WIRTW #300 (the “300th” edition)

Like a Spartan soldier raging into battle against the army of the Persian King Xerxes, I have ripped through 300 of these end-of-week compilations. Here’s the original post (Oct. 12, 2007) that started it all, so you can see how far we’ve traveled.

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

Discrimination

• What Happens in a “He Said/She Said” Case? A Trial — from Dan Schwartz’s Connecticut Employment Law Blog
• Discrimination award $27K, attorneys’ fee award nearly $700K — from Walter Olson’s Overlawyered
• Undue Hardship in the Financial Sense: A Viable Defense? — from Understanding the ADA
• FACT OR FICTION: Employers may discriminate based on family status — from Eric Meyer’s The Employer Handbook
• I Swear It Can Be Harassment: Workplace Profanity — from The Blue Ink
• Court Summarily Dismisses “Familial Status” Claim Under Title VII and the PHRA — from Currents: Hot Topics in Employment Law

Social Media & Workplace Technology

• A Game Changer For Employers: Embracing Mobile As Consumers Have — from TLNT
• Personal devices in the workplace: a recipe for cost savings or disaster? — from Technology for HR

HR & Employee Relations

• Top 9 HR Fails of 2013 — from Evil HR Lady, Suzanne Lucas
• Does LOVE Work as an Employee Relations Method? — from Mike Haberman’s Omega HR Solutions
• When Should An Employer Investigate? — from Workplace Investigations Blog
• Drafting an Employee Sick Leave Policy — from Corporate Counsel
• What rules must we follow if we must lay off work-visa employees? — from Business Management Daily
• Labor and Employment Law in the Vineyards — from Legal Tastings – A Wine Law Blog
• Does your employer own the entire contents of your head? — from Fortune Management & Career Blog
• Protected Status Of Trade Secrets May Be Lost By Not Insisting On Confidentiality — from Trading Secrets

Wage & Hour

• When Do You Have to Pay “Executive” Employees Overtime? — from The Emplawyerologist
• Eleventh Circuit Affirms Employer’s Directed Verdict Based On FLSA Outside Sales Exemption — from Employment Class Action Blog
• Great Expectations: Salesman’s Incompetent Performance Does Not Defeat Exempt Status — from The Wage and Hour Litigation Blog
• A Family and Medical Leave Act for the 21st Century — from DOL’s Work in Progress

SCOTUS

• SCOTUS Ruling on Forum-Selection Clauses Good News for Employers — from Molly DiBianca’s Delaware Employment Law Blog
• SCOTUS DIGs “most significant labor case in a generation” — from from Phil Miles’ Lawffice Space

A Festivus for the rest of us (at work)

Yesterday, Evil Skippy at Work answered a reader’s question about whether an employer can prevent its employees from celebrating Festivus in the workplace.

“What is Festivus,” you ask? “I’ve never heard of it.” Watch this short, five-minute instructional video, and then let’s talk.

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As you can see, Festivus, is not a religious holiday. It’s a parody, celebrated on December 23 as a non-commercialized alternative to the holiday season. According to Wikipedia, it started as a family tradition of Seinfeld writer Dan O’Keefe, who brought it into our collective consciousness by incorporating it into a 1997 episode of the show.

Which brings us back to the original question—can an employer ban Festivus at work? Because it’s a secular holiday, Title VII’s religious accommodation requirements do not apply. Unless, of course, it is an expression of an employee’s atheism, which is a “religion” Title VII protects and for which an employer must make a reasonable accommodation.

So, if the employee requesting a workplace Festivus Pole is doing so as an expression of his or her sincerely held atheism, then you should think long and hard before you deny the request. If, however, there is no religion supporting the request, then no law would prohibit you from banning Festivus at your company. Then again, why would you want to in the first place?

Regardless, if you are lucky enough to work for a company that embraces this holiday, consider it a Festivus Miracle.

Is social media a valid vehicle for harassment complaints?

A nuclear-medicine technician posted the following three items on her Facebook wall:

(At 9:00 am) Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn’t even work ... awesome!!

(At 1:37 pm) Sara DeBord is sooo disappointed ... can’t believe what a snake my boss is ... I know, I know everyone warned me:(

(At 2:53 pm) Oh, it’s hard to explain. . . . basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for our areas ... and he tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus he adds money on peoples checks if he likes them (I’ve been one of them) ... and he needs to keep his creapy hands to himself ... just an all around d-bag!!

Many of her coworkers saw the posts, including the “snake” of a boss with the “creepy hands.” Three different times, she denied authoring the posts when asked by HR. The hospital fired her a week later.

In DeBord v. Mercy Health Services of Kansas (10th Cir. 11/26/13), the court affirmed the dismissal of DeBord’s retaliation claim, concluding that thrice lying about posting information on Facebook, in addition to other violations, justified her termination.

In analyzing the retaliation claim, the court noted that the “Facebook post was not in accordance with Mercy’s otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy.” Nevermind that, according to the court, “Mercy's management first received notice of this behavior … through a publicly available message on Facebook.”

An employer has a legal obligation to take reasonable steps to remedy harassment that it knows about, or should know about. This obligation not only exists when an employee makes a formal complaint under an employer’s “reporting system,” but also when an employer otherwise learns that harassment might be occurring. An employer cannot go into ostrich-mode in the face of workplace harassment.

My fear is that the DeBord court’s statement about the Facebook post not being in compliance with the employer’s “reporting system” could lead to employers thinking that it’s okay to ignore harassment complaints made on an employee’s social media page. Ignoring information about harassment is not okay. An employer does not have an obligation to look for problems on every employee’s Facebook, Twitter, etc. However, once an employer becomes aware of harassment or other unlawful conduct, it cannot pretend it doesn’t exist.

If you’re taking an employee’s deposition, don’t charge them for a day off work

Today’s blog post is a multiple-choice quiz.

An employee takes a day off work to attend his own deposition, which you are taking in defense of the employee’s discrimination lawsuit. Do you:

A. Charge the employee attendance disciplinary points for missing work to attend his deposition;

B. Permit the absence as unexcused with no points accumulated?

If you chose “A,” you might be liable for unlawfully retaliating against that employee, at least according to the court in Younger v. Ingersoll-Rand Co. (S.D. Ohio 12/3/13).

The attendance points at issue were assessed to discipline Younger for missing work to attend a deposition scheduled and noticed by the Defendant. Defendant’s scheduling of Younger’s deposition for a date and time when Younger also was scheduled to be at work at the very least placed Younger in a Catch 22 in which he risked discipline from the Court in the form of sanctions if he chose to skip the deposition to attend work or risked discipline in relation to his employment for missing work to attend the deposition.

Under the Supreme Court’s generous l adverse-action standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, the court concluded that under the unique facts of this case, the assessment of disciplinary attendance points, albeit points that were later removed and resulted in no ultimate penalty, could constitute an adverse action.

Retaliation is a low standard for employees to meet. This case illustrates how carefully employers must treat when dealing with an employee who engaged in protected activity.

Medical marijuana and the Americans with Disabilities Act

Bailey v. Real Time Staffing Servs. (6th Cir. 10/29/13) involves an employee fired for a positive random drug test for marijuana. Unknown to the employer, Bailey was HIV positive and taking prescribed medication which could result in a false positive for marijuana. The court sided with the employer in affirming the dismissal of Bailey’s ADA lawsuit:

Bailey cannot show pretext if Real Time had an honest belief that he used illegal drugs… It is not clear that there was an error in the drug test at all, and Real Time went through a reasoned process by consulting with its medical review officer. Real Time had to decide whether to credit Bailey’s story or to credit the medical review officer’s. Its decision to credit the medical review officer’s does not support an inference of discriminatory animus. Even if the positive result was in fact false, an employer’s reliance on an erroneous result does not create a claim under the ADA absent an independent showing that the real reason for the firing was a disability.

This case raises an interesting question. Medical marijuana is legal in 20 states plus in the District of Columbia. Can an employer fire an employee who tests positive for legally prescribed marijuana? The ADA does not cover employees who are currently under the influence of illegal drugs. If legally prescribed, however, marijuana is not illegal. Thus, its treatment under the ADA is akin to any legally prescribed medication.

Here are four general thoughts on the handling of any legally prescribed medication under the ADA, including marijuana:

1. Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.

2. Drug testing. Drug testing programs can include legally prescribed drugs. And employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.

3. Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.

4. Post-disclosure handling. After an learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

Employers are wary about letting anyone work while under the influence of any drugs, legal or illegal. As explained above, however, the handling of employees taking legal prescription medications is highly fact sensitive and legally nuanced. Your best course of action is to consult with experienced employment counsel before implementing any policies or taking any action against employees that implicate these complex issues.

WIRTW #299 (the “Yuletide confessions” edition)

I have confession to make. I’m a Jew who loves Christmas. I knew it from an early age. We’d leave temple on a December Friday night and swing by a few streets on the way home to check out the lights. I loved going to Feeney’s garden center in Feasterville, PA, to see the decorated trees and Christmas displays. Some of my best childhood memories are riding the bus downtown with my Grandmom Annie to see the Christmas Light Show at Wanamaker’s and the Enchanted Colonial Village at Lit Brothers. And, I couldn’t wait for A Charlie Brown Christmas and Rudolph the Red-Nosed Reindeer to air each year.

Now, I am part of an interfaith family, in which we celebrate both Hanukkah and Christmas. I’m so proud of my seven-year-old daughter, who, earlier this week, visited with her old first-grade teacher to share the story of Hanukkah with this year’s batch of first graders.

Despite my Jewish roots, I jokingly say I am 13 in Christmas years, since this the 13th Christmas my wife and I have spent together. And, For the record, despite my religiously diverse family, and despite Jon Stewart’s opposition of the “War on Christmas,” I am not opposed to people wishing others a “Merry Christmas.”

So, pick your poison: Merry Christmas, Happy (belated) Hanukkah, Happy Kwanzaa, or Happy Holidays. Whichever you choose, have a joy-filled December.

Here’s the rest of what I read the last two weeks:

Discrimination

• “Weight” Of Authority Leads To Denial Of Employer’s Summary Judgment Motion In Hotly Contested EEOC Pregnancy Discrimination Lawsuit — from EEOC Year-End Countdown
• Pregnancy isn't a workplace disability, but how about morning sickness? — from Eric Meyer’s The Employer Handbook Blog
• When employee has difficult pregnancy, don’t get creative with FMLA, ADA — from Business Management Daily
• Employee Who Was Repeatedly Sniffed by Co-Workers and Fired For Swatting a Fly May Bring Retaliation Claim — from The Employment Brief
• Employee Discrimination on a Genetic Level — from Corporate Counsel
• Termination of employee for entering alcohol rehab after a last chance agreement not necessarily a violation of the ADA — from Employment Law Matters
• Appellate Court Upholds Summary Judgment for Employer — from Dan Schwartz’s Connecticut Employment Law Blog
• Take Two? EEOC Moves For Reconsideration After Losing High-Profile Religious Discrimination Case Over Abercrombie’s “Look Policy” — from EEOC Year-End Countdown

Social Media & Workplace Technology

• “Using Social Media to Discriminate”: Please Read the Fine Print — from Currents: Hot Topics in Employment Law
• Email, Twitter and the always-on lifestyle: Today’s double-edged sword — from Boy Genius Report
• Cyber Monday is Here - 54% of Workers to Shop Online at Work this Season — from Phil Miles’ Lawffice Space
• With a Few Clicks of the Mouse You Can Uncover What Job Applicants Leave Off Their Resumes — from Employment Law Lookout
• How BYOD Can Really Help to Change the Way You Hire — from TLNT
• BYOD Policy and Best Practices for When Employees Leave — from i-Sight Investigation Software Blog
• How Corporations are Responding to BYOD  — from Social Media Strategies Summit Blog

HR & Employee Relations

• Children’s Books Helped Shape the American Workplace, Says the DOL — from HR Daily Advisor
• Reining in the costs of the U.S. litigation system — from PointOfLaw Forum
• What Your Employees Steal May Be Used Against You In a Court of Law — from Molly DiBianca’s Delaware Employment Law Blog
• Incivility… The Signs Aren’t Always Obvious — from Fistful of Talent
• Happy Birthday to the FACTA! The Often Forgotten Law that Imposes Obligations and Provides Helpful — from Employer Law Report

Wage & Hour

• Seventh Circuit Finds Insurance Company’s Internal “Answer Man” Proper Classified as Exempt Administrative Employee — from Wage and Hour Law Update
• New York Federal District Court Endorses Use of Fluctuating Workweek Overtime Payment Method Where Employer Pays Performance-Based Bonuses to Non-Exempt Salaried Employees — from Employment Matters Blog
• Pending Legislation Alert: FLSA Notices On Worker Classifications — from Mike Haberman’s Omega HR Solutions
• Are Your Employees Properly Classified Under the FLSA? — from The Emplawyerologist
• ERISA & The Affordable Care Act: A Primer — from The L•E•Jer

Labor Relations

• “Americanized Labor Policy Is Spreading in Europe” — from Overlawyered
• Walmart Should Have Listened To Me About Firing Striking Workers — from Donna Ballman’s Screw You Guys, I’m Going Home
• No Solicitation / No Distribution Policies Must be Applied Evenly — from Matt Austin Labor Law
• Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration — from Wyatt Employment Law Report
• NLRB's GC Determines That Employees Must Expressly Invoke Their Right to Access Employer Property When They are Part of a Larger Group — from Vorys on Labor

When an extended leave of absence is NOT a reasonable accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the EEOC says that hard-capped leave of absence policies violate the ADA. For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s the harm in providing a few extra weeks of unpaid leave?

Attiogbe-Tay v. SE Rolling Hills LLC (D. Minn. 11/7/13) provides hope to employers that under the right circumstances, an employer can refuse to extend an unpaid leave of absence without violating the ADA.

Attiogbe-Tay worked the night shift at a senior living facility (The Colony) as a Licensed Practical Nurse, caring for 160 assisted living patients. Her job description required her kneel, squat, and be able to lift more than 100 pounds. As the only LPN working the night shift, she would have to lift patients if they fell, sometimes with help from other staff members.

Following years of knee pain resulting from degenerative joint disease and arthritis, Attiogbe-Tay elected to have knee replacement surgery, for which her employer granted her 12 weeks of FMLA leave. She returned to work at the end of the 12 weeks with a note from her doctor clearing her to work, but restricting her for six weeks to no kneeling, squatting, or lifting more than 50 pounds. The company’s employee handbook provides: “If medical restrictions exist at the end of the leave, the company will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.” Instead of discussing potential reasonable accommodations with Attiogbe-Tay, her employer fired her.

In her disability discrimination lawsuit, Attiogbe-Tay argued that the company should have reasonably accommodated her by extending her leave for six additional weeks until her restrictions expired. The court, however, disagreed, concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of this case it posed an undue hardship on the employer:

Here, Attiogbe-Tay was the only overnight LPN on duty. To cover Attiogbe-Tay’s shifts during her twelve-week FMLA leave, The Colony paid other nurses on its staff overtime and employed temporary LPNs from a staffing agency…. The Colony also bore considerable expense—$8,000 in additional staffing costs—as a result of Attiogbe-Tay’s twelve-week FMLA leave. Given The Colony’s relatively small staff size, its concerns over the quality of resident care, and the negative effects on its budget and staff, no reasonable jury could decline to find that the extended leave was an undue hardship…. As a result, Attiogbe-Tay was not qualified to perform the essential functions of the LPN position either with or without reasonable accommodations, and summary judgment is warranted.

Given the handbook violation by the employer, I’m surprised it won summary judgment. Nevertheless, this case illustrates that in the right circumstances, an employer can deny granting an extended medical leave without violating the ADA.

If you are planning on denying an unpaid leave as a reasonable accommodation, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation to extend a leave of absence as a reasonable accommodation:

• The cost of the accommodation.
• The employer’s overall size, number, composition, structure, and functions  of employees, and the financial resources.
• The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources, and operations.
• The relationship of the facility in question to the overall operations of the employer.

5th Circuit upholds legality of class action arbitration waivers

D.R. Horton v. NLRB [pdf] concerns whether, under the National Labor Relations Act, an employer can enforce against its employees an arbitration agreement under which the employees agree to arbitrate all employment claims, but waive their right to do so as a class or collective action in any forum.

The NLRB had held that such an agreement violates the NLRA by unlawfully limiting the employees’ rights to engage in protected concerted activity.

Yesterday, in reviewing that NLRB decision, the 5th Circuit Court of Appeals disagreed, and overturned the NLRB’s efforts to invalidate all attempts by employers to ban class arbitrations.

In its ruling, the Court concluded that the Court had overstepped its bounds by ignoring the implication of the Federal Arbitration Act. The opinion is an interesting read for those interested in agency deference and statutory interpretation. Otherwise, all you need to know about this opinion is that class action waivers are legal, so long as employees cannot reasonably read them to restrict their right to file unfair labor practice charges with the NLRB.

Readers of my blog will know that I am not a fan of employment arbitration agreements. Nevertheless, for employers who favor this tool, this case is a huge victory in confirming the scope of how far an employer can go with such an agreement.

Don’t be a jughead by thinking that white men aren’t a protected class

A group of male employees of Archie Comics filed a gender discrimination lawsuit against their employer. They allege, among other things, that Nancy Silberkleit, the company’s co-CEO, constantly referred to them by their male anatomy instead of by name.

In her defense, Silberkleit claims that she cannot be liable because “white men” are not a class protected from discrimination.

Rest assured, that defense is a loser. Title VII does not just protect minorities from discrimination. It protects all employees from discrimination. Thus, a male employee enjoys the same rights as a female employee to a workplace free from discrimination, just as a white employee has the same rights a black employee. An employer cannot treat men differently than women, or whites differently than blacks, and the disparately affected and marginalized class (whether or not a historical minority) has a claim.

My advice to Nancy Silberkleit? Abandon your defense, get out your checkbook, and take some EEO training.

[Hat tip: BuzzFeed]

Sometimes, employees get what they deserve

At 10:35 Saturday morning, I was stopped at an intersection on my way home from dropping my daughter off at her band rehearsal. From the passenger seat of the car stopped next to me in the left-turn lane emerged a guy, mid-twenties, clad in Ohio State gear and holding a beer. After he slid out of the open door, he proceeded to start dancing in the middle of the intersection while “Hang on Sloopy” blared from the car’s radio. After a minute or so of this folly, the red light turned to a green arrow, he jumped back on the car, and it spend around the turn with his door still open.

My thoughts of what an ass this guy was quickly turned to cheers for justice as I saw the blue-and-reds of a police car fly past me to pull over the dancing fool. I didn’t stick around to see the end of the story, but my hope is that he missed Ohio State’s last-second victory over Michigan from the confines of the police station’s lockup. 

This guy clearly got what he deserved. No one should feel any sympathy that this early-morning partying clown likely missed the Ohio State / Michigan game. Yet, everyday, employers take pity on poor-performing employees. 

It’s okay to fire an employee. If expectations are communicated and not met, if an employee understands what needs to be done to succeed and misses the mark, or if an employee does not improve after a sufficient number of chances, then it‘s okay to let an employee go. Employers, however manage from a culture of fear. They fear lawsuits, which, in turn, paralyzes employment decisions. As a result, mediocre employees (or worse) keep their jobs. 

As we approach the new year, I’d like employers to resolve to break this chain of mediocrity. It’s okay to fire someone, as long as you’re not motivated by an illegal reason. Communicate your expectations, give your people a fair and reasonable chance to meet them, and, if they fail, cut bait. No one feels bad for the dancing Ohio State fan; don’t feel bad for the poor employee who has’t worked out. 

It’s a four-peat—ABA Journal again names the Ohio Employer’s Law Blog to its list of the top 100 legal blogs #Blawg100

The list of pro sports teams that have four-peated their respective championships is a short one:

• New York Yankees
• Boston Celtics
• Montreal Canadiens
• New York Islanders

It’s a rare feat indeed.

Thus, I am humbly honored that the ABA Journal has, for the fourth year in a row, named me to its list of the top 100 legal blogs, simply known as the Blawg 100.

According to the ABA Journal, the criteria for inclusion are “blawgs that are regularly updated, contain original content, opinion and/or analysis. Many are also on our radar because the Journal staff finds the posts useful in terms of tipping us off to news or generating posts we consider worthy of coverage.” As for me, the ABA Journal says that I’m included because of my “frank and conversational style of writing, and “the quality of analysis.” Yes, ABA Journal, I’m blushing.

My blog is listed alongside six others in the “Labor & Employment” category (the most robust blawging community, if you ask me), each of which is very deserving of inclusion (in no particular order): Dan Schwartz’s Connecticut Employment Law Blog (and congrats to Dan for his enshrinement in the Blawg 100’s Hall of Fame), Molly DiBianca’s Delaware Employment Law Blog, Eric Meyer’s The Employer Handbook, Jeff Nowak’s FMLA Insights, Donna Ballman’s Screw You Guys, I’m Going Home, and Seyfarth Shaw’s Trading Secrets. I am particularly proud to be in this group because I consider many of these people to be friends, friendships which developed out of our blogs.

So, as we move towards Thanksgiving, I am especially thankful to all of you who have read what I’ve written for the past six and a half years. Cheers! I’ll see everyone back on Monday, as we start the march to number five.

(If you are inclined to cast votes for your favorites among the Blawg 100, you can do so here, registration required).

Social media background checks as discrimination

I’ve long argued that employers take a risk when they use social media to vet job candidates without putting in place sufficient controls to prevent the disclosure of protected EEO information. Now, we have the empirical evidence to back me up.

Last week, the Wall Street Journal reported on a research study conducted by Carnegie Mellon University:

The study, … involving dummy résumés and social-media profiles, found that between 10% and a third of U.S. firms searched social networks for job applicants' information early in the hiring process. In those cases, candidates whose public profiles indicated they were Muslim were less likely to be called for interviews than Christian applicants. The difference was particularly pronounced in parts of the country where more people identify themselves as conservative. In those places, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims.

Thus, even though employers avoid asking applicants about taboo hiring subject such as religion, social media profiles, which might contain information such as quotes from religious tests or a “like” for one’s place of worship, could lead to the inadvertent discovery of an applicant’s religion, opening the door to unconscious and unintentional biases. 

What is the answer to this problem? According to one lawyer quoted in the WSJ article, “[I]t’s not a good idea to use social media as a screening tool.” 

That view, however, is short-sighted. It ignores all of the valid, legal information one can learn about an applicant from their social media pages—references to illegal drug use, posts of sexual or racist nature, poor communication skills, the disclosure of confidential information, or the trashing of an old boss or employer. The trick is discovering this “good” information while, at the same time, screening out the “bad” protected EEO information. How does a company accomplish this task? My answer to this question hasn’t changed:

Don’t let anyone in the chain of hiring view candidates’ social media profiles. Train an employee who is insulated from the hiring process to do your social media searches, scrub all protected information, and provide a sanitized report to those responsible for making the hiring decision. That way, no one can argue that protected information posted on a social network illegally influenced a hiring decision.

For more information on this timely and important issue, please join me on December 5 at 1:00 pm, when I’ll be the special guest on a webinar hosted by Newton Software, entitled, Avoiding the Biggest Pitfalls of Social Recruiting.

WIRTW #298 (the “thankful” edition)

My daughter’s homework last night was to interview five people about what they are thankful for, and summarize the interviews in a short book. She chose to ask her brother, her grandparents, her guitar teacher, and our dog (bonus points for second-grade creativity). Since I did not get the chance to participate, I thought I’d use this space to list what I’m thankful for this year.

A loving and supportive wife, two amazing children, health and happiness, that my children still have all four of their grandparents, doggie daycare, my firm (which has been overwhelmingly supportive of this blog for six and a half years), and all of my subscribers, readers, and followers.

If you’re so inclined, feel free to share your list in the comments below, or on Twitter with the hashtag #OELBThankful

Happy Thanksgiving to everyone. I’ll have fresh content Monday and Tuesday, and will be taking the rest of next week off.

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

Discrimination

• Third Circuit Decision in Transgender Discrimination Case — from Phil Miles’ Lawffice Space
• You Want to Work Where? Working From Home As a Reasonable Accommodation — from Employment Law Lookout
• Being At Work Is An Essential Job Function — from The Blue Ink
• EEOC issues discussion points on permissible uses of “integrity testing” — from Employment Law Matters
• Court Finds Odor Sensitivity May Be Disability under ADAAA — from The Employment Brief
• Employee medical exams and the law - how much do you know? — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• “My Employee is on Facebook Four Hours a Day. What Do I Do?” — from Dan Schwartz ‘s Connecticut Employment Law Blog
• Employee Privacy and Smart Phones: Even if Employers Give Phones to Employees, Don't Read Personal Content! — from Wisconsin Employment & Labor Law Blog
• Yes, you can get fired for trashing your company on Facebook — from Ragan.com
• 10 Social Media Statistics You Might Not Expect — from Social Media Strategies Summit Blog
• What the Internet Of Things Will Bring to the Workplace — from Innovation Insights
• Personal devices in the workplace: a recipe for cost savings or disaster? — from Technology for HR
• The Circle: Transparency as Prison — from HR Examiner with John Sumser

HR & Employee Relations

• Don’t Ever Apologize for Being a Good Parent, and Other Lessons for Hard-Working Women — from Fast Company
• Parental Leave in the US Really Does Suck — from Fistful of Talent
• Background Check Selfie: Good for Job Seekers, Employers Beware — from employeescreenIQ Blog
• How to Accidentally Hire a Convicted Felon — from TLNT
• It Was The Added “0” That Did It—Among Other Things — from Suits by Suits
• ‘Tis The Season To Be … Sick? — from Manpower Employment Blawg
• HR Lessons from TV’s Parks and Recreation — from Blogging4Jobs

Wage & Hour

• How Much Does It Cost To Make A Wage And Hour Case Go Away? — from The Wage and Hour Litigation Blog
• Surf’s Up: Riding The Wave Of Unpaid Intern Lawsuits — from The Wage and Hour Litigation Blog
• FACT OR FICTION: Giving a part-time employee full-time hours may be FMLA retaliation? — from Eric Meyer’s The Employer Handbook Blog
• Worker With “Crying Spells” After Daughter Was Raped Can Bring FMLA Claim — from Atlanta Employment Lawyer Blog

Labor Relations

• NLRB Digging Deeper Into Corporate Labor Practices — from Corporate Counsel
• NLRB: “Merit” in Some Charges Against Walmart Concerning Handling of Employee Protests — from Joe’s HR and Benefits Blog
• Double Take — An NLRB Win For Employers? — from Social Media Employment Law Blog
• NLRB, UFCW, and Walmart: A Tail of Two Hours Time — from LaborPains.org
• The reach of the NLRA — from Michigan Employment Law Connection
• Is Federal Labor Law Keeping Unions, Employers from Finding Common Ground? — from Law.com
• NLRB will seek to impose revised union election rules again soon — from The Human Race Horses

photo credit: rustiqueart via photopin cc

Are graduate assistants employees or students?

In Al-Maqablh v. University of Cincinnati College of Medicine (11/5/13), an Ohio federal court answered the question of whether graduate assistants are employees entitled to the protections of Title VII. As with most legal question, the answer depends.

The case concerned the race and national origin claims of a grad student placed on academic probation and ultimately dismissed from the University. Al-Maqablh sought Title VII’s protections as an employee because he “received a paycheck from the University and rendered services to the University by performing extensive research through lab work.” The court, however, disagreed:

Plaintiff received a stipend and/or scholarship after being accepted into the Program. Plaintiff has failed to show that this pay stub was based upon is employment with the University and not a portion of his stipend award. Furthermore, the fact that Plaintiff performed extensive research, as required under the Program, does not make him an employee under Title VII.

Instead, the court looked to the “economic realities” of the relationship between Al-Maqablh and the University to determine whether he was an employee or a student:

Plaintiff participated in the Graduate Program as a student engaging in “courses, seminars and laboratory research during the academic year.” … More importantly, the dominant purpose of Plaintiff’s relationship with the University was educational. Plaintiff’s complaint against the University asserts claims solely related to his academic activities as a graduate student…. [T]he undisputed evidence establishes that the University’s decision to dismiss Plaintiff from the Graduate Program was an academic decision unrelated to Plaintiff’s alleged employment with the University. As such, the undersigned finds that Plaintiff should not be considered an employee under Title VII....

Thus, in this case, the graduate assistant was a student, not an employee. The court made the point, however, that this rule is not universal; the status of a graduate assistant must be analyzed based on the “economic realities” of each individual. If the University had paid Al-Maqablh for his services (as opposed to providing him an academic scholarship), or if the University had dismissed him for an employment reason, as opposed to an academic, reasons, this case likely would have turned out differently.

If you are an educational institution using the services of graduate assistants, do not make this mistake of reading this decision as providing carte blanche to discriminate against graduate assistants (indeed, Title IX would instruct you differently). Instead, understand that these rules are fact specific, and seek legal counsel to guide your actions accordingly.

 

The email curfew for wage-and-hour compliance

As a company you’re doing everything you can to attract and retain young talent, including implementing a broad BYOD policy enabling your Gen-Yers to connect their iDevices to your network. If those employees are non-exempt under the wage-and-hour laws, how do you prevent them from claiming overtime wages for the off-the-clock time they spend receiving, reading, and sending work-related emails?

Have you heard of an email curfew? Me neither, until I read this article in the Kansas City Business Journal (h/t Today’s General Counsel). Here’s the concept:

The law requires employees to be paid for work that their boss either knew or should have known they were doing. If the boss had no reason to know or suspect employees weren’t complying with the curfew, they could be protected.

In other words, you draft a policy (either stand-alone, or as part of your technology or BYOD policies) prohibiting non-exempt employees from emailing off-duty.

At least one management-side lawyer, quoted in the K.C. Business Journal article, is skeptical of using these curfews as a wage-and-hour compliance tool.

“While an email curfew is a clever idea that might in certain circumstances be justified, it typically isn’t going to be much of an answer.” That’s because in most cases it’s unenforceable or could potentially anger clients who might find other companies that are willing to respond to requests 24/7.

I’m not nearly as cynical about the effectiveness of an email curfew to stave off wage-and-hour issues for off-the-clock emailing. If you tell employees not to read, send, or otherwise work on emails off work hours, and an employee disobeys, that employee is subject to being disciplined. Yes, you still have to pay him or her for the “working” time (which would be at a time-and-a-half premium if the typical work week totals 40 hours), but punishing one employee for violating an email curfew will go a long way to deterring the many from future violations.

The more difficult issue, however, is balancing the need for instant access versus the cost of paying your employees for that responsiveness. This business decision will vary from company to company (based, in part, on a company’s culture), and will dictate how you react to this compliance idea.

photo credit: Thomas Hawk via photopin cc

EEOC tackles national-origin discrimination

Have you seen the story about the employee at an Ephrata, Washington, Burger King, fired for posting, “Now Hiring Must Be Mexican” on the store’s marquee?

This story is particularly timely, since last week, the EEOC held a public meeting addressing issues with national-origin discrimination. 

The seven speakers highlighted various issues, including the plight of immigrants, harassment, English-only policies, and the challenges facing multi-cultural workplaces. 

America’s workforce will continue to personify our melting-pot moniker. Employers need to u detests nd and pay attention to these issues of national-origin discrimination, if for no other reason than the fact that the EEOC is watching, and litigating enforcement actions when necessary. 

When the boss is accused of unlawful acts, respond appropriately #RobFord

My law school alma mater, Case Western Reserve University, is currently embroiled in a nasty lawsuit filed by a professor, who alleges that the Dean retaliated against him after he opposed the Dean’s sexually harassing behavior. This is how my school publicly responded:

To the Alumni of the School of Law:

I write today to announce the appointment of health law scholar Jessica Berg and international law expert Michael Scharf as Acting Deans of the School of Law. Longtime faculty at the school, they bring unique experience and expertise to the roles, as well as a history of effective collaboration with one another on school committees. They are widely respected among faculty, staff and students, and will do an outstanding job of building on the school’s recent academic progress….

Of course, we also face obstacles. The pending litigation and accompanying publicity has proved challenging for all of us. Even as the school focuses on its academic priorities, we continue to pursue a thorough and deliberate process regarding the claims raised. As mentioned earlier, we have engaged outside counsel, who in turn has retained an independent investigator. The investigator will review the claims raised and also assess the reviews we conducted in 2011 when concerns first came to our attention. We are committed to taking the time necessary to handle this matter in a full, fair and objective manner; it is not only the right thing to do, but also is in the best interest of the school and university in the long run.

As always, we appreciate your support and involvement with the School of Law. You will continue to receive updates from me and our Acting Deans as developments warrant.

Toronto Mayor Rob Ford is currently embroiled in a mess of his own, which includes, among other things (i.e., smoking crack), that he sexually harassed a former assistant. This is how Rob Ford publicly responded (warning, salty language ahead):

How you choose publicly to respond to allegations is open to cross-examination in later depositions and at trial. Which response would you be more comfortable defending, CWRU’s or Rob Ford? The answer is obvious, and should guide your company’s actions when a high-profile lawsuit demands a public response.

WIRTW #297 (the “Mulhall” edition)

On Wednesday, the Supreme Court heard oral argument in Unite Here Local 355 v. Mulhall. This case will decide (hopefully) whether labor unions can legally circumnavigate the secret-ballot election procedures of the National Labor Relations Act by reaching agreements with employers to recognize labor unions upon a presentation of recognition cards signed by a majority of employees.

My favorite exchange from the oral argument illustrates my concern over the coercive nature of card-check recognition:

CHIEF JUSTICE ROBERTS: Well, will you … concede that [card check agreements are] more coercive than a secret ballot? … The union organizer comes up to you and says, well, here’s a card. You can check I want to join the union, or two, I don’t want a union. Which will it be? And there’s a bunch of your fellow workers gathered around as you fill out the card.

…

JUSTICE SCALIA: And he’s a big guy.

(Laughter.)

Here’s what some of my fellow bloggers had to say in the wake of the Mulhall oral argument:

• Mulhall Oral Argument — from Workplace Prof Blog
• SCOTUS hears “the most significant labor case in a generation.” — from Phil Miles’ Lawffice Space
• CATO’s Trevor Burrus on the “Niggling Problem” in Mulhall — from On Labor
• Supreme Court Hears Argument on Legality of Neutrality Agreements — from Labor Relations Today

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

Discrimination

• My favorite legal theory, the “honest belief” rule — from Warren & Associates Blog
• Employment Law Made Unscary: Gina — from Manpower Employment Blawg
• Between two laws: When ADA and FMLA overlap — from HR idiot
• Employment Law Statistics Tell Part of a Story; Still Waiting for CHRO — from Dan Schwartz’s Connecticut Employment Law Blog
• Is it Only a Matter of Time Before LGBT Individuals Have Federal Employment Protection?? — from The Blue Ink
• ENDA (Banning Sexual Orientation Discrimination) Passes In Senate What It Will Mean If It Becomes Law — from Donna Ballman’s Screw You Guys, I’m Going Home
• Employer’s Injured-player Analogy Backfires in ADA Suit — from Smart HR Manager
• What should we do? Employee says he’s allergic to co-worker’s service dog — from Business Management Daily

Social Media & Workplace Technology

• Your Phone Number Is Going To Get A Reputation Score — from The Not-So Private Parts
• Former Employee Defames Employer with Website — from San Antonio Employment Law Blog
• How to Balance Your Personal and Professional Lives on Social Media — from Social Media Strategies Summit Blog
• Seventh Circuit Weighs In on Firing for Facebook Posts — from Corporate Counsel
• Another Facebook Firing Is Upheld — from Molly DiBianca’s Delaware Employment Law Blog
• Social media: Are courts being more understanding? — from HR Morning

HR & Employee Relations

• Four Ways Bosses Cause Stress in the Workplace — from Mike Haberman’s Omega HR Solutions
• Is it a smart move for a company to make work-life balance policies? — from ABA Journal Daily News
• Disney on the Defensive for Background Screening Policies — from employeescreenIQ Blog
• “Drug-Free Workplace Policy Builder” from the Department of Labor — from Eric Meyer’s The Employer Handbook Blog
• Non-Solicitation Means Don’t — from Work Place Coach Blog News
• Microsoft axes its controversial employee-ranking system — from The Verge
• What I Don’t Know About Your Non-Compete Can’t Hurt Me, Right? — from Suits by Suits
• Curse Words & Racial Slurs — from CostofWork
• Nine preliminary lessons from the Miami Dolphins workplace bullying story — from Minding the Workplace

Does social media change the meaning of “solicitation?” (redux)

Earlier this year, I asked the following question: “Does social media change the meaning of solicitation?” I concluded that absent a contract directly defining social media connections as a “solicitation,” “passive” social media activities, such as “continuing an already existing online relationship via social media” will not violate a non-solicitation agreement.

In my earlier post, I was discussing whether maintaining already existing Facebook friends violated a non-solicitation agreement. Yesterday, the National Law Journal brought us the next evolution of this issue: whether a LinkedIn profile update alerting connections about a new job constitutes a “solicitation of business” in violation of a non-compete agreement. According to the order issued by a Massachusetts trial court judge in KNF&T Inc. v. Muller [pdf], the answer is no.  

In that case, Charlotte Muller’s former employer claims that she violated the no-solicitation covenants in her non-competition agreement by posting her new position on her LinkedIn profile, which, in turn, notified her hundreds of contacts of her job change. Her old company claimed, “To the extent this notification has been sent to current KNF&T clients, this notification constitutes a solicitation of business in direct violation of her non-competition agreement.”

The trial judge addressed the LinkedIn issue in a footnote in his order denying the company’s request for a preliminary injunction:

The same reasoning applies to the evidence that Muller currently has a Linkedln profile disclosing her current employer, title, and contact information, and counting among her “Skills & Expertise” such things as “Internet Recruiting,” “Temporary Staffing,” “Staffing Services,” and “Recruiting.” There is no more specific mention of any of KNF&T’s “Fields of Placement” than this. So long as Muller has not and does not, prior to April 12, 2014, solicit or accept business in the Fields of Placement for herself or others (including her new employer), she will not have violated the covenant not to compete.

In other words, the company’s own agreement doomed its argument that the LinkedIn update constituted a breach.

How do you protect your company if you want to include social media announcements of a new job as violations of a non-solicitation agreement? Draft the agreement accordingly:

“Solicitation” includes, but is not limited to, offering to make, accepting an offer to make, or continuing an already existing online relationship via a Social Media Site, or updating an account or profile on a Social Media site to communicate to, publicize to, or otherwise advise online connections or relationships about a new position of employment with an employer other than the Employer to this Agreement. “Social Media Site” means all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, in addition to any other form of electronic communication.

We’ve yet to see a case in which a judge has been asked to uphold such an agreement. It should go without saying, though, that you have a much better chance of enforcement with the language than without. More importantly, however, this case illustrates that social media is not creating new laws, but is merely creating new applications of existing laws to an evolving communication and technology tool.

The fluctuating rules for the fluctuating workweek

After yesterday’s jaunt through Bikini Bottom, I’m swinging the blogging pendulum back to more academic pursuits. Today’s lesson: the Fair Labor Standards Act’s fluctuating workweek.

Merely paying an employee a salary does not render an employee exempt from the FLSA’s overtime requirements. Indeed. There is a whole class of non-exempt salaried employees. These employees, even though salaried, earn overtime for any hours worked in excess of 40 in a week.

How is that overtime calculated? As an employer, you have two options:

1. Under the standard method, you calculate the employee‘s weekly rate based on the salary divided by the number of hours worked that week, and then pay the employee 1.5 times that rate for all overtime hours. Thus, if a non-exempt employee earns a salary of $1,000 a week, and works 50 hours in a week, the employee would earn an additional $30 per hours worked over 40 ($1000 / 50 = $20 per hour base weekly rate x 1.5 = overtime premium of $30). Thus, in this week, the employee would earn an additional $300 for the 10 hours of overtime, rendering his total pay for that week $1,300, not his customary $1,000 salary. 

2. Under the fluctuating workweek method, you include the base-rate part of the overtime premium in the employee’s weekly salary, and only pay the 0.5 premium kicker as overtime. Using the same example as in number 1 above, the employee would still have an hourly rate of $30, but would only earn an additional $100 for the week, as under this method, $20 of the $30 overtime rate has already been paid as part of the base salary.

As you can see, there is a clear economic advantage to employers using the fluctuating workweek calculation to pay overtime to salaried non-exempt employees. Under the FLSA, however, an employer cannot unilaterally implement the fluctuating workweek calculation. Instead, to pay salaried, non-exempt employees via this advantageous method, you must meet these four elements :

1. the employee’s hours must fluctuate from week to week;

2. the employee must receive a fixed salary that does not vary with the number of hours worked during the week (excluding overtime premiums);

3. the fixed amount must be sufficient to provide compensation every week at a regular rate that is at least equal to the minimum wage; and

4. the employer and employee must share a “clear mutual understanding” that the employer will pay that fixed salary regardless of the number of hours worked.

For a salaried non-exempt employees, the first three elements are usually easy to meet. It’s number four—the clear mutual understanding—that tends to trip up employers. Consider, for example, Black v. SettlePOU, recently decided by the 5th Circuit Court of Appeals. In that case, the court relied both on the company’s employee handbook’s definition of “workweek” as a predefined number of fixed hours, coupled with the company’s refusal to pay any overtime no matter how many hours the plaintiff worked in a week, to conclude that the employer and employee lacked the requisite “clear mutual understanding.” Thus, the court required that the employer to pay back pay for unpaid overtime based on the standard overtime calculation, not the fluctuating workweek calculation.

Employers, there is a clear advantage to paying your salaried non-exempt employees via the fluctuating workweek. You’ll realize a 66 percent savings on your overtime pay. Just make sure you meet the FLSA’s four-pronged test, and, most importantly, that you and your salaried non-exempt employees share a “clear mutual understanding” (best in a written document) that you will pay them a fixed salary no matter the number of hours worked. Otherwise, your efforts to save some dollars in overtime could result in a more costly wage-and-hour lawsuit.

SpongeBob SquarePants, employment law professor

On a cold, snowy night in the suburbs of Cleveland, what is there to do besides snuggle on the couch with your 5-year-old son to watch the world premier of SpongeBob, You’re Fired? That’s exactly what Donovan and I did last night.

Who knew that such high art would provide the inspiration for today’s post?

The story begins with Mr. Krabs firing SpongeBob from his fry-cook job at The Krusty Krab to save a whole five cents by not paying his wage. Minimum wage be damned, SpongeBob offers to work for free to keep his job. Amazingly, the historically cheap Krabs turns him down, telling SpongeBob that he already looked into it, and it’s illegal to let employees work for free.

Bravo to Eugene Krabs for bringing the plight of the unpaid intern to the forefront of pop culture. Unless you meet the very limited test for an unpaid intern, if you have employees, you must pay them. Employees are not allowed to volunteer their time or work for free.

Clothes make the man, and the wage-and-hour lawsuit

Last week the U.S. Supreme Court heard oral argument in its first employment law case of its October 2013 term, Sandifer v. United States Steel Corp., which asks under what circumstances employers are required to treat as compensable the time employees spend putting on and taking off protective clothing.

The heart of the dispute in the definition of “clothes.” Under the Fair Labor Standards Act, the time changing into and out of clothing is not compensable, while time putting on and taking off “protective gear” is.

So, what qualifies as clothing and what qualifies as protective gear?

The employees’ attorney argued to the Court that anything that employees wear for their jobs is “protective gear,” even if it looks like ordinary clothing. Justice Alito, however, was skeptical of that definition:

I don’t know when a human being first got the idea of putting on clothing. Probably the main reason, was for protection. It’s for protection against the cold, it’s for protection against the sun. It’s for protection against thorns. So you want us to hold that items that are worn for purposes of protection are not clothing?

Yet, other Justices expressed equal skepticism over the employer’s argument that anything an employee wears for work is clothes, not protective gear.

• Justice Sotomayor: “Your definition would include somebody spending an hour of putting on a suit of armor if he’s going to be a jouster.”

• Justice Scalia: “The word of the statute is ‘clothes.’ And nobody would consider eyeglasses or a wristwatch or some of this other specialized equipment to be clothes.”

Reading the tea leaves, this is a case that cries out for a compromised result. Neither side seemed to persuade the Court that either polarized position was a reasonable interpretation of the FLSA. Instead, look for the Court to craft a rule that any gear, whether typically worn as clothing or not, is compensable “protective gear” if it’s intended use is for protection for the specific needs of the job in question.

I’ll report back on the Court’s decision when it is published sometime next year.

WIRTW #296 (the “recap” edition)

This week brought us two big stories, each of which I covered, and each of which are big enough to warrant an wrap-up of posts by some of my fellow bloggers.

Senate Clears a Path for Debate on ENDA

• For employers, the practical side of ENDA — from Michigan Employment Law Connection
• Is This The Beginning of ENDA? — from Currents: Hot Topics in Employment Law
• Interviewed on ENDA — from Walter Olson’s Overlawyered
• ENDA Clears Senate Hurdle but House Prospects Look Grim — from Dan Schwartz’s Connecticut Employment Law Blog
• Senate on the brink of approving bill to improve LGBT workplace rights — from Eric Meyer’s The Employer Handbook Blog

Miami Dolphins Suspend Ritchie Incognito for Bullying Teammate

• Can Jonathan Martin Sue the Miami Dolphins for Bullying? — from Businessweek
• To Haze or Not to Haze at Work — from The Tim Sackett Project
• Telling the Victim in a Harassment Case to Just Fight Back or Toughen Up Is Not a Solution — from Dan Schwartz’s Connecticut Employment Law Blog
• The Cost of Workplace Bullying: Legal Risks and Workplace Disruption — from Michigan Employment Law Advisor
• Fired for What!? - Even NFL Locker Rooms Have Limits — from Phil Miles’s Lawffice Space
• A Lesson about Employee Complaints from the Miami Dolphins — from WinWinHR

I’d also be remiss if I did not thank Sue Reisinger, writing at Corporate Counsel, for linking to my post from last week, Yes, it’s legal… (10 more things companies can do without breaking the law).

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

Discrimination

• Texas Takes On the EEOC: The Case You’ve Been Waiting For — from employeescreenIQ Blog
• Pretext: the litigation dirty word — from Warren & Associates Blog
• An Indefinite Leave Of Absence May Be A Reasonable Accommodation?! Wait, Just A New York Minute… — from Employment Law Lookout
• “Big Data” Could Create an Big Discrimination Problems — from Texas Employment Law Blog
• Sexual Harassment of Interns is Allowed— from i-Sight Investigation Software Blog
• Employment Law Made Un-Scary: ADEA — from Manpower Employment Blawg

Social Media & Workplace Technology

• Google, The One Stop Shop For All Your Legal Research Needs — from The Sociable Lawyer Blog
• Oops! My Bad! Facebook Firing Based on Mistake — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Confessions: Will They Hold Up In Court? — from Augmented Legality
• Employer’s social media policy challenged — from Technology for HR
• Generation Y Users Treat BYOD Rules With Contempt — from Ride The Lightning
• How Does Human Resources Use Social Media? — from Unbridled Talent

HR & Employee Relations

• Employees Stealing Your Data - Still an Epidemic — from Ride The Lightning
• Mitigating Your Trade Secret Risk When Hiring an Employee From a Competitor: The Trade Secret Litigator's Five Golden Rules for On-Boarding A New Employee — from Trade Secret Litigator Blog
• When does LinkedIn Activity Violate Non-Solicitation Agreements? — from Trading Secrets
• Trash Your Noncompete Agreement — from HR Examiner with John Sumser
• Guidance on the Use of Biometric Screenings as a Workplace Wellness Tool — from EmployerBrief

Wage & Hour

• Employee or Independent Contractor? How to Tell if Your Workers Are Misclassified — from The Emplawyerologist
• It’s Past Time To Dispel The “Half-Time” Fog — from Wage and Hour Laws Blog
• Wages for Donning Safety Gear Debated at U.S. High Court — from How Appealing
• Hourly Pay for Weekend Work, Identical to Work Performed During Week and Purportedly Paid at “Day Rates,” Rendered So-Called “Hybrid” Day Rates Impermissible — from Overtime Law Blog
• Employers Fear Exemption Audits And Then Some — from Wage & Hour - Development & Highlights

Labor Relations

• SCOTUS to Ask, “What about the Employees?” — from LaborPains.org
• New NLRB GC Begins Building Labor Legal Team — from Corporate Counsel
• Why US non-union employers cannot ignore the National Labor Relations Act — from Employment Intelligence
• Michael Jackson’s “Thriller:” The Pro-Labor Rendition — from Labor Relations Institute

Senate passes ENDA; historic measure likely to die in the House

From CNN.com:

For the first time, the U.S. Senate approved legislation that would protect gay, lesbian and transgender employees from discrimination in the workplace.

The Employment Nondiscrimination Act, or ENDA, passed the Democratic-led chamber on Thursday, 64 to 32.

Unless House Speaker John Boener has a change of heart, however, those (including me) who favor amending Title VII to include protections for sexual orientation and gender identity will have to keep waiting.

The risk companies run when bullying goes incognito

By now, you’ve likely read about Miami Dolphins offensive lineman Richie Incognito and the abusive voicemails and text messages he sent to teammate Jonathan Martin.

Among the voicemails is this gem (per ESPN):

Hey, wassup, you half n----- piece of s---. I saw you on Twitter, you been training 10 weeks. [I want to] s--- in your f---ing mouth. [I’m going to] slap your f---ing mouth. [I’m going to] slap your real mother across the face [laughter]. F--- you, you’re still a rookie. I’ll kill you.

ESPN also report that Incognito did not limit his use of racial epithets to that lone voicemail, and that he also sent Martin a series of texts that included derogatory terms referring to the female anatomy and sexual orientation.

Meanwhile, Fox Sports reports that Dolphins coaches encouraged veterans to toughen up Martin, and knew that some were using hazing as a means to that end.

I’ve never played organized football at any level, and I’m not going to pretend to know of the culture that exists inside its locker rooms. What I do know something about, however, is corporate culture in general. Your company cannot turn a blind eye to hazing and other bullying-related misconduct.

Unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin…) bullying is probably legal. As the U.S. Supreme Court has famously said, our workplace discrimination laws are not meant to be “a general civility code for the American workplace.” In layman’s terms, our laws allow people to be jerks to each other at work.

Just because it’s legal, however, doesn’t make it right. The question is not whether the law protects the bullied, but instead how you should respond when it happens in your business. If you want to lose well-performing, productive workers, then allow them to be pushed out the door by intolerable co-workers. If you want state legislatures to pass workplace bullying legislation, then ignore the issue in your business. If you want to be sued by every employee who is looked at funny or at whose direction a harsh word is uttered, then continue to tolerate abusive employees.

The reality is that if companies do not take this issue seriously, state legislators will. The high-profile case of Jonathan Martin will only help the cause of those who believe we need workplace anti-bullying laws.

What can you do now to protect your employees?

1. Review current policies. Most handbooks already have policies and procedures in place that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards-of-conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

2. Take complaints seriously. These policies are only as good as their enforcement. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

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.