harassment of any kind (including harassment related to an employee’s disability), investigate all complaints, and take prompt remedial action to ensure that it stops and does not repeat.

The EEOC’s Q&A on cancer is chock-full of useful information, including practical examples of how to handle many situations that could arise. Of course, if you have any doubt at all about how to handle an employee with cancer or a history of cancer, consult your employment counsel to ensure that you do not make a costly mistake.

This post originally appeared on The Legal Workplace Blog.

Can you ban foreign languages in the workplace? English-only policies.

2013-06-12T07:32:00.000-04:00

USA Today reports that Whole Foods has suspended two employees for allegedly speaking Spanish to each other on the job. For its part, Whole Foods denies the claim, and insists that it suspended the employees for “rude and disrespectful behavior.”

Regardless of who is correct, in our increasingly multi-cultural country, this story begs the questions of how, when, and why is a company permitted to limit languages spoken in the workplace.

I initially addressed this issue almost six(!) years ago in a post entitled, English-only workplaces spark lawsuits. In that post, I made the point that English-only rules are legal as long as the employer can show a business need for the policy (for example, inter-employee communication or workplace safety). An overly restrictive rule (for example, prohibiting non-English-speaking in non-work areas such as the lunchroom), however, might violate Title VII’s prohibition against national origin discrimination. You can read my original post to learn the ins and outs of this interesting and seldom litigated issue.

According to the USA Today story, Whole Foods’s “policy states that all English speaking team members must speak English to customers and other team members while on the clock” and that “team members are free to speak any language they would like during their breaks, meal periods, and before and after work.” To me, that policy is perfectly legal under Title VII, and should raise no issues for the employer, even if it disciplined these two employees for speaking Spanish on the shop floor.

What do you do when an employee refuses to complain?

2013-06-11T07:26:00.000-04:00

Do you know what to do if you believe an employee was sexually harassed, but refuses to provide any details or other information? Do you have an obligation to investigate as if the employee had lodged a formal, detailed complaint? Crockett v. Mission Hospital (4th Cir. 5/30/13) provides some insight.

Stephanie Crockett worked at Mission Hospital as a radiologic technologist. Her supervisor (albeit one without the authority to hire or fire) was Harry Kemp. Following several disciplinary notices and a final written warning, Crockett asked if she could speak to Kemp. He agreed to a private conversation. Kemp insisted they meet in an unused office, expressing that he thought his office had been bugged. Then, behind closed doors, Kemp requested that Crockett remove her clothes before they spoke to prove that she wasn’t wearing a wire. Crockett complied, albeit begrudgingly and through tears. Following their discussion, Kemp requested that she not tell anyone what happened.

While Crockett on a leave of absence, Kemp went to HR and accused Crockett of “flashing” him in an attempt to persuade him not to report new disciplinary violations. Crockett denied to HR that she had flashed Kemp, and further told them that he had done something “horrific” to her and was trying to cover it up. She refused to elaborate, but later told HR that the incident involved sexual advances by Kemp. She again, however, refused to provide any details. HR then interviewed at least 5 co-workers, each of whom denied seeing or hearing anything inappropriate. The hospital later terminated Crockett for admitting to having recorded conversation between Kemp and her, and conversations about patient information, in violation of hospital policy.

The appellate court affirmed the district court’s dismissal of Crockett’s sexual harassment claim, concluding that the hospital “exercised reasonable care to prevent and correct promptly any sexually harassing behavior;” and that Crockett “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

McCarthy, Jones, and Ensley immediately began an intensive investigation on February 25, 2010, after Crockett accused Kemp of “horrific” behavior toward her, despite the fact that she refused to provide any further details or information. They interviewed numerous employees and supervisors in Crockett’s department, but were handicapped by Crockett’s refusal to cooperate and give Mission some clue as to her complaint. Since Crockett had refused to provide any information, their attempts to investigate her claim were unsuccessful….

The uncontradicted evidence establishes that Mission met with Crockett on numerous occasions in an effort to promptly correct the situation, counseled her in the procedure for filing a formal complaint, and provided her with a copy of the sexual harassment policy, despite Crockett’s unwillingness to cooperate with the investigation.

Harassment is harassment, regardless of whether the victim complains or management learns of the harassment allegations another way. A company’s obligations to investigate, and, if necessary, take corrective action does not change merely because the victim won’t cooperate.

For more information on how to appropriately and effectively respond to a harassment complaint, I suggest reading How NOT to respond to a harassment complaint. I also cover the topic in-depth in Chapter 6 of The Employer Bill of Rights.

NLRB judge strikes down Red Cross employee confidentiality policy

2013-06-10T08:24:00.001-04:00

A couple of months ago, I suggested that there was hope for a friendship between the NLRB and me, following the Board’s pronouncement that most at-will employment disclaimers would not violate the NLRA’s protected concerted activity laws. I reached this conclusion because of the Board’s statement concerning reading employment policies “in context” to determine whether potentially violative phrases in employment policies can conceivably be read to restrict Section 7 activity.

If the Board is supposed to read employment policies “in context,” then can you please explain the recent ruling by an NLRB Administrative Law Judge in American Red Cross Blood Services, Western Lake Erie Region (6/5/13) [pdf]?

In American Red Cross, the ALJ examined the following confidentiality policy:

I acknowledge that I may, in the course of my employment with Red Cross (“Employment”), have access to or create (alone or with others) confidential and/or proprietary information and intellectual property that is of value to Red Cross. I understand that this makes my position one of trust and confidence. I understand Red Cross’ need to limit disclosure and use of confidential and/or proprietary information and intellectual property…. Therefore, I agree to the following:

Confidential information shall include but not be limited to: … information relating to Red Cross’ … personnel … matters.

The ALJ held that this policy violates Section 8(a)(1) of the NLRA by reasonably chilling employees in the exercise of their section 7 rights:

By defining confidential information as including information regarding “personnel” and “employees” the [policy] would be reasonably understood by employees to prohibit the disclosure of information including wages and terms of conditions of employment to other employees or to nonemployees, such as union representatives. It is, of course, clearly established that employees have a Section 7 right to discuss wages and terms and conditions of employment among themselves and with individuals outside of their employer.…
The specific employee handbook provision that prohibits the release of confidential employee information without authorization is clearly facially overbroad, … in that such a rule would reasonably be understood by employees to prohibit the disclosure of information regarding wages and terms and conditions of employment to other employees or to union representatives.

I do not agree that employees would reasonably understand that a policy that covers “personnel” matters would prohibit employees from discussing matters of compensations and wages. Indeed, there were no allegations in the case that the Red Cross acted against any employee under this policy. Instead, the ALJ was reviewing the policy in the abstract.

The ALJ also rejected the employer’s argument that a “savings clause” in its handbook rendered an otherwise unlawful policy lawful:

“[T]his Agreement does not deny any rights provided under the National Labor Relations Act to engage in concerted activity, including but not limited to collective bargaining.” As the Charging Party correctly noted in its brief, under Board law, such a disclaimer does not make lawful the content of a provision that unlawfully prohibits Section 7 activity.… The “savings clause” noted above arguably would cancel the unlawfully broad language, but only if employees are knowledgeable enough to know that the Act permits employees to discuss terms and conditions of employment with each other and individuals outside of their employer.

I have two takeaways for employers from this decision.

The NLRB continues to scrutinize facially neutral employment policies for violations of employees section 7 rights to engage in protected concerted activity, even in cases in which there is no allegation of any adverse action against any employee under an alleged unlawful policy.
Savings clauses and disclaimers might save a policy that the NLRB views as overly broad, but likely only if specifically drafted. Board and non-specific savings clauses will not save the day. Instead, employers should draft savings clauses such that employees can reasonably understand their specific rights that are protected.

WIRTW #277 (the “come on down” edition)

2013-06-07T07:29:00.000-04:00

Some of my fondest memories as a child were watching The Price is Right with my Grandmom Annie on the TV in her basement. We’d watch Family Feud, The Price Is Right, and The Match Game, and then she’d make me a grilled cheese sandwich for lunch. Heaven on earth to a 4-year-old.

Harkening back to those childhood days, I always wanted to see The Price is Right live. I fulfilled that dream during the spring break of my 1st year of law school. The experience was surreal. We sat next to a guy wearing a pink, bespangled, “I ♥ Bob Barker” sweatshirt. It was his 250th taping, and he knew the names of all of Bob Barker’s cats and dogs (restraining order not included). We also saw one of the curtains break down as they were about to reveal the prize for one of the pricing games, followed by Bob Barker telling the confused contestant, “When we start rolling tape, I will have already said, ‘And you can win this!’ The first thing the camera will see is your reaction. So, whatever piece of s**t is behind that curtain, you better react like it is the best thing you’ve ever seen.”

I tell this story because earlier this week, The Huffington Post reported that a North Carolina postal worker pleaded guilty to workers’ compensation fraud. The employee had lied about her inability to stand, sit, kneel, squat, climb, bend, reach, grasp, or lift. The smoking gun? An appearance on TPIR on which she spun the big wheel, twice.

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

Discrimination

Is Sexual Harassment Permissible If It Is Directed At Both Male and Female Employees? — from Minnesota Employer
Sexually Harassing Comments - Is There Any Case Where A Single Usage Created A Hostile Work Environment? — from Employment Discrimination Report
Employee alleges he got the “Office Space,” claims age discrimination — from Eric Meyer’s Employer Handbook Blog
EEOC guidance may impact hiring practices of regulated industries — from EmployerLINC
Case of fired Catholic schoolteacher likely isn’t over — from Crain’s Cleveland Business Work Force Blog
“Fired for being gay” article in NY Times — from Warren & Associates Blog
Unpaid Worker Not “Employee” Under Title VII, 5th Circuit Decides — from Joe’s HR and Benefits Blog
We Need the Young to Help Eliminate Age Discrimination in the Workplace — from TLNT
Are these medical questions illegal, or not? Test your knowledge! — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

Can You Control Your Employees’ LinkedIn Profiles? — from Evil HR Lady, Suzanne Lucas
Think Before You Tweet: It’s All Fun and Games Until Someone Gets Fired — from PayScale
Newsbreak: What You Post on Facebook Can Be Used Against You — from Lawyers.com
Social Media Password Protection and Privacy — The Patchwork of State Laws and How It Affects Employers — from Workplace Privacy Counsel
Undeliverable: E-mail blocks retaliation claim — from Technology for HR

HR & Employee Relations

The Biggest Interview Mistakes HR Experts See — from Lifehacker
Secrets of Super Negotiators – Don’t Use Round Numbers — from Negotiation Law Blog
Backing a new employee in restrictive covenant proceedings can be costly — from Employment Law Worldview
What to Do When an Employee Cries at Work — from Harvard Business Review
Employers in the Crossfire — from Jonathan Segal
Managing millennials: Gen Y workforce seeks information, feedback, work/life balance — from Knoxville News Sentinel
What Will Your Workplace Look Like in 2023? — from Wired’s Innovation Insights
The Impact of Breadwinner Moms on HR — from Mike Haberman’s Omega HR Solutions
Captain America Comes to NEO: 5 Ways to Help Employees Battle the Traffic — from ERC Insights Blog
Preparing to Conduct HR Investigation Interviews — from i-Sight Investigation Software Blog

Wage & Hour

How cutting employee hours due to health reform may infringe federal law — from Employee Benefit News
Massachusetts Federal Court Provides Important Reminders for Challenging FLSA Collective Actions — from Wage & Hour Counsel
FLSA Collective Action Waivers in Arbitration Agreements Okay’d — from The Wage and Hour Litigation Blog
Wage & Hour Surprises and Risks — from Work Place Coach Blog News
Update: Sears v. Butler — from Walter Olson’s Overlawyered
Your Summer Intern Is Here. Now What? — from Harvard Business Review
Challenges (and Solutions) to Unlimited Vacation Policy — from Blogging4Jobs

Labor Relations

Here’s Your Annual Post On Everything That’s Wrong With Unions — from The HR Capitalist, Kris Dunn
NLRB and Social Media — from Wyatt Employment Law Report

Your employees are BYODing, whether you like it or not

2013-06-06T07:46:00.000-04:00

According to a survey released yesterday by the Pew Internet & American Life Project, 61 percent of Americans own a smartphone. Employers need to pay attention to this number. Ownership of smartphones has reached a critical mass in our society.

Given the proliferation of these devices, it makes sense that employees are bringing them to work, whether employers permit it or not. According to another recent survey, conducted by analyst house Ovum [h/t: ZD Net], 56.8 percent of employees use personal devices at work. Seventy percent of those employees who use personal devices at work are using a smartphone, and of those smartphone-owning employees, more than one-third bring them to work either without the knowledge of their IT department, or in spite of an outright corporate ban on personal devices in the workplace.

These numbers mean that a Bring Your Own Device program is no longer an option, but should be required. If employees are going to bring personal devices into the workplace, and use them to connect to your network, you need to deploy reasonable policies to govern their use and protect your network and security, instead of ignoring the issue or instituting prohibitions that employees will ignore anyway.

To put it another way, consider this thought from Adrian Drury, practice leader for consumer impact IT with Ovum, as quoted by ZD Net, “If you take the King Canute approach and try and drive that behaviour underground you just lose control of it.” Regain the control you need by rolling out a BYOD program.

If you are considering implementing a BYOD program, start with these posts from the archives to gain some background on the issues you should be thinking about:

My latest book — The Employer Bill of Rights: A Manager’s Guide to Workplace Law — also contains a sample BYOD policy for you to consider.

Controlling the comparative can control the discrimination case

2013-06-05T08:48:00.000-04:00

One of the key analyses in any discrimination lawsuit is whether the plaintiff is “similarly situated” to those whom he or she claims the employer treated more favorably. If the plaintiff can establish disparate treatment of those “similarly situated,” he or she can make out a prima facie case and proceed to the discrimination bonus round to prove that the employer’s legitimate non-discriminatory reason was a pretext. Conversely, a failure to prove “similarly situated” dooms a claim to the summary judgment scrapheap.

Louzon v. Ford Motor Co. (6/4/13) [pdf] illustrates the important role a determination of “similarly situated” plays in discrimination cases.

Moien Louzon, a product engineer at Ford, took an approved leave of absence to visit family in Gaza. While abroad, Israel closed its borders, stranding Louzon in Gaza. Ford initially extended his leave of absence, but by the time the State Department could evacuate him, the extension had expired and Ford had terminated him.

In Louzon’s subsequent national-origin discrimination lawsuit, Ford filed a motion in limine, which sought to precluded Louzon from offering at trial any evidence of comparable employees on the basis that none were similarly situated as a matter of law. The district court granted Ford’s motion and, on its own accord, granted summary judgment to Ford and dismissed Louzon’s case.

The appellate opinion dealt with two issues — one procedural and one substantive.

Procedurally, the court decided that the district court had improperly decided a non-evidentiary issue via the motion in limine — whether there existed any comparable employees similarly situated to Louzon. A motion in limine is a procedural mechanism to decide evidentiary issues before trial. The trial court, however, used it to decide a disputed legal issue at the heart of the case. By doing so, it treated the motion in limine as a motion for summary judgment, but without providing Louzon the procedural protections in place in responding to a summary judgment motion. The court made is clear that litigants cannot use motions in limine to get a second bite at the summary judgment apple.
Substantively, the court took up the issue of whether the trial court correctly determined that there did not exist any comparable employees similarly situated to Louzon. The court was concerned over the district court’s reliance on an outdated rule that mandated that comparative employees share the same supervisor. Instead, the 6th Circuit clarified that in determining whether employees are similarly situated, a court must “make an independent determination as to the relevancy of a particular aspect of the plaintiff’s employment status and that of the non-protected employee.” Merely examining whether there exists a shared supervisor is too narrow of a standard.

Similarly situated lies in the eyes of the beholder. How a court frames who is, and who is not, “similarly situated” can be dispositive of the issue of discrimination. For this reason, it is wise to examine any potential similarly situated employees for similar or dissimilar treatment under like circumstances before taking action against a protected employee.

Facebook posts as evidence of retaliation

2013-06-04T07:54:00.000-04:00

I’ve written before about the dangers of employers accessing employee’s social media accounts without appropriate controls in place. One of the biggest risks is that an employer will learn some protected fact about an employee (e.g., medical information) that could lead to an inference of a discriminatory motive if that employee later suffers some adverse action.

Deneau v. Orkin, LLC (S.D. Ala. 5/20/13), illustrates this risk in practice. One week before Orkin terminated Tammy Deneau for repeatedly working overtime without authorization, Deneau posted the following on her personal Facebook page: “anyone know a good EEOC lawyer? need one now.” At his deposition, Deneau’s branch manager testified that he saw the comment on her Facebook page and faxed it to the division human resources manager, who, in turn, recalled that management-level discussion about the Facebook post preceded Deneau’s termination.

The court concluded, with very little discussion, that the Facebook post qualified as protected activity to support Deneau’s retaliation claim, and that she had made out a prima facie case of retaliation:

Based on the close temporal proximity between Orkin learning of the Facebook comment and Plaintiff’s termination, the Court finds that Plaintiff has established a prima facie case of retaliation.

Nevertheless, Deneau lost her retaliation claim, because she could not prove that the employer’s legitimate non-retaliatory reason (the repeated unauthorized overtime) was a pretext for retaliation.

Even though the employer won this case, it nevertheless illustrates the dangers employers face when reviewing employees’ social media accounts. Facebook, Twitter, and other social media channels can prove to be treasure trove of protected information — information about an employee’s personal and family medical issues, religious issues, genetic information, and, like this case, protected complaints about discrimination.

If you have a legitimate reason to review an employee’s social media accounts (e.g., is the employee trashing your business online, or is the employee divulging confidential information?) do so with appropriate controls in place. Have a non-decision maker conduct the review, and provide to the appropriate decision makers a report sanitized of any protected information. This simple control will insulate your organization from any argument that the decision maker was motivated by an unlawful animus based on protected information discovered in the employee’s social media account, and could prevent an expensive and risky lawsuit.

Lactation discrimination = pregnancy discrimination

2013-06-03T07:51:00.000-04:00

Last February I reported on EEOC v. Houston Funding, in which a Texas district court held that an employee, fired after asking to pump breast milk at work, could not go forward with her pregnancy discrimination claim. The court reasoned that because lactation does not start until after pregnancy, it is not a condition “related to” pregnancy, and therefore the Pregnancy Discrimination Act amendment to Title VII do not protect lactation as sex discrimination.

At the time, I urged everyone not to overreact to one anomalous decision:

[T]he last I checked, women are the only gender that can naturally produce milk, and therefore denying a woman the right to lactate is sex discrimination. ...

Before people over-react and scream from the rooftops for remedial legislation to clarify that lactation discrimination equates to sex discrimination, one case does not make a rule. In fact, it is much more likely that one case is merely an aberration. I stand by my conviction that ... Title VII’s prohibitions against sex and pregnancy discrimination adequately cover the rights of working moms to lactate.

Late last week, the 5th Circuit agreed, and reversed the district court’s decision dismissing the case. Specifically, the court held that lactation is a medical condition related to pregnancy because it is a “physiological result of being pregnant and bearing a child.” In reaching this conclusion, the court analogized lactation to other physiological changes women undergo during and immediately after pregnancy:

Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly after the pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman’s post-pregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.”

To simplify matters, because men cannot lactate, it is discriminatory to deny an employee’s lactation request, because such a denial would necessarily treat women (or, more specifically, child-bearing women) differently than men.

When you couple this decision with the FLSA’s recent amendment that require employers to accommodate workplace lactation needs, it is more clear than ever than employees have a workplace right to lactate.

You can download a pdf of the 5th Circuit’s EEOC v. Houston Funding decision here.

Hat tip: Workplace Prof Blog

WIRTW #276 (the “HR in strange places” edition)

2013-05-31T07:54:00.000-04:00

Recently, an employee, described as an organization’s “most difficult,” received a scathing performance review. Among his faults detailed in an unearthed internal memo — he failed to file his expense reports on time, ignored phone calls and meetings, and did not undertake any spectacular operations.

Any guesses on the identity of the organization? Believe it or not, it’s Al Qaeda. The Daily Beast provides all of the details.

I have two thoughts about this news. First, this story gives a whole new meaning to “this memo will self-destruct in 10 seconds.” Secondly, when you are terminated from Al Qaeda, you are really terminated from Al Qaeda.

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

Discrimination

Minimizing Potential Liability for Workplace Harassment Issues — from Workplace Insights
Abraham Lincoln: Employment Lawyer — from Phil Miles’s Lawffice Space
You Can’t Use The “N-Word” - Not Even Once - But You Can Make Sexually Offensive Comments Four Times — from Employment Discrimination Report
Harassment Is Equal Opportunity — from Molly DiBianca’s Delaware Employment Law Blog
Why Men Still Can’t Have It All — from Esquire
The Problem with Boobs — from The Careerist
Exxon Shareholders Reject Gay Discrimination Ban — from The New York Times

Social Media & Workplace Technology

Self-Destructing Messages Enter the Workplace With Browser App — from Bloomberg Businessweek
Lawmakers seek to bar bosses from asking for Facebook passwords — from The Hill
Employees assume bosses track their work computers, survey finds — from the LA Times
Our Email Addiction: Can We Keep it From Following Us Home From Work? from TLNT
Ten Steps You Can Take to Avoid Social Media Meltdowns — from Social Media Strategies Summit Blog
Business Cloud Computing: Privacy Is Just As Important As Security — from ReadWrite
You’re Lawyers, Not Luddites: Why Attorneys Can’t Ignore Tech — from The Sociable Lawyer Blog

HR & Employee Relations

Employees: Better think twice before suing your employer — from Robin Shea’s Employment and Labor Insider
“Why Can’t We Get Rid of Bad Teachers?” — from Walter Olson’s Overlawyered
The modern rules for workplace romance — from Real Business
13 Things Every Teen Needs To Know About Workplace Rights — from Donna Ballman’s Screw You Guys, I’m Going Home
USERRA: Honor the Military by Obeying the Law Redux from Mike Haberman’s Omega HR Solutions
You’re probably making awful assumptions about Millennials in your workplace — from ZDNet
Dealing with mean girls — and boys — in the workplace — from Fox News
How Do I Deal With a Coworker’s Horrible Manners? — from Lifehacker

Wage & Hour

FLSA Lawsuits On The Rise — from Overtime Lawyer Blog
Employment Law Alert: Wage and Hour Suits on the Rise — from i-Sight Investigation Software Blog
Courts Make it More Difficult for Employees to Pursue Tip Theft by Employers — from Texas Employment Law Blog
Dear Evil Skippy: Will I Look Like A Slacker If I Take Paternity Leave? — from Evil Skippy at Work
Georgetown Law official exemplifies new stats on rise of breadwinner moms — from ABA Journal Daily News
Why Men Work So Many Hours — from Harvard Business Review
I Believe My Employee is Unfit to Return to Work. Can I Require a Full Medical Examination — from Jeff Nowak’s FMLA Insights

Labor Relations

President Obama Nominates Lafe Solomon to be NLRB General Counsel — from Wyatt Employment Law Report
Broad limit on appointments urged — from SCOTUSblog

Is your wellness program discriminatory?

2013-05-30T11:45:00.000-04:00

It is no secret that health care costs for employers and their employees are out of control in this country. Many employers have attempted to hold down these rising costs by offering wellness-program incentives — insurance premium reductions to employees who meet certain health-related incentives such as tobacco-use cessation, BMI goals, or minimum cholesterol levels.

Yesterday, however, the Obama administration made these wellness incentives more difficult for employers to implement. Pursuant to the Affordable Care Act, the administration issued final regulations on Incentives for Nondiscriminatory Wellness Programs in Group Health Plans [pdf].

Among other restrictions, these regulations require companies to provide “reasonable alternatives” to employees who cannot meet health benchmarks but still want the discounts. The regulations further clarify that this “reasonable alternative” standard is different than an ADA-required reasonable accommodation, and providing a reasonable alternative to achieve a wellness-program incentive does not mean that an employer has met its obligations under the ADA. Note that earlier this month, the EEOC held a public meeting discussing the treatment of employer wellness programs under the ADA.

These new rules will affect all group health plans for plan years beginning on or after January 1, 2014.

If you are among the many of employers that has implemented a wellness program, these regulations are required reading to ensure that your program meets these new nondiscrimination rules.

(an)G(el)INA

2013-05-30T08:02:00.000-04:00

The Earth stopped rotating on its axis earlier this month when Angelina Jolie announced that she is undergoing a voluntary double mastectomy. Her rationale? Because she carries the BRCA1 gene, she is 87 percent likely to contract breast cancer at some point in her life.

Have you heard of GINA, the Genetic Information Nondiscrimination Act? As Phil Miles points out on his Lawffice Space blog, Ms. Jolie “just became the poster-child for GINA.”

Among other things, GINA prohibits employers from:

making an employment-related decision with respect to an employee because of genetic information; or
requesting or requiring that an employee disclose their own genetic information, or that of a family member.

It is fortuitous for the EEOC that Ms. Jolie has done so much to raise the profile of genetic profiling, since earlier this month, that agency announced that it settled the very first case it ever filed alleging genetic information discrimination. In its lawsuit, the EEOC alleged that the employer violated GINA when it asked an employee for a family medical history as part of its post-offer pre-employment medical examination. The EEOC’s press release quotes EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Ms. Seely is correct. Even though GINA has been law for more the four years, it is seldom discussed or understood. Employers need to take this lesson to heart. Genetics—both an employee’s and that of one’s family members—is off limits in employment.

Photo by Georges Biard [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

This post originally appeared on The Legal Workplace Blog.

There are no magic words to invoke the FMLA

2013-05-29T08:21:00.000-04:00

The Family and Medical Leave Act does not require an employee to use the word “FMLA” to request leave under, and invoke the protections of, the FMLA. Instead, an employee only needs to do the following:

For foreseeable leave, an employee only needs to provide “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.”
For unforeseeable leave, an employee only needs to provide “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”

In either instance, this informal notification triggers an employer’s designation obligations under the FMLA.

How vague can verbal notice by an employee be to trigger an employer to consider the notice a request for FMLA leave? In Wiseman v. Awreys Bakeries LLC (6th Cir. 5/22/13) [pdf], the plaintiff, an employee with a history of back problems, verbally complained that he was “injured” and “couldn’t work.” The company fired him for unexcused absences, claiming that he provided no explanation or medical reason.

The appellate court reversed the trial court’s dismissal of the FMLA claim, finding that an issue of fact existed over whether the employee provided FMLA-qualifying notice. The court held that the employee’s verbal statement that he was “injured” and “couldn’t work,” coupled with the company’s knowledge of his history of back injuries and the employee’s request to see the company’s doctor, could lead a jury to conclude that the employee had invoked the FMLA.

Cases like Wiseman should rarely happen. The FMLA provides protections for employers who, in good faith, doubt whether the FMLA covers an employee’s request for time off. When there exists any doubt over whether an employee is seeking time off for a reason that could qualify under the FMLA, there is no harm in treating the request as one for FMLA leave. In fact, an employer has greater protection in an FMLA-covered scenario than not.

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

photo credit: ShellyS via photopin cc

“Fire me. … Make my day” does not equal protected concerted activity (thank god)

2013-05-28T07:57:00.000-04:00

The Rolling Stones famously sang, “You can’t always get what you want.” One employee recently got exactly what she wanted (and needed) from her employer, yet filed a claim anyway. After taking to Facebook and pleading to be fired, she sought the help of the NLRB, claiming that she had been fired in retaliation for protected concerted activity. Thankfully, the NLRB concluded that she should not be entitled to proceed with her case.

In a group discussion with some co-workers, the employee said the following about her employer:

“They are full of shit … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FUCK … FIRE ME. … Make my day…”

When an annoyed colleague took a print-out of the rant to management, the disgruntled employee was fired.

Earlier this month, the NLRB Office of General Counsel issued an advice memo [pdf], opining that a termination under these circumstances is legal, and recommended the dismissal of the unfair labor practice charge:

In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions. … These comments merely reflected her personal contempt …, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual “griping,” and boasting about how she was not afraid to say what she wished at work.

Even the NLRB had no sympathy for this devil of any employee. An employee who begs to be fired cannot seek satisfaction when her employer takes her up on her offer.

This case illustrates that a line of reasonableness does exist between protected concerted conversations about working conditions and a lone wolf spouting off at the mouth. Thankfully, the NLRB is not always a beast of burden for employers.

Regardless of the employer’s victory in this case, however, businesses should still tread carefully when considering terminating an employee for speech (online or offline) about working conditions. The NLRB remains active in this area, and a mis-step could prove costly (especially in light of Lafe Solomon’s recent re-nomination as general counsel of the NLRB).

For more on this case, you can read the following:

Eric Meyer’s Employer Handbook Blog — Employee posts “FIRE ME…Make my day…” on Facebook. And guess what?
Employer Law Report — When Employee Taunts Employer via Facebook to “FIRE ME. ...Make my day…” NLRB Memo Concludes the Employer Can Go For It

WIRTW #275 (the “reality bites” edition)

2013-05-24T08:14:00.000-04:00

Last night, Fox debuted its new reality show, Does Someone Have To Go?, which Entertainment Weekly bills as Survivor meets The Office. Here’s the premise:

Needless to say, the New York Times is not impressed, unflatteringly calling the show “a victory” for companies and horrible for employees:

The squabbles are petty, ill-informed and sometimes personal, and seemingly dredge up unacknowledged tensions around race and age…. The stakes, as they are presented, are dramatic. For signing up to be on this show, employees … run the risk of conflict, humiliation and, possibly, unemployment. (Presumably, these workplaces are not unionized.)

As for me, I was glued to the TV, and will be through this show’s run. Yet, I couldn’t help but think about the scope of the release agreement these employees had to sign before appearing on the show.

Did you watch? Share your opinion in the comments below, or on Twitter with the hashtag #WorkplaceReality

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

Discrimination

Dear Evil Skippy: Was It Harassment For My Boss To Talk My Underwear? — from Evil Skippy at Work
When an Employer Provides More Parental Leave to Mom than Dad, is this Gender Discrimination? — from FMLA Insights
Sixth Circuit Upholds Summary Judgment for Employers in Two Cases Brought by Terminated Pregnant Employees — from Employer Law Report
EEOC: no post-offer inquiries about family medical history — from Overlawyered
Inquiring about Family Medical History Violates Genetic Information Nondiscrimination Law — from Maryland Employment Law Developments
Pointers on avoiding Diabetes Discrimination — from Mike Haberman’s Omega HR Solutions
Lawffice Links - New EEOC Publications Galore! — from Phil Miles’s Lawffice Space
EEOC talks employer wellness programs; provides an ADA Q&A — from Eric Meyer’s The Employer Handbook Blog
A sanctions award in EEOC v. Spitzer, the “don’t have your lawyer investigate” case — from Warren & Associates Blog

Social Media & Workplace Technology

The Latest Social Media Concern for Employers — from WSJ.com
Can an LLC member violate the Stored Communications Act by accessing other members’ email? — from Internet Cases
Using Computer Forensics to Investigate IP Theft — from Law.com
SMBs embrace BYOD, but slow to manage mobile devices — from ZDNet
Act On Clarifying Ownership of Work-Related Social Media Accounts Before You Become “Dinner” — from Dan Schwartz’s Connecticut Employment Law Blog
Sitting on Big Data: The Evolution of the Mobile Workplace — from Innovation Insights

HR & Employee Relations

Do You Know the Seven Factors That Comprise “Just Cause”? — from Trade Secret / Noncompete Blog
What About Office Romances? — from Evil HR Lady
The Price Of Being Pregnant at Work — from HuffPost Live
Debunking The 'No Friends At Work' Rule: Why Friend-Friendly Workplaces Are The Future — from Forbes
Bullying bosses beware: Your targets may undermine you — from Minding the Workplace

Wage & Hour

USDOL "Misclassification" Focus Continues — from Wage and Hour Laws Blog
W.H.D.?: Here We Go Again … Independent Contractors Targeted Once More — from The Wage and Hour Litigation Blog
8th Cir: FLSA Plaintiffs Must Spell It Out — from Molly DiBianca’s Delaware Employment Law Blog
Proposed Overtime Legislation Passes House, Faces Uphill Battle in Senate — from Impact Litigation Journal
Wages, Salaries & Overtime – Oh My! 4 Myths About Employee Pay — from TLNT

Labor Relations

NLRB takes aim at employer electronic communications and social policies — from EmployerLINC
Senate Committee Approves President’s Nominations to the NLRB — from Wyatt Employment Law Report
It’s a Little Too Little: Is The NLRB Headed Towards Irrelevance? — from Employment Essentials

Until next week:

(Bonus points if you know the link between the new wave hit My Sharona, by The Knack, and this post.)

When state law conflicts with the EEOC on criminal background checks, who wins?

2013-05-23T07:56:00.000-04:00

Last year, the EEOC issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. While the Guidance was much more fair and balanced than many employer advocates (me included) expected, it does include some head-scratchers for businesses. One such conundrum is how regulated employers are supposed to act when across-the-board criminal background searches are required by state law, as the EEOC takes the position that a blanket requirement violates Title VII.

Per the EEOC:

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

How is an employer supposed to handle this conflict? Waldon v. Cincinnati Public Schools, currently pending in the Southern District of Ohio, may provide some future guidance.

That case concerns the application of Ohio H.B. 190, which became law in 2007. That law requires criminal background checks of all current school employees, regardless of whether their duties involve the care, custody, or control of children, and mandates the termination of any employee with a certain number of historical convictions, regardless of the convictions’ age.

Two African-American employees challenge that H.B. 190 has an unlawful disparate impact because of race. Both were terminated based on decades-old convictions. All told, the Cincinnati Public Schools fired 10 employees as a result of background checks conducted pursuant to H.B. 190; nine of the 10 fired were African-American.

It is early in the litigation of the Waldon case. The court denied the employer’s motion to dismiss.

First, it concluded that it was clear that the Plaintiffs pleaded a prima facie case of disparate impact.

Although there appears to be no question that Defendant did not intend to discriminate, intent is irrelevant and the practice that it implemented allegedly had a greater impact on African-Americans than others.

The existence of statistically significant disparate impact, however, if only the first step in the analysis. An employer can avoid liability if the challenged practice is justified by business necessity. While the court believed this issue to be “a close call,” it ultimately concluded that it could not make that call on a motion to dismiss:

Obviously the policy as applied to serious recent crimes addressed a level of risk the Defendant was justified in managing due to the nature of its employees’ proximity to children. However, in relation to the two Plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when Plaintiff Britton’s offense was insubstantial, and when both had demonstrated decades of good performance. These Plaintiffs posed no obvious risk due to their past convictions, but rather, were valuable and respected employees, who merited a second chance.… Under these circumstances, the Court cannot conclude as a matter of law that Defendant’s policy constituted a business necessity.

Talk about a tough position in which to place an employer. Does the employer violate state law or violate Title VII? Ultimately, I think the correct answer should be neither. Shouldn’t the need to follow state law provide the employer’s “business necessity?” If not, employers will be faced in the untenable position of following one law and violating the other.

photo credit: kevin dooley via photopin cc

This post originally appeared on The Legal Workplace Blog.

Email surveillance as evidence of retaliation

2013-05-22T08:03:00.000-04:00

Employees should not operate under any false ideas that they enjoy an expectation of privacy in their work email accounts. Just because an employer has the right to snoop through an employee’s email, however, does not mean the practice does not carry some degree of risk.

Consider, for example, Fields v. Fairfield County Board of Developmental Disabilities (6th Cir. 12/6/12). Fields claimed that her employer retaliated against her after it discovered an email she sent to some co-workers threatening a lawsuit against the Board. The court concluded that the email surveillance was insufficient evidence of pretext.

Simple enough? What if, however, the claim was that the company only started watching her email after it learned of the protected activity, and used evidence of misconduct in the email to support the termination decision. Could the email surveillance, in and of itself, be an adverse action sufficient to support a claim of retaliation? The legal standard for an adverse action sufficient to support a claim of retaliation is very broad. Anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” qualifies as a retaliatory adverse action. If you don’t regularly review employee email accounts, and only start examining an employee’s electronic activities after that employee engages in some protected activity, might that dissuade others from engaging in protected activity?

If you are going to enforce a policy or exercise some employer right (like surveillance of corporate email or computer systems), do it consistently, not selectively and only after an employee complains about discrimination. Otherwise, you could change a legal and reasonable act (e.g., email surveillance) into evidence of unlawful retaliation.

Social media is the digital water cooler

2013-05-21T08:27:00.000-04:00

Let’s say your business is located in a less-than-desirable neighborhood. Three of your employees engage in the following conversation on their personal Facebook pages:

Holli Thomas — needs a new job. I’m physically and mentally sickened.

Vanessa Morris — It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!! …

Vanessa Morris — And no one’s doing anything about it! Big surprise!

Brittany [Johnson] — “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris — hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!

Can you fire these three employees? If you answered yes, you just bought yourself an unfair labor practice charge with the National Labor Relations Board, at least according to Bettie Page Clothing (4/19/13) [pdf]. Per the NLRB:

The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether the Respondent was violating labor laws. Such conversations for mutual aid and protection are classic concerted protected activity.

Social media is today’s water cooler. Employees still might gather around the lunch table or coffee machine to gossip about work, but they are also just as likely, if not more likely, to carry over those conversations outside of the workplace through their personal social media accounts. If you wouldn’t fire an employee for a water-cooler conversation you happen to overhear, then don’t fire them for a similar conversation on a Facebook wall. In fact, you are much worse off with the social-media-based termination because the employee has a digital paper trail with which to hang you.

Employees gossip with and gripe to each other. Instead of firing these employees, maybe you need to look inward to figure out if their concerns are legitimate, and if there is something you can do about it.

[Hat tip: Employer Law Report]

Fired for suing an ex-employer? Court rejects public policy claim

2013-05-20T07:49:00.000-04:00

Carcorp hired Barry Elam to work in its finance department. A few months into his employment with Carcorp, Elam sued his prior employer, Bob McDorman Chevrolet, claiming that it had wrongfully fired him in retaliation for his cooperating with an investigation by the Ohio Attorney General into fraudulent credit applications. A year later, Carcorp fired Elam.

Elam then sued Carcorp, claiming that it wrongfully fired him in retaliation for his lawsuit against his prior employer, in violation of Ohio’s public policy.

In Elam v. Carcorp, Inc. (4/23/13), the appellate court affirmed the trial court’s dismissal of Elam’s wrongful discharge claim.

For the uninitiated, some background on wrongful discharge in violation of public policy claims under Ohio law. These claims act as an exception to the presumption of at-will employment permitting a claim when an employee is discharged or disciplined for reasons that contravene a clear public policy. To establish a claim that an employer wrongfully discharged an employee in violation of public policy, the employee must demonstrate all of the following:

A clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law.
Dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy.
Conduct related to the public policy motivated the plaintiff’s dismissal.
The employer lacked overriding legitimate business justification for the dismissal.

After an extensive analysis of Elam’s claimed public policy—the Open Courts provision in the Ohio Constitution—the appellate court rejected Elam’s public policy claim, on the basis that “Elam did not articulate any clear public policy that his termination from employment violated.”

In the final analysis, Elam did not demonstrate the Open Courts provision represents a clear expression of legislative policy barring an employer from discharging an employee as a result of the employee’s lawsuit against a third party. To hold otherwise would expand the public policy inherent in the Open Courts provision beyond the provision's clear meaning and infringe upon the legislature's duty to make and articulate public policy determinations.

While academically interesting, this case raises a more interesting practical consideration. These “public policy” retaliation cases often hinge on the creativity of plaintiff’s counsel to find a legislative or constitutional hook on which to hang the alleged public policy, and the court’s willingness to approve of the creativity. Indeed, the more creative the public policy, the more unpredictable the outcome of potential litigation. For this reason, employers should treat all employees complaining about anything in the workplace as ticking time bombs, as if their complaints are protected by some law or another. If a court later rejects a public policy claim, all the better.

WIRTW #274 (the “Dunder Mifflin” edition)

2013-05-17T07:48:00.000-04:00

Last night brought us the final episode of what may be the greatest ever satire of the American workplace—The Office. Seinfeld, that is how you do a series finale.

In its honor, I bring you one of my favorite clips from my favorite episodes from show’s nine-year run, Diversity Day. If this doesn’t make your employment law skin crawl, nothing will:

Here are 59 other reasons we’re going to miss The Office.

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

Discrimination

Want to cut the line at the Disney park? Call my disabled friend — from Walter Olson’s Overlawyered
“Bashful Bladder” As A Disability? Running Water The Accommodation? — from Employment Discrimination Report
Horniest boss ever? His employee still can’t prove sexual harassment — from The Employer Handbook Blog
Angelina Jolie and Employment Law — from Phil Miles’s Lawffice Space
Bad Credit Could Cost You a Job — from Nolo’s Employment Law Blog
EEOC Brings, Settles First Ever GINA Lawsuit — from Employer’s Law Blog
“My Prior Complaint Was One of the Reasons for the Adverse Employment Action”: Mixed Motive Theories for Retaliation Claims Under Title VII — from HR Defense Blog

Social Media & Workplace Technology

Social Media By the Numbers — from Social Media Strategies Summit Blog
How Can You Avoid Lawsuits While Using Social Media to Screen Applicants? 10 Steps to Consider — from The Emplawyerologist
Social media and nonsolicitation agreements — from Technology for HR

HR & Employee Relations

Asking to telework when you have your period — from Ask a Manager
Should these employees have been terminated? Tell us what you think! — from Robin Shea’s Employment & Labor Insider
Try Acting More Like a Kindergartner — from Evil HR Lady writing at Inc.com
Dear Evil Skippy: Can I Refuse To Hire Someone With Tattoos? — from Evil Skippy at Work
Hipster Bias > Another HR Hurdle? — from Fistful of Talent
Fired For Voicing My Concerns — from Work Place Coach Blog News
Using Standard Form Employee Handbooks; Damned if You Do, Damned if You Don’t — from damnedif
Here’s Why Bullies Are Taking Over Your Organization — from TLNT

Wage & Hour

To Be Or Not To Be An Independent Contractor — from San Antonio Employment Law Blog
Congressional Roundup: Republican Comp Time Bill Gets a Vote — from Bloomberg BNA
“They Owe You” Does Not Always Mean You Can Withhold — from Trade Secret / Noncompete Blog
FLSA Compliance: Dispelling the Great Myths — from HR Daily Advisor
Employers Play Whack-A-Mole with Internship Lawsuits — from The Wage and Hour Litigation Blog
Is Time Spent Traveling to Trainings Outside of Normal Working Time — from Smart HR Manager

Labor Relations

“The N.L.R.B.’s Contested Poster” — from How Appealing
Senate Republicans Call for Hearing on NLRB's Budget Request — from Wisconsin Employment & Labor Law Blog

Patriots cutting of diabetic player raises serious ADA issues

2013-05-16T07:42:00.000-04:00

The New England Patriots recently cut defensive tackle Kyle Love. This news is not worthy of consideration on an employment law blog until I tell you the reason the Pats cut him. According to FoxNews, the Pats cut him two weeks after his diagnosis with Type 2 diabetes out of a concern over his “recovery time.”

If I’m Kyle Love’s agent, I’m finding him the best employment lawyer possible to argue that the Patriots cut him because of his diabetes, a protected disability.

Yesterday, the EEOC conveniently published guidance on the employment rights of people with specific disabilities. One of the specific disabilities for which the EEOC published new guidance is diabetes.

According to the EEOC, there is little doubt that diabetes is a disability protected and covered by the ADA:

As a result of changes made by the ADAAA, individuals who have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function. Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin, medication, or diet controls a person’s blood glucose levels. An individual with a past history of diabetes (for example, gestational diabetes) also has a disability within the meaning of the ADA. Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of diabetes or because the employer believes the individual has diabetes.

Given the timing of the Patriots’s decision, coupled both with its apparent failure to offer any kind of accommodation for Kyle Love’s disability, and the stated reason for its decision, Kyle Love appears to have a strong disability discrimination case. Had the Patriots called me, I would have counseled against cutting him, at least at this time and in this manner.

Consider Kyle Love’s problem in light of this hypothetical, provided by the EEOC in its diabetes guidance:

When an actor forgets his lines and stumbles during several recent play rehearsals, he explains that the fluctuating rehearsal times are interfering with when he eats and takes his insulin. Because there is no reason to believe that the actor poses a direct threat, the director cannot terminate the actor or replace him with an understudy; rather, the director should consider whether rehearsals can be held at a set time and/or whether the actor can take a break when needed to eat, monitor his glucose, or administer his insulin.

It is an understatement to characterize this termination—undertaken without any apparent consideration of whether the team could accommodate the diabetes—as high risk.

Jeffrey Nye made me aware of this story on Twitter last night, and asked, “The Patriots cut Kyle Love because he has diabetes. How can they do that?”

They can’t (or at least shouldn’t be able to in the manner in which they did it). It would not surprise me in the least if, given the high profile nature of this employment decision, the EEOC takes up Kyle Love’s cause to further its mission of disability-rights awareness.

Employee vs. independent contractor: do you know the difference

2013-05-15T07:44:00.000-04:00

Employers take a risk when they classify someone performing services for them as an independent contractor instead of an employee. Because employers owe contractors far fewer obligations than employees, employers risk each of the following if a court determines that a mis-classification occurred:

Unpaid overtime.
Unpaid taxes.
Un-provided benefits.
A discrimination claim, or claims under other laws that protect employees but not contractors (i.e., the FMLA).

Do you know, however, how to spot the difference? Troyer v. T.John.E. Productions, Inc. [pdf], decided yesterday by the 6th Circuit, provides some insight.

The issue in the case was whether the company failed to pay overtime to three individuals who performed road crew services (setting up and breaking down displays) at the company’s collegiate and corporate events. The court determined that the company had mis-classified them, and owed them unpaid overtime as employees:

Plaintiffs testified that their working relationship with Defendants was relatively permanent, they worked hundreds of hours of uncompensated overtime over several months, and that Defendants exercised strict control over their schedule and day-to-day activities while out on the road. Defendants countered that Plaintiffs worked on a job-by-job, independent contractor basis, that the Plaintiffs had a great amount of autonomy regarding how they completed their work.

In determining whether an worker is an employee or an independent contractor, the IRS looks compares the degree of control exerted by the company to the degree of independence retained by the individual. Generally, the IRS examines this relationship in three ways:

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

If you are considering classifying someone performing services for you as an independent contractor, your answers to these three questions will determine whether that individual is a bona fide contractor, or instead, is a employee. When in doubt, err on the side of caution. The government applies these tests aggressively to find employee-status whenever it can. You should too, and the risks are too high to make a mistake.

Ohio Employer's Law Blog

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