WIRTW #279 (the “stand your ground?” edition)

Having recently settled a nasty harassment case on the day of trial, I read with great interest Molly DiBianca’s post, Why Employers Settle Lawsuits, at her Delaware Employment Law Blog. One of the key reasons Molly provides to consider settlement is the employer’s ability to return to normal:

Often times, employers find that the most attractive part of settlement is the ability to put an end to the drain on resources that litigation absolutely involves. Litigation is costly in attorney’s fees and other expenses. But there are other critical costs, too, including the time key decision makers must devote to the case and the general distraction that it causes in the workplace. Every hour spent in depositions and discovery is an hour that cannot be devoted to achieving the organization’s objectives. I’ve never had a client who didn’t take a deep sigh of relief once the case was resolved and they realize they’re able to return to running their business.

Molly’s thoughtful post is worth reading by any business facing the decision of whether to stand its ground and litigate, or move on and settle.

I’ve also previously covered this issue, in Fight or flight? When an employee sues you, should you litigate or settle?

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

Discrimination

• Vance v. Ball State: the press miscoverage begins — from Walter Olson’s Overlawyered
• Are Employers Racist for Conducting Employment Background Checks? — from employeescreenIQ Blog
• The Government Checks Criminal Records. Why Can’t Private Employers? — from Forbes
• When a hostile work environment isn’t a hostile work environment — from Eric Meyer’s The Employer Handbook Blog
• Breast Feeding on the Job — Is a Mother Protected? — from Maryland Employment Law Developments
• What Not To Do When An Employee Is Pregnant — from Employer’s Corner Blog
• Q&A: Five Areas of Employment Discrimination Law Sparking Scholarly Interest — from Bloomberg BNA
• The Employment Non-Discrimination Act might actually pass in 2013 — from Employment Law Bits
• Paula Deen, Racism and Employment Lawyers — from The Cynical Girl

Social Media & Workplace Technology

• Facebook Introduces Instagram Video Which Promises New Social Media Headaches for Corporations — from from Technology Law Source
• Can You Control Your Employees’ LinkedIn Profiles? — from Evil HR Lady, Suzanne Lucas
• “Tweet” becomes an official word — from Ragan
• The Five Rudest Things You Can Do Online — from Wall Street Journal
• Laid-Off ESPN Employee Of 26 Years Fights Back On Facebook — from AOL Jobs

HR & Employee Relations

• Can I fire an employee by phone or email? — from Ask a Manager
• The Internal Struggle When We Must Make Make Ridiculous Terminations — from TLNT
• The New Rules of Tattoos In the Workplace — from The HR Capitalist, Kris Dunn
• How to “Listen In” to Workforce 2.0 — from Fox Business
• Rogue Employees - What to do? — from Smooth Transitions

Wage & Hour

• If Unpaid Interns Don’t Like Their Bosses, They’ll Hate Justice Alito — from Above the Law
• Smartphone Overtime: The FLSA Knows No Bounds — from Corporate Counsel
• The Perils of “Rewarding” FLSA Exemption — from Compensation Force
• Why the New Internship Ruling is Bad For College Students — from Inc.
• Employer Obligations Under the Affordable Care Act — from Inhouse Blog
• How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits? — from Jeff Nowak’s FMLA Insights

Labor Relations

• The Next Frontier for NLRB: Videos & Photos in the Workplace? — from Dan Schwartz’s Connecticut Employment Law Blog
• Union 2.0: how a browser plug-in is organizing Amazon's micro-laborers — from The Verge
• SCOTUS to Decide Noel Canning (NLRB Recess Appointments) — from Phil Miles’s Lawffice Space
• Cheat Sheet: A guide to the NLRB recess appointment controversy — from Inside Counsel

Happy 75th Birthday, FLSA

75 years ago yesterday, President Franklin D. Roosevelt signed the Fair Labor Standards Act. By establishing a minimum wage, setting an overtime premium for any hours worked in excess of 40 in any week, and creating child-labor protections, the FLSA is one of the most important pieces of employment legislation ever enacted.

In the 75 years since its passage, the FLSA has morphed into one of the most confounding statutes with which employers must comply.

To celebrate the FLSA’s Diamond Jubilee, please take a walk through 10 of my greatest wage-and-hour hits from the archives (in no particular order):

1. Taking issue with the term “wage theft”
2. We ♥ our phones, but should employees be paid for using them off-duty?
3. Are employers screwing up the FLSA’s lactation mandate? Probably not.
4. The 5 little words that will cause your company a huge headache
5. SCOTUS rules pharmaceutical reps are exempt outside salespeople
6. “Eat Shop Sleep” underscores the importance of proactively addressing wage and hour issues
7. “If I could press a button and instantly vaporize one sector of employment law?”
8. Paying overtime to salaried, non-exempt employees
9. Administrative employees vs. the administrative exemption
10. The ticking time bomb of overtime

 

 

Vance v. Ball St. narrows employer liability for harassment

In its prologue to yesterday Supreme Court opinion in Vance v. Ball. St. Univ. [pdf], Justice Alito, writing for the five-member majority, frames the importance of the issue facing the Court:

Under Title VII, an employer’s liability for such har­assment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employ­ment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the em­ployer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unrea­sonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Under this framework therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.

Ultimately, the Court held that to qualify as a supervisor for purposes of vicarious liability for harassment, one must be able to impart a “significant change in [the] employment status” of the plaintiff:

An employer may be vicariously liable for an employee’s unlawful harassment only when the em­ployer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “sig­nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits.”

Make no mistake, this is a huge victory for employers. Vicarious liability for unlawful harassment is a huge problem for employers. It means that that if the unlawful harassment occurred, the employer is liable, whether or not it knew about it, should have known about, or even took efforts to stop it from occurring. This case limits that vicarious liability only to those are in an actual position to affect the plaintiff’s terms and conditions of employment/

The majority made it clear that it was drawing this bright line to aid parties embroiled in harassment litigation:

The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervi­sor, and in others, the alleged harasser’s status will be­ come clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolv­ing the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.

In other words, the court’s bright-line rule is meant to weed out for resolution those cases in which vicarious liability exists. As Kevin Russell correctly pointed out at SCOTUSblog, these cases “will provide judges greater authority to prevent the case from getting to a jury in the first place.”

To ensure that employers avail themselves of the benefits of this decision as often as possible, it is best that businesses review organizational charts, chains of authority, and job descriptions. Businesses should spell out, in detail, those supervisors who have the authority to effect a “sig­nificant change in employment status.” They should also spell out which supervisors have the express authority to hire, fire, demote, or reassign which employees. Businesses should spell out which supervisors lack that authority. By establishing clear chains of authority, employers will place themselves in the best position to limit the risk of vicarious liability.

The importance of Vance as a win for employers cannot be understated. When you couple this decision with the Court’s retaliation decision in Nassar, it’s fair to say that yesterday, employers had their best day in recent memory at the Supreme Court.

BREAKING: SCOTUS decides on but-for causation standard for retaliation under Title VII

In a busy, end-of-term day at the Supreme Court, the Court has issued its decision in University of Tex. S.W. Med. Ctr. v. Nassar. In this 5-4, partisan-line decision, the Court decided that but-for causation is the appropriate standard for retaliation claims under Title VII.

Thus, going forward, an employee cannot succeed on a Title VII retaliation claim without proving that the employer would not have taken the adverse employment action but for an improper, retaliatory motive.

Needless to say, this is huge win for employers by narrowing an employee’s likelihood of proving retaliation. It eliminates mixed-motive retaliation. Retaliation must be the cause for an employee to prove retaliation.

Aside from its legal implications, this case is significant because it is the first retaliation case that this Court has decided in favor of the employer.

Perhaps the most curious part of the opinion, however, comes from Justice Ginsberg, who calls for passage of a “Civil Rights Restoration Act” in light of this opinion and the opinion in Vance. Given the political climate in Congress, I’d say this is unlikely. The drumbeats of employment-law reform, however, will begin to beat loudly from the left.

The Court’s opinion is available for download here.

BREAKING: SCOTUS issues decision in Vance v. Ball St. Univ.

Hot off the presses, the Supreme Court just issued its decision in Vance v. Ball St. Univ.

Via SCOTUS Blog, the Court held that “an employer is a supervisor for vicarious liability under Title VII only if she has the power given by the employer to take tangible employment actions against the victim.”

The opinion was 5-4, split down partisan lines.

You can download a pdf of the opinion here. The case background is here and here.

I’ll have analysis of the opinion later today.

Employee medical information and social media

Hopefully, you know that the ADA protects employee medical information as confidential. According to the EEOC:

The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.” Regardless, these examples potentially implicate the ADA’s confidentiality provisions.

What can a company do to guard against this type of ADA violation? Businesses should build confidentiality protections into their social media policies. Just as companies should be reminding employees that employee medical information is confidential and should only be disseminated on a need-to-know basis, so should they carry over those protections to their social media policies.

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. I can almost guarantee that a violation of the ADA’s confidentiality protections is the furthest from a manager’s or supervisor’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, some training—on this issue could save you a headache in a disability discrimination lawsuit down the road.

Title VII does not give employees the right to proselytize

I believe that everyone’s relationship with God (whether you call that deity Yahweh, Jesus, Allah, Vishnu, Buddha, or something else) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today’s discussion, which centers on Hall v. Tift County Hosp. (M.D. Ga. 6/10/13). In that case, the court rejected an employee’s religious discrimination case stemming from discipline for sending a Christian-themed email sent to a gay co-worker.

Pamela Hall, a Baptist, learned that one of the her co-workers, Amanda Dix, was a lesbian. Believing that she had a duty to save Dix from the “sin” of “homosexuality,” Hall placed a pamphlet, entitled, “How Should Christians Respond to ‘Gay’ Marriage?” in Dix’s locker. Rightfully concerned that Dix would ignore the pamphlet, Hall sent her a follow-up email, which said in part:

I saw that book in Kentucky when we went to the creation museum. I don’t want to hurt your feelings but I felt led to leave that for you and I would not be a true friend if I ignore the responsibility that God has left for his children to share the message and hold each other accountable…. Sodomy is a sin, gay people live in sin. It is not about self gratification…. When we are in God’s will we will WANT to live right and live for him and do what the Bible says and that is to go and tell! Everything else is not important…. There is only one way to heaven.

Dix complained to management, which investigated and demoted Hall from her supervisory position. In her lawsuit, Hall alleged that when the HR Administrator communicated the demotion, she said, “We could not share our faith at work. We could not talk about Jesus at work.”

Hall claimed that discipline for discussing religion at work discriminated against her because of her religion. In dismissing Hall’s case, the court disagreed.

Other employees have been disciplined for sending offensive or harassing emails. Two employees were terminated in April of 2009 for distribution of racial, ethnic, and religious materials in the form of an email that was offensive to other employees. The email makes specific reference to Islam, blacks, black Muslims, and Hispanics….

The question is whether Plaintiff was discriminated against because of her religion — was she discriminated against because she is a Christian? Without producing evidence of a non-Christian employee in the same job being treated differently after engaging in the same activity, Plaintiff cannot establish a prima facie case.

As I’ve said before, religious proselytization does not belong in the workplace. If you permit one employee to share his or her religious views in the workplace, you will have a difficult time disciplining or terminating another for the same reason. Employers and their employees should keep religion where it belongs—in the home and in places of worship.

photo credit: danny.hammontree via photopin cc

Classification of obesity as a “disease” has huge employment law implications

News broke yesterday that the American Medical Association voted to re-classify obesity from a condition to a disease.

Conventional wisdom has been that normal, run-of-the-mill obesity, unlinked to an underlying medical condition such as diabetes, is not a disability protected from discrimination by the Americans with Disabilities Act.

This decision by the AMA, however, will likely flip that conventional wisdom on its head. The ADA, as amended in 2009, is so broad that it covers virtually any diagnosed medical condition as a “disability.” Now, employers will have to consider reasonable accommodations for anyone with a body mass index of 30 or over. Also, anyone who appears to have that BMI will have potential protections from terminations and other adverse actions related to that perceived “disease.”

While this expanded coverage of the ADA is problematic, this issue raises a deeper, more troubling problem. The goals of the ADA are commendable. Yet, as we expand the ADA to cover non-traditional medical conditions, a backlash is inevitable. Protecting the unworthy will erode the desire to protect the worthy. Every time an overweight worker sues for disability discrimination will cost those suffering from illnesses that deserve to be protected.

Congress was correct in amending the ADA to restore the original intent of the statute. Obesity protections, however, illustrate that perhaps those amendments went too far.

Paula Deen gave the worst deposition ever

Until now, celebrity chef Paula Deen was best known for high cholesterol and high incidence of diabetes. After this week, however, she might now be better known as the worst deponent ever.

Ms. Deen was recently deposed in a race discrimination case brought by a former employee. Among her testimonial gems, according to Talking Points Memo (which includes a copy of the full deposition transcript):

• Deen describes her dream restaurant: “I remember telling [my employees] about a restaurant that my husband and I had recently visited. And I’m wanting to think it was in Tennessee or North Carolina or somewhere, and it was so impressive. The whole entire wait staff was middle-aged black men, and they had on beautiful white jackets with a black bow tie. I mean, it was really impressive. And I remember saying I would love to have servers like that, I said, but I would be afraid that somebody would misinterpret.”
• Deen details nice ways to use the N-word: “We hear a lot of things in the kitchen, things that they — that black people will say to each other. If we are relaying something that was said, a problem that we’re discussing, that’s not said in a mean way.”
• Deen responds to whether jokes using the N-word are hurtful: “That’s kind of hard. Most — most jokes are about Jewish people, rednecks, black folks. Most jokes target — I don’t know. I didn’t make up the jokes, I don’t know. They usually target, though, a group. Gays or straights, black, redneck, you know, I just don’t know — I just don’t know what to say. I can’t, myself, determine what offends another person.

As for me, I’m saving a copy of the transcript to use with my clients as the example of how not to perform at a deposition.

Employment Law Blog Carnival: The Summer Blockbuster Edition

It’s hard to believe, but the summer blockbuster—the high budget, slickly marketed, big action, and bigger box-office-return movie that has everyone talking—was born 38 years ago tomorrow. On June 20, 1975, Jaws hit theaters. It earned $470 million total, which, I don’t have to tell you, is a lot of chum, especially in 1975 dollars.  In hindsight, Jaws changed the film industry by changing how we go the the movies. There had been plenty of movies before Jaws that made lots of money, but after Jaws, movie studios began to plan their entire annual release schedule around the release of one big summer movie.

In honor of this week marking the anniversary of Jaws, I present the Summer Blockbuster edition of the Employment Law Blog Carnival.

Jaws (1975): $470,653,000 total worldwide box-office 

Is there anything scarier than a the world’s biggest great white shark terrorizing a sleepy New England beach community? How about reviewing 403(b) plan documents? Yikes! According to Employee Benefits Unplugged, you might be able to put that fear away, as the IRS Paves the Way for “Boilerplate” 403(b) Plan Documents.

 

Star Wars (1977): $775,398,007

Despite the tense battle between Darth Vader and Obi-Wan Kenobi in the original trilogy’s original film, you could sense the mutual respect that rested at the heart of their complicated relationship. At The HR Bartender, Sharlyn Lauby (along with yours truly) shares how Employee Respect Is an Unfair Labor Practice.

 

Raiders of the Lost Ark (1981): $389,925,971 

In the original Raiders…, Indiana Jones had to overcome some spectacular traps. None is more famous, though, than the giant boulder that chased him out of the cave in the film’s opening sequence. Of course, Indy escaped. The Emplawyerologist helps you avoid the 10 most common pitfalls of the I-9 form.

 

E.T. the Extra-Terrestrial (1982): $792,910,554

Is there anything more beautiful than E.T. healing Elliot’s finger? Ask Mike Haberman, who, over at Omega HR Solutions, offers us The Good, the Bad and the Ugly about Hiring only Beautiful People.

 

Ghostbusters (1984): $291,632,124

I ain’t afraid of those ghosts. Apparently, the 3rd Circuit ain’t afraid of those NLRB recess appointments, according to Third Circuit Agrees with Noel Canning; Is the 2nd Court to Invalidate NLRB Recess Appointments from Employment Essentials.

 

Back to the Future (1985): $383,874,862 

Is there anything more depressing that traveling 30 years in the past only to find out that you mom has the hots for you? Ask Heather Bussing, who, over at The HR Examiner, writes about Depression and Work.

 

Top Gun (1986): $356,830,601 

You will be the top gun of employers if you document your employees’ performance and disciplinary problems (says CPEhr’s Small Biz HR Blog), successfully enforce termination clauses in employment agreements (says First Reference Talks), and provide for your employees bad-mouthing your company online (says Jessica Miller-Merrell’s Workology).

 

Batman (1989): $411,348,924 

“Where does he get those wonderful toys,” asks Jack Nicholson’s Joker. Some employers feel like the joke is on them when dealing lately with the EEOC. John Holmquist’s Michigan Employment Law Connection shares some insight into the Agency’s thought process in A conversation with the EEOC.

 

Indiana Jones and the Last Crusade (1989): $474,171,806

The third installment in the saga of Indiana Jones concerns the quest for the Holy Grail, the mystical chalice out of which Jesus supposedly drank at the Last Supper. Blogging4Jobs, in Creating a Company “Bible” Can Save Time and Attorney’s Fees, suggests that your company create its own grail of best practices and corporate knowledge to aid your attorney in representing you in litigation.

 

Jurassic Park (1993): $969,851,882 

You want scary? How about being chased by an honest to goodness T-Rex? Or, courtesy of Robin Shea’s Employment & Labor Insider, Is your reason for termination honest, logical, and complete? If not, you may get a scary result in your discrimination case.

 

The Lion King (1994): $951,583,777 

The circle of life starts with pregnancy. Eric Meyer’s The Employer Handbook shares the most cockamamie excuse evah for firing a pregnant employee.

 

Finding Nemo (2003): $921,743,261

Dory tried to talk to the whale. She should have listening to its warning. Fitzpatrick on Employment Law reports on a different type of warning, in Fourth Circuit Holds That Supervisor’s “Warning” Constitutes Adverse Action.

 

The Dark Knight (2008): $1,004,558,444 

The Dark Knight has some spectacular violence, most of which is wrought by the film’s amazing antagonist, The Joker. How do you handle home-grown violence that permeates your workplace? Ask the author of this piece at Musings, discussing a Victim of Domestic Abuse Fired from Teaching Job.

 

Toy Story 3 (2010): $1,063,171,911

I live in a Toy Story world. Just ask my almost-five-year-old, Donovan, and his collection of a few-dozen Buzz Lightyears of various sizes and features. For this reason, no list of summer blockbusters compiled by me would be complete without including the most successful animated film of all time, Toy Story 3. The movie concerns a jail break from Sunnyside Daycare by Andy’s beloved toys. If they were real criminals, and the city of Seattle had its way, employers would be limited in learning of their conviction records, says Washington Workplace Law’s Seattle Bans Consideration of Criminal Background in Early Stages of Hiring Process.

 

Black Swan (2010): $329,398,046

Okay, so Black Swan neither premiered in the summer, nor is it properly classified as a blockbuster (although $300+ million in international box-office and a Best Actress Oscar for Natalie Portman is nothing to sneeze at). There is no movie, though, more appropriate to discuss the recent happenings with the legality and illegality of unpaid internships. See Black Swan Unpaid Interns Win FLSA Claim from Phil Miles’s Lawffice Space, and Top 6 Signs Your Unpaid Internship Should Be Paid from Donna Ballman’s Screw You Guys, I’m Going Home.

 

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Robin Shea, the author of the fabulous Employment & Labor Insider, will host next month’s Employment Law Blog Carnival, on July 17. If you want to participate, email her a link to your employment-law-related blog post by July 12. If you want to host a future edition of the Carnival, email its curator, Eric Meyer.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #279.

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

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:

1. 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.
2. 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:

Fox Searchlight case confirm that unpaid interns are a dying breed

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)

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:

• The Kindergarten Edition
• The 007 Edition

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

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.

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?

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

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.

1. 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.
2. 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)

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

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:

• Don’t forget these 5 security issues in your BYOD policy
• 10 thoughts for your mobile device policy

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

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

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

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