NLRB ALJ upholds workplace ban on recording devices

Two months ago I wrote the following, concerning whether employers should be thinking about implementing bans on employees using recording devices in the workplace:

If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy? Unless, of course, the NLRB gets its way and renders these policies per se illegal.

At least as to the last point (the legality of such bans under the National Labor Relations Act), we now have the beginnings of an answer, via the decision of an NLRB Administrative Law Judge (the finality of which depends on whether the union appeals the decision to the full Board in Washington D.C.).

In Whole Foods Market, Inc. (NLRB Case No. 01-CA-096965 10/30/13) [pdf], the union challenged the following no-recording policy:

It is a violation of Whole Foods Market policy to record conversations with a tape recorder or other recording device (including a cell phone or any electronic device) unless prior approval is received from your store or facility leadership. The purpose of this policy is to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.

Violation of this policy will result in corrective action up to and including discharge.

The ALJ concluded that this policy did not violate the rights of the employees of Whole Foods to engage in protected concerted activity under the National Labor Relations Act:

I have found no cases, and none have been cited, in which the Board has found that making recordings of conversations in the workplace is a protected right…. Even if recording a conversation is a protected right, the Respondent is entitled to make a valid rule, such as the one in question here, to regulate its workplace, and in doing so, prohibit such activity….

The rule does not prohibit employees from engaging in protected, concerted activities, or speaking about them. It does not expressly mention any Section 7 activity. The only activity the rule forbids is recording conversations or activities with a recording device. Thus, an employee is free to speak to other employees and engage in protected, concerted activities in those conversations….

There is no basis for a finding that a reasonable employee would interpret this rule as prohibiting Section 7 activity.

In light of this decision, what is an employer to do?

1. Review any existing workplace recording policies to ensure that the stated reasons for the policy is clear. For example, in Whole Foods, the company relied on the protection of “candor and forthrightness in employee opinions.”

2. Do not institute a new recording ban, or amend an existing policy, in response to union activity.

3. Do not apply a recording ban to limit or prohibit the recording of protected Section 7 activity (wages, benefits, terms and conditions of employment, union issues, etc.).

4. Limit the prohibition to working time and work spaces.

This case offers hope to employers that there exists a more reasonable analysis of the application of Section 7 rights to workplace policies other than suggested by the Board’s recent actions.

Is the denial of paid paternity leave discriminatory?

ABCNews.com is reporting that a CNN reporter, Josh Levs, has filed an EEOC charge against Time Warner challenging its family leave policy as discriminating based on sex.

Levs, whose wife just gave birth to their third child, claims that his employer treats biological fathers differently. He claims that Time Warner’s policy permits 10 weeks of paid leave to women who give birth to children, or male and female parents following adoption or surrogacy. Biological fathers, on the other hand, are limited to two weeks of paid leave. This treatment, Levs says, discriminates against him as a man.

On his Tumblr, Levs makes a compelling argument for the unfairness of Time Warner’s policy:

If I were a woman, but other elements of my situation were the same — I was still with the same woman (so that would be a same-sex relationship), and she gave birth to our child, legally I would have to adopt in order to be co-parent. I would then have the option of 10 weeks off, paid.

Or how about this: If I gave my child up for adoption, and some other guy at Time Warner adopted her, he would get 10 weeks off, paid, to take care of her. I, however, her biological father, can’t.

The visceral reaction to a story such as Levs’s is to say, “Time Warner is treating men and women differently; therefore, it’s sex discrimination. Case closed.” The question, however, isn’t whether the policy is fair, but whether it’s legal.

There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy. As Time Warner points out, its policy provides 10 weeks of paid leave, more generous than the medical standards and the FMLA’s guarantee of unpaid leave.

Yes, Time Warner’s policy can lead to absurd results in extreme situations, as Levs points out. But, before we jump the gun and lynch the company from the sex-discrimination gallows, we need to consider that there might be an explanation that justifies its policy other than discrimination.

An endgame for ENDA?

Today could prove to be a historic one for civil rights. According to reports, the Senate is likely to vote later today on the Employment Nondiscrimination Act [pdf]. ENDA, as it’s more commonly known, would amend Title VII to include protections for sexual orientation and gender identity. Early reports indicate that it could have enough support to pass in the Senate (even my home-state Republican Senator, Rob Portman, has indicated he may vote for it). Whether it can pass the Republican-controlled House and make it to President Obama’s desk for signature is another story. Trying to do his part, President Obama has penned an article for the Huffington Post urging both houses of Congress “to vote yes on ENDA.”

Those who have read my earlier thoughts on ENDA know that I’ve long preached that I believe it’s shameful that in 2013 there still exist minorities against who the government says it’s legal to discriminate. Critics of ENDA argue that it’s not necessary to impose legislative burdens on employers because most already prohibit this form of discrimination via their own internal policies, or because state and local jurisdictions that have passed similar laws do not report an increase of claims.

To these critics, I say that you miss the point. Anti-discrimination laws that exclude sexual orientation and gender identity suggest that these forms of discrimination are permissible. Additionally, while I look forward to embracing the day that all forms of discrimination cease to exist, I would not argue for the abolition of all anti-discrimination laws if that were to occur. Instead, I would argue that the laws are working, and are needed as a deterrent to maintain the status quo.

Perhaps Apple CEO Time Cook put it best in a Wall Street Journal Op-Ed urging for ENDA’s passage:

So long as the law remains silent on the workplace rights of gay and lesbian Americans, we as a nation are effectively consenting to discrimination against them.

As an advocate for employer rights, it’s rare that I’m in favor of increased regulations on businesses. Yet, this legislation is a no-brainier. As we approach the 50th anniversary of Title VII, now is the time to tell our workers that we, as a nation, support equality among all, including the LGBT community. Otherwise, the very principle upon which our country was founded (that all people are created equal) is nothing but a sham.

I will update the blog after the Senate holds its vote on ENDA.

WIRTW #295 (the “flu” edition)

Flu season is upon us. Do you know, that according to the Walgreens Flu Impact Report [pdf], U.S. adults missed 230 million work days during last year’s flu season? Some additional findings of note:

• In 2012 – 2013, the flu cost U.S. employers $30.4 billion
• Employees missed, on average, three days of work because of the flu
• Three out of four respondents indicated they were personally impacted by the flu last year

What can you do about this? You likely can require your employees to receive flu shots, unless an ADA disability or sincerely held religious belief precludes one from receiving the vaccine. Better yet, offer vaccinations free of charge to your employees, right in your workplace. The cost of the vaccines and a nurse to administer them will pay for itself if it keeps even one employee from missing work.

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

Discrimination

• Dear Evil Skippy: An Employee Says She Will Sue If We Observe “Satan’s Halloween” — from Evil Skippy at Work
• Don't Forget About Religious Discrimination When Throwing Your Office Halloween Party — from Workplace Fairness
• Target Wants to Hire More Ex-Offenders? Minnesota-based Company is Banning the Box — from employeescreenIQ Blog
• How not to respond when an employee complains about sexual harassment — from Eric Meyer’s The Employer Handbook Blog
• Deaf Applicant’s Rights Violated, EEOC Says in Announcing ADA Settlement With Toys “R” Us — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• On our wearable technological future workplace — from Steve Boese’s HR Technology
• Your Employees Are (Still) Stealing Your Data — from Molly DiBianca’s Delaware Employment Law Blog
• Anonymous Tweets Result in High Profile Termination — from netWORKed Lawyers
• What is the right social media policy for your company? — from Ragan.com
• This Map Shows State-by-State Penalties for Texting While Driving — from Lifehacker
• Ohio Teacher Goes On Racist Facebook Halloween Rant — from from Gawker

HR & Employee Relations

• “Yes, It’s Legal.” But Is It a Good Idea? — from Dan Schwartz’s Connecticut Employment Law Blog
• Motel-sex injury doesn’t merit workers’ compensation, Australian high court rules — from ABA Journal Daily News
• 8 HR Policies Every Startup Should Have in Place — from MonsterThinking
• 5 hiring practices you should stop today — from Ask a Manager
• Workplace “boo”-boos – when Halloween in the office gets scary — from HR idiot
• Enforceable Noncompete Agreement Key to $2 Million Judgment Against Former Employee — from Michigan Employment Law Advisor
• Trade Secret Protection: Tips for Protecting Your Company’s “Secret Sauce” — from In-house ACCess

Wage & Hour

• Indefinite Leave — from Work Place Coach Blog News
• Obamacare Individual Mandate Extension — from Phil Miles’s Lawffice Space
• FLSA Investigations Result In Criminal Convictions — from Wage and Hour Laws Blog

Labor Relations

• Rule Against Non-Union Workplace “Disruptions” Can Run Afoul of NLRA — from Currents: Hot Topics in Employment Law
• Employees with Smartphones: An Employer’s Nightmare; the NLRB’s Dream — from Matt Austin Labor Law

How to avoid turning your costume party into an HR nightmare

Today is Halloween. Truth be told, Halloween is one of my least favorite holidays. It always has been and always will be. I never liked it, even as a kid. Sure, all the candy was fun, but I just never got into the whole dress-up thing. As an adult, I like it even less. Not to be a Halloween scrooge, but I can’t even get into the holiday for my kids (this year, going as Mike Wazowski and a rock star), although I trudge though it for them.

A lot of people are into Halloween, and some are really into Halloween. It’s the holiday on which we spend more than any holiday other than Christmas. And, a lot of your workplaces will be having Halloween parties. Some of the parties will request that you dress up for the occasion. If you happen to work in one of the workplaces, you have my sympathies. You also have my top 5 tips to avoid turning your innocent costume party into an HR horror show.

1. Be appropriate. Racist costumes have no roll anywhere, especially in the workplace.

2. Be appropriate (number 2). If the name of your costume starts with “Slutty” or “Naughty” or some other similar adjective, pick another costume. Costumes like “Carlos Danger” (aka sexting Anthony Weiner), or anything else overtly sexual, are also really bad ideas.

3. Can you work in your costume? It may be really cute or clever dressing up as an iPhone, but if it hinders your ability to do even the simplest of tasks (like sitting at your desk), then it’s probably not the right costume for work. Make-up and masks, while impressive and scary, are probably best left at home.

4. Avoid dangerous costumes. No, I’m not talking about Leatherface with a real chainsaw (although that’s also a bad idea). I’m talking about long wigs, feather boas, or other materials that could get caught in dangerous equipment, for example.

5. Are you thinking about dressing up like a coworker or your boss? Does that individual have a good sense of humor? Are they going to take it the right way? You better be 100 percent sure before you don that mimicry.

Do you employ minors? Then read this sexual harassment case.

R.W., age 16, worked at Land of Illusion, a haunted theme park. She reported to Brett Oakley—48 years old—the park’s owner and a friend of her dad. R.W. claimed that while at work one night, Oakley began discussing with her whether she uses birth control, feigned shock that she was still a virgin, and offered to take her to a hotel in Kentucky “for the experience of a lifetime,” to “show her what real sex is like.” Ick.

In Ward v. Oakley (Butler Ct. App. 10/28/13) [pdf], the court of appeals reversed the trial court’s grant of summary judgment to the employer. Even though the court concluded that the alleged harassment constituted one single incident, it was sufficiently severe such that a jury could conclude that it constituted a hostile work environment.

The lack of multiple incidents must be balanced against the objective severity of Oakley's alleged conduct. Here, viewing the evidence in a light most favorable to Ward, a 16-year-old girl was subjected to a thinly veiled solicitation for sex by a long-time, close family friend who was 32 years her senior…. As Oakley was the owner of the company, there was no one for R.W. to turn to for redress. Oakley placed R.W. in the untenable position of choosing between continued exposure to Oakley or jeopardizing her employment at Land of Illusion and that of Ward and her stepmother. This conduct eclipses the threshold of severity required to defeat summary judgment.

Do you employee teens in your workplace? If so, consider these nine tips from the EEOC on how to combat sexual harassment facing our youngest workers:

1. Encourage open, positive and respectful interactions with young workers.
2. Remember that awareness, through early education and communication, is the key to prevention.
3. Establish a strong corporate policy for handling complaints.
4. Provide alternate avenues to report complaints and identify appropriate staff to contact.
5. Encourage young workers to come forward with concerns and protect from retaliation employees who report problems or otherwise participate in EEO investigations.
6. Post company policies on discrimination and complaint processing in visible locations, such as near the time clock or break area, or include the information in a young worker’s first paycheck.
7. Clearly communicate, update, and reinforce discrimination policies and procedures in a language and manner young workers can understand.
8. Provide early training to managers and employees, especially front-line supervisors.
9. Consider hosting an information seminar for the parents or guardians of teens working for the organization.

Halting the tide of religious-discrimination claims

According to the Wall Street Journal, religious-discrimination claims are on the rise.

Companies big and small are being affected by the complex intermixing of work and faith. The trend toward a seven-day workweek sometimes treads on the Sabbath. Religious garb and grooming clash with dress codes. Job duties that intersect with changing public policies—for instance, issuing a marriage license to a gay couple—test some workers’ adherence to their religious beliefs.

While religious-discrimination claims only comprise a small portion of all charges filed with the EEOC, they have more than doubled over the past 15 years, growing at a rate faster than race or sex claims.

These claims are not going away. Indeed, a recent survey by the Tanenbaum Center for Interreligious Understanding, entitled,  “What American Workers Really Think About Religion,” concluded that religious discrimination is rampant in the American workplace.

Some the survey’s more eye-opening findings include:

• Nearly half of non-Christians surveyed (49%) believe that their employers are ignoring their religious needs.
• Employees in companies without religious diversity policies are almost twice as likely to be searching for another job as their counterparts in companies with policies.
• Among American workers at companies where religious bias had been reported to managers or human resources, nearly one-third of workers report that the company took no actions to stop the bias.
• Nearly six out of ten atheists (59%) believe that people look down on their beliefs, as do nearly one-third of non-Christian religious workers (31%) and white evangelical Protestants (32%).
• Atheists (55%) are substantially more likely than workers in any other group to report that they themselves face a lot of discrimination today. Unlike white evangelical Protestants, however, atheists are also more likely than workers overall to believe that Muslims (66%), gay and lesbian people (63%), Hispanics (50%), and women (39%) experience a lot of discrimination.

What can you do to make your workplace religiously diverse and tolerant, so that you are not a target for these claims (also via the Tanenbaum Center)?

1. Ask: When an employee comes to work in a turban, find out if this is due to a sincerely held religious belief. If so, you should try to accommodate (unless it causes too big of a burden).

2. Respect Differences: Americans don’t know much about others’ religions. Tensions often arise around religious difference because of a lack of information or misinformation. If your employees need information to understand different faiths and to make co-workers feel welcome, make it available.

3. Communicate: Do you have written policy on religious accommodation. The Tanenbaum Center suggests that the mere existence of a written policy on religion, in itself, reduces the perception of bias in the workplace. Of course, merely having a policy is never enough. You must communicate it to your employees and enforce it when the need arises.

4. Think Outside the Box: When an employee requests a religious accommodation, think creatively about how to meet the needs of the employee and the needs of the company. Communication and compromise are key. Unless you talk, you cannot know what your employee needs and your employee cannot know what you’re willing to offer. Is these circumstances, lack of communication (and not intentional discrimination) is the root cause of most lawsuits.

Yes, it’s legal… (10 more things companies can do without breaking the law) #yesitslegal

Every now and then, I come across a blog post that I wish I had written. Last Friday, I read one of those posts.

Suzanne Lucas (aka, the Evil HR Lady) and Alison Green (aka, Ask A Manager) jointly wrote a post entitled, Yes, it’s legal … queries from a combined 13 years of blogging about the workplace. The post lists 62 different things—some commonplace (“It’s legal to require overtime.”), and some unusual (“It’s legal for your manager to make you clean up rat poo.”).

I loved the post so much, I thought I’d add 10 of my own (shamelessly built around the themes from the 10 chapters in my book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law).

1. It’s legal to refuse to hire a felon.

2. It’s legal to refuse to let you bring a representative into your disciplinary meeting (as long as it’s a non-union shop).

3. It’s legal to close our business.

4. It’s legal to change our handbook as often as we want (and hold you to the new policies).

5. It’s legal to impose a punishment less than termination on a perpetrator of harassment.

6. It’s legal to fire you if you work unauthorized overtime.

7. It’s legal to tell you why we don’t like labor unions.

8. It’s legal to replace you while you're on a leave of absence (as long as the leave isn’t FMLA-protected).

9. It‘s legal to refuse to hire someone who won’t sign a non-compete.

10. It’s legal to oppose your claim for unemployment.

How about you? What would you add to the list? Leave your thoughts in the comments below, or tweet it with the hashtag, #yesitslegal.

WIRTW #294 (the “all I want” edition)

Satellite radio has so overplayed Kodaline’s All I Want that, even though I like the song, I instinctively switch channels any time it comes on.

Then, I saw the video:

The lesson for employers and employees to take to heart? What defines a person is one’s actions, not one’s appearance. (And, apparently, that sexual harassment laws are much different in Ireland that here in the States. I’d love to hear from an Irish employment lawyer on this point.)

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

Discrimination

• “Derailers” and Employment Liability: Or, How to Get Out of the Way Before the Train Jumps its Tracks — from Intown Employer
• Going to the press with an employment dispute = “retaliation”? — from Walter Olson’s Overlawyered
• Triggering the Duty of Accommodating Religion — from Workplace Prof Blog
• Timely Attendance Isn’t An Essential Job Function?!? — from Currents: Hot Topics in Employment Law

Social Media & Workplace Technology

• Strong Computer Usage Policy Strengthen Claims Against Former Employees — from All in a Day’s Work
• How Did the White House Unmask Its Internal Twitter Critic? — from Shear on Social Media Law
• 11th Cir. Upholds Facebook Discipline of Police Officer — from Molly DiBianca’s Delaware Employment Law Blog
• Nearly half of employers investigate job applicants online — from Eric Meyer’s The Employer Handbook Blog
• Fired worker loses smartphone privileges for 3 years for hacking into law firm’s server — from ABA Journal Daily News
• Privacy Suit Over Hidden Cameras in Workplace Bathrooms Reinstated — from Law.com

HR & Employee Relations

• Mandatory Flu Shots for Employees in Connecticut: Fact vs. Fiction — from Dan Schwartz’s Connecticut Employment Law Blog
• The SCOTUS Case That Could Give Voice to More Whistleblowers — from Harvard Business Review
• 5 Ways Your Workplace Bully May Be Breaking The Law — from Screw You Guys, I’m Going Home
• Dress Codes and Grooming Codes in the Workplace — from Blogging4Jobs
• The 5 Biggest Lies In HR — from The HR Capitalist, Kris Dunn
• Work-life balance: workplace flexibility is trending in the US — from Employment Intelligence
• Sexual abuse: Getting your employees to do the right thing — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Preview of future overtime lawsuits? — from EmployerLINC
• Are Your Non-Exempt Employees Properly Compensated for All of Their Work Time? — from Labor & Employment Law Perspectives
• With FMLA audits on the rise – How do US employers stay prepared? — from Employment Intelligence

Labor Relations

• Why Some Companies Want a Unionized Workforce — from Matt Austin Labor Law
• Federal Shutdown Ended, National Labor Relations Board to Resume Full Operations Today — from Labor Relations Today

The legal reason why you shouldn’t force employees to turn over social media passwords

There has been a lot of ink spilled out on the supposed practice of employers requiring employees to provide access to their private social media accounts. I’ve long espoused both that this practice is not occurring with sufficient regularity to justify a legislative fix (despite New Jersey just becoming the 12th state to enact a legislative ban), and that employers should nevertheless avoid this practice because it erodes the trust that is necessary to build a workable employer/employee relationship.

Ehling v. Monmouth-Ocean Hospital Service Corp. (D.N.J. 8/20/13) provides further legal justification for employers to avoid this practice.

Deborah Ehling worked as a registered nurse and paramedic for MONOC beginning in 2004. Beginning in 2008, Ehling maintained a Facebook account with approximately 300 “friends.” She chose restrictive privacy settings on that account so that only her Facebook friend could see her wall posts. While Ehling had no MONOC managers as Facebook friends, she did add many coworkers, including a paramedic named Tim Ronco. Unbeknownst to Ehling, Ronco was taking screenshots of her Facebook wall and printing them or emailing them to MONOC manager Andrew Caruso. Caruso never asked Ronco for information about Ehling, and never requested that Ronco share Ehling’s Facebook activity. Nevertheless, once Caruso received copies of the Facebook posts, he passed them on to MONOC’s Executive Director of Administration.

On June 8, 2009, Ehling posted the following statement to her Facebook wall:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards....go to target practice.

After MONOC management learned of the post, it temporarily suspended Ehling with pay. After MONOC fired Ehling for unrelated attendance issues, she sued, and claimed, among other things, that MONOC’s access of her private Facebook wall violated the Stored Communications Act and her common law right to privacy.

The SCA covers (1) electronic communications, (2) that were transmitted via an electronic communication service, (3) that are in electronic storage, and (4) that are not public. The Court had little issue concluding that the SCA covers non-public Facebook wall posts.

The SCA, however, has an exception for “authorized users.” This exception applies where (1) access to the communication was “authorized,” without coercion or pressure, (2) “by a user of that service,” (3) “with respect to a communication … intended for that user.” Ehling had no evidence to support her claim that MONOC’s access of her Facebook page was unauthorized. To the contrary, the evidence showed that Ronco voluntarily shared the information with Caruso, and, therefore, was “authorized” under the SCA. Thus, no violation of the SCA occurred via MONOC’s possession of wall posts from Ehling’s private Facebook page.

The Court disposed of Ehling’s invasion of privacy claim on similar grounds. In doing so, however, the Court made the following interesting observation:

The evidence does not show that Defendants obtained access to Plaintiff’s Facebook page by, say, logging into her account, logging into another employee’s account, or asking another employee to log into Facebook. Instead, the evidence shows that Defendants were the passive recipients of information that they did not seek out or ask for. Plaintiff voluntarily gave information to her Facebook friend, and her Facebook friend voluntarily gave that information to someone else … This may have been a violation of trust, but it was not a violation of privacy.

In other words, the Court may have found a privacy invasion if the employer had used surreptitious or coercive means to gain access to its employee’s Facebook page. Thus, whether or not a statute specifically prohibits employers from requiring the disclosure of social media account information, this court makes it clear that an employer’s demand of such information is nevertheless illegal. Or, to put it another way, please don’t ask your employees to turn over their online passwords.

This post originally appeared on The Legal Workplace Blog.

When Coyote Posts Get Ugly (My latest column in Workforce magazine)

Each month I write a featured column in Workforce magazine. This month, my column focuses on the risks businesses take when then take to social media to comment on pending litigation and the employees who’ve filed. The article—”When Coyote Posts Get Ugly”—is available here.

A hypnotic tale about choice of law and non-compete agreements

Choice of law is one of the most important, and, often, most ignored decisions you can making in drafting a non-competition agreement. Lifestyle Improvement Centers, LLC v. East Bay Health, LLC (S.D. Ohio 10/7/13), illustrates how the choice of which state’s law will govern the contact can govern the enforceability of the restrictive covenant.

Patrick Porter owned Positive Changes Hypnosis Centers, a successful hypnosis-therapy center, which included a network of franchises. In 2003, Porter sold the business to an Ohio-based company, Lifestyle Improvement Centers. Years later, while running a competing California-based self-improvement company called East Bay Health, Lifestyle reached out to the Porters for help with a struggling Positive Changes franchise in California. Ultimately, the Porters acquired the struggling Positive Changes franchise from Lifestyle. The Porters’ company, East Bay, entered both a franchise agreement and a non-compete agreement with Lifestyle.

The Porters spent a year trying to turn around the Positive Changes franchise location, ultimately concluding it was a lost cause. The Porters shut down the franchise and converted it into The Smart Body Institute, operated through their East Bay Health company. When the Smart Body Institute entered the hypnotherapy business, Lifestyle sued under the non-compete agreement, which stated that Ohio law governed the parties’ relationship.

The Porters and East Bay argued that because California law forbids non-compete agreements, it violates the law and public policy of the state in which their business is located to enforce a non-compete agreement under a competing state’s law. The Ohio federal court hearing the dispute agreed, concluding that despite the Ohio choice of law provision, California law applied. Thus, an Ohio company, with an Ohio choice of law contract, in an Ohio court, could not enforce its non-compete agreement.

In this case, the court ignored the parties’ choice of law because of the strength of the public policy of the state in which the competing business was located. Yet, this case illustrates a larger point. Choice of law can be outcome determinative in non-compete cases. Because state law governs the enforceability of non-compete agreements, there are 50 different possible sets of rules for your contract. The set that you choose could determine your case. For example, Ohio enforces non-compete agreements based on their overall reasonableness. California, on the other hand, has decided that its public policy renders most non-compete agreements per se unenforceable. Do not ignore the selection of the controlling law in your non-competition agreements. Otherwise, you could be missing a golden opportunity to dictate the terms of the agreement’s interpretation, and, ultimately, its enforceability.

Riffing on the right way to do workforce reductions

Anthony Rachells was a top performer at Cingular Wireless. As a National Retail Account Executive in Cingular’s Cleveland region, he received numerous sales awards, consistently exceeded company sales goals by the greatest margin of any of his co-workers, and, in 2003 earned the top performance review among his peers. Yet, when AT&T acquired Cingular in 2004, and eliminated five of the nine employees in Rachells’s position. Rachells received the lowest 2004 performance review score of any candidate, ranked seventh in the overall selection process, and was terminated.

Rachells—who was the only African-American National Retail Account Executive—sued, claiming that his manager (who other testified had a history of discriminating against minorities) included him in the workforce reduction because of his race.

Last week, in Rachells v. Cingular Wireless Employee Services [pdf], the 6th Circuit concluded that it should be up to a jury to determine whether the decision-making manager singled out Rachells because of his race.

Here, among the Cingular candidates, Rachells was the only person of color and the only individual discharged in the RIF. Given this small sample size of the Cingular candidates, however, this is not sufficient to conclude that Cingular’s actions were racially motivated…. The district court erred in dismissing two other crucial categories of evidence tending to show race-based discrimination: evidence of Rachells’ superior qualifications and evidence of a discriminatory atmosphere at Cingular….

Here are three factors to think about when using subjective criteria (such as rankings) when deciding on who to include in a RIF:

1. Comparability. What do your workforce demographics look like before and after the RIF, company wide, department by department, and job function by job function? If it looks like your RIF affected women, minorities, or older workers more than their comparators, it will become harder to justify the legitimacy of the subjective criteria. In this case, Cingular’s RIF failed the smell test by including the only African-American account executive.

2. Consistency. Do you always use subjective criteria as part of your decision-making? If not, it will look like you added a subjective component to this RIF for a reason (to single out someone or some group). If nothing else, you will have to explain why you deviated from the norm. In this case, it was not a stretch for the court to conclude that the manager rigged the ranking to single out Rachells.

3. Honesty. Was everyone honest in their subjective evaluations? The quickest way to buy yourself a jury trial is for the plaintiff to uncover dishonesty or other shenanigans in the decision-making process. If you are going to have a subjective component to any RIF, make sure the evaluations pass muster. How do they compare to past performance reviews? Have the employees ever been counseled, disciplined, or put on a performance plan? Do the objective criteria (sales numbers, for example) contradict the subjective evaluation? In this case, Cingular’s RIF failed because the objective criteria (sales figures, awards, and prior performance reviews) did not match the subjective ranking prepared solely for purposes of the RIF.

RIFs, done correctly, provide employers wide protections from allegations of discrimination. Done poorly, however, RIFs open employer to widespread claims of discrimination that can prove more difficult to defend than the savings the employer hoped to realize from the layoffs.

WIRTW #293 (the “interview from hell” edition)

Is this the worst (fake) job interview ever?

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

Discrimination

• Fortune on the EEOC’s legal war against employers — from Walter Olson’s Overlawyered
• Is Being Dead a Disability? — from California Employment Law
• An employer is not required to change supervisors as an ADA accommodation — from Eric Meyer’s The Employer Handbook Blog
• SCOTUS Dismisses Constitutional Age Discrimination Case — from Phil Miles’s Lawffice Space
• Where’s the Beef? Employer Defeats EEOC’s Religious Discrimination Pattern Or Practice Case By Establishing Undue Hardship Defense — from Workplace Class Action Litigation
• United States Supreme Court Asks Government to Weigh in on Accommodations for Pregnant Employees — from Trade Secret / Noncompete Blog
• Unpaid interns and sexual harassment -- how much do you know? — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Court Finds Duty to Preserve Personal Emails of Employees — from Molly DiBianca’s Delaware Employment Law Blog
• Blurred Lines: Social Media and Confidentiality in Workplace Investigations — from Employment Law Lookout
• Tweet Ye, Tweet Ye: It’s OK to Promote Your Workers on Social Media — from Whatever Works

HR & Employee Relations

• Are You An Employee Friendly Company? — from The Tim Sackett Project
• Fat Jokes Can Turn Out to Be a Costly Workplace Problem — from TLNT
• Employment Law Differences for Non-Profit Employers — from Minnesota Employer
• Counting to Seven: The 7 Year Rule for Reporting Adverse Information on a Background Check — from employeescreenIQ Blog

Wage & Hour

• Pro-employee 5th Circuit? Four keys to recent FMLA retaliation decision — from Work Matters
• Holy Smokes! Employee's Minister Uncovers Her FMLA Abuse, Leads to Her Termination — from FMLA Insights
• Federal Court Denies Class Certification, Preemptively Denies FLSA Collective Action – Class Members’ Experiences Too Varied — from Currents: Hot Topics in Employment Law
• Did Amazon Violate Overtime Pay Requirements By Not Paying Warehouse Employees For Required Screenings? — from Overtime Lawyer Blog

Smoking out the law on e-cigarettes in the workplace

29 states, plus the District of Columbia, have laws prohibiting anyone from smoking in the workplace. Like similar bans in other states, Ohio’s statewide workplace ban applies to “smoking,” which means “inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, or other lighted smoking device for burning tobacco or any other plant.”

Electronic cigarettes do not burn tobacco. Instead, they use a heating element to vaporize a liquid solution that includes a concentration of nicotine. Because these vaporizing devices do not contain tobacco, they are not prohibited by workplace smoking laws.

According to the Zanesville Times Recorder, e-cigarettes will be coming to your workplace, and will test the limit of your anti-smoking policy:

As vaporing becomes more prevalent, it’s quickly evolving into a controversial workplace issue. Employers will be faced with the challenge of contemplating the pros and cons of e-cigarettes for their workplaces and will need to consider adapting a policy that reflects their position

Proponents of e-cigarettes in the workplace argue that there exists no proof of any associated health risks, and that they improve employee productivity by eliminating the need of smoke breaks during the workday.

Opponents argue that these devices contain nicotine and detectable levels of known carcinogens and toxic chemicals, and that prohibiting their use in the workplace eliminates the risk of any complaints from nonsmoking co-workers, customers or others annoyed by the vapors.

There are no laws requiring that you allow e-cigarettes in your workplace. Laws that prohibit smoking in the workplace are a floor, not a ceiling. You are free to ban these devices in your workplace, and should consider doing so.

Companies should review their smoke-free workplace policies specifically to prohibit e-cigarettes, and consider including employees that use e-cigarettes as “smokers” for purposes of any wellness or smoking-cessation initiatives.

This post originally appeared on The Legal Workplace Blog.

The devil went down to the EEOC… A story on religious accommodation

Halloween is almost upon us, which mean that it’s only appropriate to discuss one of the EEOC’s last actions before the government shutdown—the filing of a lawsuit against two Pennsylvania energy companies for failing to accommodate an employee’s religiously based fear of using the newly installed time and attendance biometric hand scanners. From the EEOC’s press release:

Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

The mining companies refused to consider alternate means of tracking Butcher’s time and attendance, such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers. The EEOC charges that Butcher was forced to retire because the companies refused to provide an accommodation to his religious beliefs.  

According to the EEOC lawyer litigating this case, “In religious accommodation cases, the standard is not whether company officials agree with or share the employee’s religious beliefs. Instead, the focus is on whether the employer can provide an accommodation without incurring an undue hardship.”

Before you dismiss an employee’s request for a religious accommodation as silly or outrageous, stop, think, and decide whether the expense or difficultly in making the accommodating exceeds the cost and aggravation of defending a possible discrimination lawsuit. The answer to that equation, should, more often than not, guide your decision.

For more on this issue, I recommend pages 229 – 230 of my latest book, The Employer Bill of Rights, where I discuss a former co-worker of mine who believed that Lee Iacocca saved Chrysler by making a pact with the devil, and how the company for which we worked accommodated his beliefs (true story).

Can George Costanza sue for sexual harassment or retaliation?

In an episode of Seinfeld, George Costanza lost his job after the cleaning woman, with whom he had sex on his desk in his office after hours, ratted him out to management.

Could he have sued for sexual harassment? According to Stevens v. Saint Elizabeth Med. Ctr. (6th Cir. 8/29/13), the answer is no.

Caroline Stevens, worked as the personal assistant to defendant Dr. Donald Saelinger, the Chief Executive Officer of Patient First, which was later acquired by Saint Elizabeth Medical Center. After the hospital discovered a recently ended a consensual relationship between the two (which included after-hours sex in the office ), it offered both the option of resignation or termination. Stevens refused to resign, yada yada yada, and was fired.

The 6th Circuit affirmed the dismissal of both her sexual harassment claim (premised on some post-break-up love notes and other protestations of continued affection at the office) and her retaliation claim (premised on her termination after she had written a letter to Saelinger stating a desire to do her job in a non-threatening environment).

There is nothing wrong with employees dating. Nothing good, however, comes from a boss having relations with a subordinate employee, especially one who is a direct report. No matter your corporate position on employee romance, it’s probably best to prohibit managers and supervisors from dating (etc.) their direct reports. Untangling relationships is complicated enough. You do not need to complicate it more by engaging the possibility (and the resulting legal risk) of an employee reporting to an ex.

As for George’s possible legal claims, it’s no soup for you.

The case regarding intern harassment

By now, you’ve probably read about Wang v. Phoenix Satellite Television (S.D.N.Y. 10/3/13) [pdf], the New York federal court case dismissing, under New York City’s employment discrimination law, a sexual harassment claim brought by an unpaid intern. The decision, which held that an unpaid intern cannot bring a harassment claim because she is not an “employee”, has been panned as a crime against workers.

Let me assure you, this decision is 100 percent legally correct. Under Title VII, interns are not employees. Therefore, they have no legal right under the civil rights laws to assert harassment claims.

Critics of this decision argue that it leaves interns unprotected from harassment. Yet, there are three reasons why this decision doesn’t have nearly as big an impact as some would like you to believe.

1. Unpaid interns are a dying breed. The DOL has made a full-court press against the unpaid intern. Gone are days when a company can take on an unpaid intern as a de facto trainee. Entry-level employees, whether called interns, trainees, or something else, are employees that must be paid. The only interns that remain for a company to use as unpaid labor without risking an FLSA violation are those that are placed with a company for school credit. 

2. Bona fide unpaid interns—those working through an educational institution—are not without redress. They can complain to their sponsoring educational institution, which risks Title IX liability if it ignores the complaint. The school should take the complaint seriously, investigate, go to bat for the intern, or pull the intern out of that placement and find a substitute replacement internship, all without penalty to the student.

3. Harassed interns also have other remedies against the business—they can sue for intentional infliction of emotional distress, assault, or other common law torts. 

Harassment is a serious issue, which all employers should take seriously. The reality, however, is that bona fide interns are not employees. They never have been, and, absent a radical change in the law, they will not be in the future. To call for changes to five decades of law under Title VII for a small subset of individuals who have remedies elsewhere, however, misses the legal and practical realities of this issue.

WIRTW #292 (the “hot pockets” edition)

Are you looking for some fresh idea on how to spruce up your management style? Look no further than these four tips from corporate-guru Jim Gaffigan:

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

Discrimination  

• Why Age Discrimination Should Matter to You — from HR Examiner with John Sumser
• Hijab accommodation: Will Abercrombie's victory stand? — from Robin Shea’s Employment & Labor Insider
• ‘T*ts Or GTFO’ Now A Legitimate Requirement For Unpaid Interns — from Abovethelaw.com
• It’s Not Just A Speed Bump: The EEOC Loses Another Battle In Its War On The Mandatory Conciliation Process — from Workplace Class Action Litigation
• Employee—a grown man for God’s sake—claims he was fired for being a brony — from Eric Meyer’s The Employer Handbook Blog
• The Situation of Ageism — from The Situationist
• Woman is Fired for Being Old and Ugly – A Win for the EEOC — from Workplace Insights
• Future Friday: The Disability of the Future Workplace? — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Snap(chat), Kik & Whisper: What Social Networking Apps Your Employees Are Using Today — from Dan Schwartz’s Connecticut Employment Law Blog
• Boss Hacks Personal Email Account of Employee. Emotional Distress Follows. — from Molly DiBianca’s Delaware Employment Law Blog
• How Social Media Could Soon Change Performance Reviews — from Workplace Diva  
• Keeping it simple : 5 word law firm social media policy — from Real Lawyers Have Blogs
• BYODOMG! Your Kids Are Taking Over Your Work Phone — from Workplace Diva
• Employment Law IQ: Hiring Decisions Based on Social Media Postings — from Southwest Florida HR Law & Solutions

HR & Employee Relations

• Employer knew of Navy Yard shooter’s mental instability — from Walter Olson’s Overlawyered
• Indemnification Clauses: Think about it now or regret it later — from Ohio Real Estate Blog
• Making Terminations a Little Less Difficult — from Blogging4Jobs
• Firing of USC football coach not a model for employer handbook — from Employment Intelligence
• Generation X — Has Our Day Finally Come? — from TLNT
• Long Live the Reference Check — from Inc.
• My Employer Filed Bankruptcy. Does That Mean They Can’t Enforce My Noncompete? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• The Best Startup Perk? A 40-Hour Week — from Bloomberg Businessweek
• Supreme Court Declines to Review Nurse's Claim of Off-the-Clock Work In Contravention of Policy — from Wage and Hour Law Update
• The Other Area 51? Court Holds 51 Job Titles, Even In Same Area, Are Too Alien From Another For Class Treatment — from The Wage and Hour Litigation Blog
• When An Employee Is On FMLA Leave, How Much Contact Is Too Much? — from Laconic Law Blog

Labor Relations

• SCOTUS 2013-14 Labor Law Preview — from Phil Miles’s Lawffice Space
• BREAKING NEWS: Obama Says All Striking Union Members Should Be Fired — from LaborPains.org

Until next week… Hot pockets…

How to handle the malingering FMLA abuser

Let’s say you have an employee who claims to be suffering from a chronic back injury. He even has doctor’s notes certifying that his back pain impairs his “ability to lift, to carry heavy objects, to bend repeatedly, or actually bend at the waist.” So, you grant the employee intermittent leave under the FMLA, which the employee uses several times each month. But, you start to notice a pattern. The employee’s FMLA-protected days off always seem to bookend weekends and holidays. As a result, HR initiates an investigation, which includes surveillance of the employee. That surveillance uncovers that while the employee is home supposedly resting his painful back, he is actually going out for coffee, shopping, and working in his garage repeatedly bending down, lifting pieces of wood, and carrying them into his house. When confronted, the employee suggests that “‘maybe’ his doctor had given him a shot of Cortisone earlier in the day.” Unimpressed, the employer ultimately terminates the employee for “fraudulent or illegal conduct.”

In Tillman v. Ohio Bell Tel. Co. [pdf], the 6th Circuit affirmed the trial court’s dismissal of the employee’s FMLA retaliation and interference claims. The court concluded that Tillman could not pursue his retaliation claim because the company “held an honest belief that Tillman had abused his FMLA leave and violated the company Code of Business Conduct,” and could not pursue his interference claim because, whether or not the “honest belief rule” applies to interference claims, Tillman was not entitled to FMLA leave on days on which he was not actually suffering from a serious health condition.

This case is a great lesson for employers on how to build a case to support a termination decision. If you believe that an employee is abusing FMLA leave, build your case. Uncover enough facts to support your belief that that employee is committing fraud and otherwise not entitled to leave. Armed with that evidence, a court is unlikely to overturn your decision. While it may cost you a little extra up front in investigatory costs, you will save money on the backend both in litigation costs and future abuses by employees deterred from malingering.

It’s time to end sexual orientation & gender identity discrimination

There is currently legislation pending in both the Ohio House [H.B. 163] and Ohio Senate [S.B. 125] that would include “sexual orientation” and “gender identity” to the list of classes from which employees are protected from discrimination by their employers. Notably, the bills protect both actual and perceived sexuality and gender-related appearance:

• “Sexual orientation” = “actual or perceived heterosexuality, homosexuality, or bisexuality.”
• “Gender identity” = “the gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual’s designated gender at birth.”

If Ohio Revised Code chapter 4112 is amended to include these protections, then harassment of employees based on their actual or perceived sexual orientation and gender identity become illegal. In that case, the line-splitting in which courts have engaged under the rubric of “same-sex harassment” will largely become a relic.

Case in point? EEOC v. Boh Brothers Construction Co. (5th Cir. 9/30/13). The facts of this case are horrific. It’s worth a read to understand just how cruel employees can be to each other. Yet, the case split 10-6 on whether the facts supported claim of sexual harassment. One of the two dissents envisioned a world in which employers would have to distribute “etiquette memos” to purge the workplace of speech and gestures that might be viewed in any way as tokens of sex discrimination. I’ve reprinted the court’s very tongue-in-cheek example below.

The dissent is exaggerating to make its point that Title VII was never meant to be a general civility code, and only the worst type of sex-based behavior is meant to trigger the statute.

Exaggerations aside, the time has come for Congress (when the federal government is back in business), along with all 50 state legislatures, to step up to the plate and end this debate. Enact legislation including sexual orientation and gender identity as protected classes, and bring to and end the shameful protection of discrimination against this marginalized class of individuals.

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ETIQUETTE FOR IRONWORKERS

MEMO TO: Management FROM: Legal Department of Apex Co. DATE: September 2013

In keeping up with the newest developments in employment law, we have carefully reviewed and hired specialist outside counsel to give us a legal opinion concerning the implications of a recent Fifth Circuit en banc decision. EEOC v. Boh Bros. . . . Like us, the employer in that case engaged in heavy construction and often operated in all-male crews. Like us, it had an unblemished record, years without a Title VII case. But the court ruled that common sexual epithets and vulgar gestures, when used too frequently by a male, heterosexual supervisor, can support a verdict against the company on behalf of another male, heterosexual plaintiff. Instead of looking on these actions as horseplay or, at worst, bullying, the court approved a jury verdict for “gender-stereotyping harassment.” The EEOC intends to make this case an example for similar workplaces.

We need not advise you of the costs a company can incur in these cases. In addition to hundreds of thousands in outside legal fees, a judgment for damages may run into six figures. The EEOC requested, and got, a sweeping and intrusive injunction that will require significant expenditures in paperwork compliance costs and regular workplace sensitivity training for over one thousand employees.

To avert these consequences, we recommend that the company immediately issue the following rules for proper, non-gender-stereotyping workplace behavior. Employees should be informed that the rules apply across the board, to all-male, all-female, and mixed-sex offices and positions. The workplace must be cleansed of speech and actions that may be misperceived or twisted as reflecting gender stereotyping harassment.

NOTICE CONCERNING TITLE VII

To our Associates:

You are all aware of this company’s unwavering policy to prevent discrimination of any kind based on sex, race, religion or national origin. Because of a new court decision, we must now focus on eliminating same-sex “gender stereotyping” of any kind as well. This means that men may expose this company to liability for their speech and behavior in the presence of other men, and women in the presence of other women. Although these rules will apply throughout the company, you IRONWORKERS have to take special notice. The rules apply throughout the workday, during breaks and lunch hours, and whenever two or more workers are gathered together.

1. At the most general level, all employees must refrain from any communication—spoken, written, or gesticulated—that may create any suggestion of “sexual stereotyping” or “gender-based bullying.” Please consider the broad implications of this prohibition, some of which follow. All employee interactions must be fully gender inclusive (or at least gender ambiguous). Careless phrases and jokes will not be tolerated if they may be interpreted to carry a stereotyping overtone.

2. No more banter about bodily functions, sexual or otherwise, or human physical appearance. Those who do not enjoy references to sweat, toilet humor, tattoos, tight jeans, muscles, or large beards may feel singled out as not “man enough” for such speech.

3. Do not discuss the appearance of women or any intimate sexual encounters, and do not refer to or use words that refer to sex in any way. This includes CUSS WORDS.

4. Do not swivel your hips, make obscene gestures or mimic “twerking.”

5. Avoid discussing topics that may be viewed as “non-inclusive”: bodybuilding, Boy Scouts, hunting, fishing, and riflery. Football and other “macho” sports may be an unwelcome subject to those who consider them boorishly aggressive.

6. Do not engage in any competitive activity, like lifting heavy objects, on the worksite. This can create a sense of unmanly inferiority for non-participants.

7. Do not use gender-stereotyped nicknames or name-calling. Supervisors may not encourage you to work harder by saying “put your backs into it,” or “man up,” and terms like “ladies” or “sissies” will be grounds for immediate discipline.

8. Schoolyard humor, which is common at our jobsites to fill down-times and relieve boredom, raises sensitive issues. Some workers may be put off by jokes about personal grooming, scented deodorant, chest hair, or clothing as a form of gender hostility. Poking fun at a worker for drinking a diet soda, not being able to eat a raw jalapeno, using “Wet Ones” or “Purell” to clean himself, or calling someone a “wimp” or “wuss” or “geek” may get us sued and you in serious trouble.

9. Asinine locker room behavior is forbidden. Examples of this would be comments about anatomy, crude gestures, actions like towel-swatting, simulated sexual acts, and any behavior that would make someone ill at ease with his personal expression of his gender. Relieving yourself in the presence of others is forbidden; the company is reconfiguring all restrooms to prevent any worker from observing another worker’s bodily functions.

10. Avoid touching any coworker in any manner, except if asked to rescue the person from physical danger, and even then, avoid touching private areas.

PENALTIES: A first violation of these rules will result in a warning, a second violation in suspension without pay, and successive violations will result in termination. We will not call this a “three-strikes” policy, as that term might be interpreted to refer to the principally male sport of baseball. We need hardly explain that any worker terminated for same-sex gender stereotyping will have a hard time finding future employment.

The Company will conduct quarterly sensitivity sessions, where you can learn more about offensive gender stereotyping against fellow males and what you can do to prevent or correct it. As questions arise at any time, call our newly hired Sex Stereotype Counselor in the HR Department.

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751,942 (and a half) marks against the EEOC in background check litigation

It’s no secret that criminal background checks rank highly on the EEOC’s hit list. The EEOC has taken the position that a policy that per se eliminates someone with a criminal history from consideration for employment violates Title VII as having a disparate impact based on race. And, the EEOC is aggressively litigating so that courts will bless its non-binding enforcement guidance on this topic and make it law.

What happens, however, when the EEOC litigates this point despite proof that an employer does not have a policy of rejecting felony applicants? A court of appeals affirms a three-quarters of a million dollar attorneys’ fees judgment against the agency and in favor of the employer against whom it unreasonably litigated. That is exactly what the 6th Circuit did yesterday in EEOC v. Peoplemark, Inc. [pdf].

The district court did not abuse its discretion when it found that the Commission could not prove its case as pleaded…. As is required, the Commission pleaded a specific employment practice—a companywide policy of denying employment opportunities to felons. That policy did not exist, and the claim the Commission pleaded could not be proved….

We are not focused on the Commission’s theory of the case, but rather, whether the claim was frivolous, unreasonable, or groundless, or whether the Commission continued to litigate after it clearly became so. As the Commission admits in its brief, it “pled a blanket policy.” The only employment practice it pleaded—and as a direct result, the only claim it pleaded—could not be proved.

We are currently ensnarled in a ugly budget fight that has shuttered our federal government. Perhaps one solution to this crisis is for Congress to engage in some simple oversight over the agencies that enforce our various laws, including the EEOC. $751,942.48 in taxpayer money is a costly investment to chase a fools’ errand.

Fired for posing for Playboy? Or, how does an employer prove a negative?

Jessica Zelinske, a 33-year-old Minnesota mom, is suing her former employer after it fired her for appearing in Playboy’s 2011 “Hot Housewives” issue. 

According to her lawsuit, she claims that before posing nude, she spoke with her boss at Charter Communications, Timothy McBain, who Zelinske says told her she would not risk her job if she posed nude. Weeks after the magazine’s publication, however, McBeain handed her a “Corrective Action Report,” notifying her of her termination for violating the company’s “standards of common decency.” The notice went on to say: “You have violated Charter’s professional conduct policy by making the personal choice to pose nude in a well-known publication.” The company claims that Zelinske never told anyone that she wanted to pose nude in Playboy, let alone ask for permission.

Zelinske’s main claim in her lawsuit is for promissory estoppel—that the company made her promise about job security, upon which she relied to her detriment by posing for Playboy. To defend this claim, the employer is in a very difficult position—having to prove a negative. The employee claims she had meeting where her boss blessed her photo shoot, and may even have notes (legitimate or not) to support her claim; the employer claims that no meeting ever took place, and certainly will not have any notes or other evidence to support an event that it claims never happened. How does an employer prove that it never made such a promise to an employee? Sadly for this employer, the answer may be a costly and time consuming jury trial. 

Proving a negative—that conversation never took place, or, you did not work those extra hours that your timesheet says you did—is the most difficult position for an employer, and, often, the most expensive for an employer to defend.

WIRTW #291 (the “if you can’t beat ‘em…” edition)

At The Employer Handbook Blog, Eric Meyer is polling his readers with the question, “Would you hire this employee?”

The employee in question, Marina Shifrin, posted this video on her YouTube page (11+ million hits to date) announcing that she quit her job.

Embracing the maxim that there are two sides to every story, the employer, Next Media Animation, posted a video of its own (with a respectible 2.2 million hits) announcing that it’s hiring (h/t Mashable).

Touché.

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

Discrimination

• The EEOC Continues Fight To “Shut Down” Judicial Review Of Conciliation Process — from EEOC Year-End Countdown
• Time’s Up, Pencils Down: EEOC Final Fiscal Year End Filing Totals Provide Surprises and Insight — from Employment Law Lookout
• EEOC’s Conciliation Efforts Shortchanges 5,000+ Employees Annually — from WinWinHR
• EEOC Responds to Criticism of its Position on Background Checks — from Minnesota Employment Law Report
• The Death of the Jury Trial in Federal Court — from Texas Employment Law Blog
• The UNEMPLOYED – A Protected Category Coming To a Jurisdiction Near You — from The Labor Dish
• Watch Out! Anti-Retaliation Laws May Protect Act Against Ex-Employees Too — from The Emplawyerologist
• U.S. Supreme Court to Kick Off New Term With Age Discrimination Issue — from Currents: Hot Topics in Employment Law
• “Voluntary” wellness programs—seeking answers from the EEOC — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• The Guide to Social Media and the Securities Laws — from Socially Aware Blog
• Discovery of Social-Media Passwords — from Delaware Employment Law Blog
• Social Media training for employees — from Gautam Ghosh on Human Resources
• Just because you own the device doesn’t mean… — from Omega HR Solutions

HR & Employee Relations

• Top 5 Reasons Employees Quit and What You Can Do About It — from In House
• Fired For Telling The Truth — from Work Place Coach Blog News
• 10 New (And Legal) Ways Your Employer Is Spying On You — from Screw You Guys, I’m Going Home
• Careful, that Slice of Pizza You’re Eating Might Be Full of Trade Secrets — from Trading Secrets
• Don’t Forget the ‘Human’ in Human Resources! — from Blogging4Jobs
• Cleansing a Toxic Workplace — from Time
• Millennials in the Workplace: More Engagement, Less Powerpoint — from The Marketing Strategist

Wage & Hour

• Supreme Court to Consider Tax Treatment of Severance Payments — from Washington D.C. Employment Law Update
• Roto Rooter OT Case Shows Interplay Between Arbitration and Lawsuits — from Wage & Hour - Development & Highlights
• Sick employee wants less overtime? Consider that a request for intermittent FMLA leave — from Business Management Daily
• They’re Heeeerrrreeee … Obamacare Exchanges Go Live — from Phil Miles’s Lawffice Space

Facebook “likes” as free speech

In Bland v. Roberts, a Virginia federal court dismissed a First Amendment retaliation lawsuit brought by a group of terminated city employees who had supported the incumbent sheriff’s opposition by, among other things, liking the candidate’s campaign Facebook page. The court concluded that merely clicking the “like” button on a Facebook page is not Constitutionally protected speech.

At the time, I took issue with the court’s opinion (quoting Eugene Volokh):

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed…. Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected.

I called for the 4th Circuit to reverse this misinformed precedent, and the 4th Circuit listened. Last month, the Court reversed the trial court’s dismissal, holding that the First Amendment protects Facebook “likes.”

Once one understands the nature of what Carter did by liking the Campaign Page, it becomes apparent that his conduct qualifies as speech. On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. … That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Unlike their private-sector counterparts, public employees enjoy free-speech rights in the workplace (the NLRB notwithstanding). This case reaches the common-sense conclusion that these free-speech rights extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. Thus, public employers need to take heed before taking action based on these online activities.

This post originally appeared on The Legal Workplace Blog.

Must you pay your employees for civic and charitable work?

October is Breast Cancer Awareness month, which means that businesses all over the country will be sponsoring events to combat this disease that has touched so many.

If your non-exempt employees are attending one of your charitable event, however, do you have to pay them for their time? It’s no surprise that the answer is, “It depends.”

The Fair Labor Standards Act’s regulations [pdf] differentiate between required time and volunteered time for time spent serving a public or charitable purpose.

• If the employee’s time spent at the civil or charitable event is at the employer’s request, it is compensable hours worked and must be paid.
• If the time spent is under the employer’s direction or control, it is compensable hours worked.
• If the time spent is while the employee is required to be on the premises, it is compensable hours worked.
• If, however, the employee voluntarily chooses to spend his or her time outside normal working hours at the event, then it is not compensable hours worked and can be unpaid.

And, keep in mind that if the compensable time is in excess of 40 hours in a workweek, it must  be paid at time and a half.

Before you send that next email or memo requiring employees’ presence at a chartable event, don’t, unless you want to pay employees for their time. If you are otherwise soliciting attendees, make sure you make it clear that their attendance is 100 percent voluntary to avoid having to pay employees for their time.

It’s the final countdown: How the government shutdown affects labor and employment law

In case you haven’t heard, as of 12:01 a.m. this morning, the federal government is closed. Your business will feel this shutdown in many ways, including in your interactions with the federal agencies that enforce the various labor and employment laws. Each has posted on its website a contingency plan for operations during the shutdown.

For example, the Equal Employment Opportunity Commission:

1. Will accept and docket new charges, and examine if immediate injunctive relief is necessary.
2. Will not conduct any investigations.
3. Will not mediate any charges.
4. Will not have staff available to answer questions or respond to correspondence.
5. Will not litigate, unless a court denies a request for extension of time.
6. Will not process any FOIA requests.

The Department of Labor and the National Labor Relations Board have each posted their own detailed shutdown plans. The bottom line, however, is that except for services that are absolutely essential, federal agencies will be closed until Congress works out its financial issues.

Federal courts, meanwhile, will remain open for business as usual for at least 10 business days, after which the Judiciary will reassess the situation.

Other federal services impacting employers that will be temporarily shuttered include e-Verify and the IRS.

While it difficult to predict how long this shutdown will last. The last shutdown of the federal government, spanning the end of 1995 to the beginning of 1996, lasted 28 days.

For now, if you have active matters with any federal agencies, expect for them to be on hold. Please remember is that while the EEOC and other agencies might be temporarily out of business, the laws that they enforce are not.

photo credit: G0SUB via photopin cc

What Kanye West can teach you about employee relations

Ragan.com recently asked this question: “When should you fire an employee for his tweets?”

As a management-side employment lawyer you’d think I’d tell you that private-sector employees have no privacy rights in what they post online, and that an employer has the right to fire any employee, at any time, for anything posted on a social network (with a big caveat under the National Labor Relations Act). More or less, that statement is legally correct.

But just because something is legally correct doesn’t make it practically prudent. Firing an employee for what they say online ignores the risk of harm to a business if the firing goes viral.

Case in point? Consider last week’s dust-up between Kanye West and Jimmy Kimmel. In case you’re not up on the latest gossip, Kanye gave the BBC a very (even for Kanye’s standards) self-aggrandizing interview, which Jimmy Kimmel mocked by having a little kid reenact the interview on his late-night talk show. Had it stopped there, the story would have likely died. But, Kanye took the story to his nearly 10 million Twitter followers, trashing Jimmy Kimmel in a series of progressively offensive tweets, which led to Kimmel devoting an entire monologue to eviscerating Kanye. (By the way, Kanye, 1) you’re not going to win a battle of wits with a stand-up comic, and 2) deleting all of your tweets does not erase them from every news outlet that’s already posted screen caps.)

The lesson here? Social media has the ability to turn a forgotten event into a viral nightmare. Certainly there are instances when you will have no choice but to fire someone for something posted online—for example, racist, sexist, or other inappropriate conduct, or breaches of confidentiality.

Take a look at Twitter, however, and realize how fast a tweet can disappear from a stream. Now, consider your employee, who likely has 5 or 10 followers, or even a few hundred Facebook friends. Given this limited reach, how likely is it that something an employee posts will hurt your business? If the answer is not-very-likely, then give serious consideration to ignoring it. Instead of firing an employee over some marginally inappropriate or improper post, consider providing all of your employees some training on responsible posting and other online activities. Turn a potentially viral and destructive situation into a positive learning experience.