Why you need employee-invention and IP agreements

Taco Bell is defending claims by two former interns that they invented the Doritos taco nearly 20 years ago. They now want to be paid part of its billions dollars in sales. (ABC News)

The pair and their former employer will likely end up in court over who invented what, and when.

My question is whether Taco Bell required the interns to sign an “inventions” agreement. If they did, then even if the intern’s story is true, they will have little legal leg on which to stand.

A typical employee inventions agreement accomplishes the following:

• It defines that all rights to any inventions, innovations, developments, designs, etc., related to the employer’s business, and conceived, made, or developed by the employee while working for the employer, belongs to the employer and not the employee.

• It includes a promise that the employee will execute any documents necessary for the employer to perfect its ownership interest in any such inventions, etc.

• It provides the employee the opportunity to list, for exclusion, any patents held, or inventions, etc., conceived prior to employment, or for specific assignment to the employer for consideration paid.

These agreements are usually part of a larger confidentiality agreement, or non-competition agreement, but also can be standalone. The point is to avoid any dispute over who created what. If you provide employees the opportunity to list existing ideas and inventions, and to promise that anything they invent while working for you is yours, and not theirs, then nobody should go loco if one of their ideas hits it big, and the employer keeps it.

What happens when an HR investigation is staged … and filmed for a beer commercial?

This.

“Do you always wash your hands after using the restroom? … Have you ever told a coworker you like her outfit? … Do you use your work computer for non-work-related activities? … Have you been using your computer to watch basketball this March?”

I don’t recommend taking an HR investigation as a practical joke in your workplace, but this ad is pretty darn entertaining.

Hypothetical violations doom employer confidentiality policy

A few months ago I posted on the NLRB’s veto of a workplace confidentiality policy. Late last month, the 5th Circuit court of appeals ruled on another employer confidentiality policy, and the results should trouble employers everywhere.

At issue in Flex Frac Logistics v. NLRB was the following workplace confidentiality policy:

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to … our financial information …; [and] personnel information and documents…. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any Silver Eagle Logistics LLC records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

The appellate court affirmed the NLRB’s decision that this policy infringed on the rights of employees to engage in protected concerted activity:

A “workplace rule that forb[ids] the discussion of confidential wage information between employees … patently violate[s] section 8(a)(1).” … As the NLRB noted, the list of confidential information encompasses “financial information, including costs[, which] necessarily includes wages and thereby reinforces the likely inference that the rule proscribes wage discussion with outsiders.” The confidentiality clause gives no indication that some personnel information, such as wages, is not included within its scope.

Particularly troubling is the NLRB’s summary rejection of the employer’s argument that the policy should survive because it had never interpreted or applied it to restrict employees’ Section 7 rights, such as the right to discuss wages. As the court noted, “the actual practice of employees is not determinative,” as long as one could reasonably interpret the policy as a restriction on Section 7 rights.

In other words, employers need to safeguard their policies against what-ifs and hypotheticals, a daunting task. In a passing notation, the court does note that Flex Frac’s policy failed, in part, because it did not expressly exclude “personnel information, such as wages.” Going forward, employers should consider including this carve-out in their confidentiality policies to help avoid NLRB scrutiny.

It's illegal to ask employees to give up overtime payments

If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland security company learned the hard way that employees cannot volunteer to work overtime at less than the required premium rate.

According to Cleveland.com, Citywide Protection Services has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. The comapny’s excuse for not paying overtime? The employees asked.

George Lewandowski, Citywide Protection Services’ president, said he was being characterized as a bad guy when all he had tried to do was help out his employees. Lewandowski said workers kept demanding overtime hours because they needed money.…

“I have a lot of employees who don’t make a lot of money, and they have a lot of kids, so they ask for a lot of extra hours,” he said. “I told them that I really can’t afford to pay all those extra hours, but a lot of them kept begging for hours, just begging for hours.

“I said: ‘I can’t pay the overtime. I’ll let you work at straight time,’” Lewandowski said. “They were aware that I could not pay the overtime—no matter what!”

It does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, you must pay them overtime. Period. No exceptions. Employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all. Otherwise, you might find yourself on the receiving end of a DOL investigation or collective lawsuit, neither of which is an option you want for your business.

WIRTW #316 (the “en francais” edition)

From Mashable:

Employers’ federations and two unions in France signed a “new, legally binding” labor agreement on Thursday that encourages some staff to turn off their phones after 6 p.m., in an effort to curb burnout and promote a healthy work-life balance.

According to the deal, the employees covered under the agreement are not supposed to tend to their work-related emails on their computers or smartphones after the 6 p.m. deadline. The onus lies on employers to ensure that their employees don’t feel the need to work after hours (or pressure them to do so).

The upside? No work emails after 6 pm. The downside? Hundreds of work emails to tend to first thing at 8 am. I think I’ll keep my after-hours email.

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

Discrimination

• Will “Microaggressions” Make Their Way Into Employment Discrimination Cases? Have They Already? — from Dan Schwartz’s Connecticut Employment Law Blog
• 8 reasons your sexual harassment investigation is better than the Clarence Thomas-Anita Hill investigation — from Robin Shea’s Employment and Labor Insider
• Playing golf and having sex are major life activities under the ADA — from Eric Meyer’s Employer Handbook Blog
• Tenth Circuit Denies Review in “Hijab Case” — from Laconic Law Blog
• Interactive process is crucial element of analysis in disability discrimination cases — from Employment Law Matters
• 8th Cir. axes $900K verdict because lawyer told personal law school sex-harassment story at closing — from ABA Journal Daily News
• Ten Best Tips To Stay One Step Ahead Of The EEOC — from Employment Discrimination Report

Social Media & Workplace Technology

• Which Messages Go Viral and Which Ones Don’t — from Harvard Business Review
• We Were Yelpless, Yelpless, Yelpless Yelpless — from The Sociable Lawyer Blog
• Possible porn: Can we search computers? — from Business Management Daily
• Closed vs. Open Social Network ─ What’s the Best Option for Your Company? — from Social Media Strategies Summit Blog

HR & Employee Relations

• Baseball and Work-Life Balance — from DOL’s Work in Progress
• Baseball Star Throws Fans a Work-Life Curveball — from Families and Work Institute Blog
• HBO’s “Silicon Valley” – I’m A Sucker For Shows That Dig Deep Into Work Cultures — from The HR Capitalist, Kris Dunn
• Liars Should Always Be Fired — from Fistful of Talent
• The CEO Must Also Be the Company’s CCO – Chief Culture Officer — from TLNT
• In Battle of Words, Former Netflix Exec Says That Company Defamed Him — from Suits by Suits
• If the NLRB allows employees to telecommute so can you! — from Mike Haberman’s Omega HR Solutions
• Sixth Circuit holds contract clause to arbitrate future claims does not apply to past claims — from Employer Law Report

Wage & Hour

• Why Should Employers Have To Pay Overtime To Employees Who Only Worked Overtime Because They Played Fantasty Football Or Shopped Online During Regular Hours? — from Wage & Hour Defense Blog
• Paid Family Leave: The Next Frontier for National Employers? — from Employment Law Watch
• Does My Employer Have To Pay Earned Sick And Vacation Time When I Leave? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Coming Today: Obama “Equal Pay” Executive Orders — from Phil Miles’s Lawffice Space
• Are The McDonald’s Corporation and Franchise Owners “Joint Employers”? — from Overtime Lawyer Blog
• Employees Can’t Take FMLA Leave for “Potential” Absences in the Future  Jeff Nowak’s FMLA Insights

Labor Relations

• University challenges athlete unionization — from SCOTUSblog
• NFLPA Comes Out In Support Of College Players’ Union — from Deadspin
• Should you stand up to your employer? UPS fires 250 over protest — from Evil HR Lady, Suzanne Lucas
• Can Your Employees Form a Union? — from The Emplawyerologist
• Fifth Circuit Delivers Some Bad News For Employer Confidentiality Policies — from Hunton Employment & Labor Law Perspectives™

6th Circuit sends strong signal to EEOC in affirming dismissal of systemic lawsuit

Last January, a Cleveland federal-court judge dismissed a race discrimination lawsuit brought by the EEOC against Kaplan Higher Learning. In that case, the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. To support its claim, the agency retained an expert witness to rate (i.e, guess) the unknown races of various job applicants based on how they appeared in DMV records. The district court excluded the expert, concluding that his “opinion” was nothing more than guesswork that resulted in inherently unreliable data. With no expert testimony to support its claim, the court dismissed the EEOC’s lawsuit.

Yesterday, in a terse opinion issued a mere 20 days after oral argument, the 6th Circuit affirmed the district court’s dismissal. Here is the entirety of the 6th Circuit’s legal analysis:

We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

This case sends a strong signal to the EEOC that it cannot use junk science to further its agenda of eliminating systemic discrimination. What is so striking of the opinion is the brevity of the Court’s four-line analysis. That the 6th Circuit could make quick work of such an important issue speaks volumes of how little it thought of the EEOC’s litigation strategy.

Yet, the Kaplan case is less about whether credit histories disparately impact African Americans than it is about how the EEOC chose to prove its case. Kaplan did not win this case so much as the EEOC lost it by using junk science to support its claim. Employers should see this case for what it is — a stinging rebuke of the EEOC’s litigation tactics — and nothing more. Employers should not take this case as a license to deploy screening practices that might disparately impact applicants based on race, lest you end up the receiving end of the next EEOC lawsuit.

Has workplace drug testing gone to pot with legalized marijuana?

Late last year, I asked the following question: Can an employer fire an employee who tests positive for legally prescribed marijuana? It appears that employers are indeed struggling with this question. New Jersey transit is the latest employer to be sued as a result of an employee’s use of legal marijuana. NJ.com reports that an employee has sued the transit agency for disability discrimination after it suspended him and sent him into rehab because he is a registered patient with the state’s medical marijuana program.

This case is the latest challenge by an employee who suffered at work through the legal use of marijuana. So far, the employer has won each of these challenges on various legal grounds (see here, here, and here).

Medical marijuana is legal in 20 states plus the District of Columbia. Ohio is not one of these states. Nothing, however, would stop one of your Ohio employees from legally using while on vacation in Colorado, for example. Regardless, marijuana remains illegal under federal law. And, the ADA does not protect employees under the influence of illegal drugs. Thus, I remain confident that you can legally prohibit employees from being under the influence of marijuana while on the job, even if its legally prescribed. As for the lawful use of marijuana by employee outside of work, there is no clear rule of law, even if the cases so far seem to support an employer’s right to regulate. Until the courts sort these issues out, prudent employers should tread carefully and consult with their employment counsel before disciplining or firing any employees who are using legally prescribed marijuana away from work.

Differences of opinion show why we need ENDA

In response to last Tuesday’s post on an Ohio case refusing to protect “sexual orientation” under Ohio’s sex-discrimination laws, EEOC Commissioner (and Twitter friend) Chai Feldblum recommended that I check out a recent decision from the District of Columbia, Terveer v. Billington.

In that case, Peter Terveer, a Library of Congress employee, sued his supervisor for sex discrimination, alleging that the supervisor had created “a hostile environment” by subjecting him to a slew of anti-gay comments.

The employer argued for the dismissal of Terveer’s complaint, since Title VII does not include protections against sexual-orientation discrimination. The court disagreed, and permitted Terveer’s case to proceed under Title VII’s protections from sex discrimination and religious discrimination:

Under Title VII, allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim.… Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes.… 

Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs.” … [P]laintiffs state a claim of religious discrimination in situations where employers have fired or otherwise punished an employee because the employee’s personal activities or status—for example, divorcing or having an extramarital affair—failed to conform to the employer’s religious beliefs.… The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual.

This article at Slate.com argues that Terveer shows that anti-gay job discrimination is already illegal. To the contrary, the more prudent conclusion is that Terveer, when contrasted against Burns v. The Ohio St. Univ. College of Veterinary Medicine (the Ohio case I discussed last Tuesday), demonstrates that different courts can, and do, reach different conclusions on this issue. Instead of showing that anti-gay discrimination is already illegal, these cases illustrate the need to amend Title VII to make it absolutely clear that sexual-orientation discrimination is not only abhorrent, but is also illegal.

It’s okay to “gossip” in the workplace, as long it’s not “negative,” says the NLRB

Earlier this year, I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications.

In Hills & Dales General Hospital [pdf], the NLRB found unlawful (most of) each of the following three provisions of the employer’s “Values and Standards of Behavior Policy.”

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The NLRB concluded that paragraphs 11’s and 21’s prohibitions on “negative comments” and “negativity” are illegal because an employee could reasonably construe those policies “to bar them from discussing with their coworkers com- plaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.”

The NLRB also concluded that paragraph 16’s “requirement that employees ‘represent [the Respondent] in the community in a positive and professional manner’ is just as overbroad and ambiguous.” According to the Board, employees would reasonably view the language “as proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived as ‘positive,’” such as discouraging employees from “engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment.”

There are two points of note from this opinion:

1. There was no allegation that the employer had disciplined or terminated any employee under any of the challenged rules. Nevertheless, the Board concluded that it could still find the work rules facially invalid. Thus, this case serves as a reminder that a policy could be illegal whether or not you act on it; merely having the policy is enough for the NLRB to take action.

2. The NLRB takes no issue with paragraph 21’s prohibition on “gossip.” Indeed, in the underlying ALJ decision, the judge noted that paragraph 21 “would arguably be on solid ground” if limited only to a prohibition on gossip. If workplace gossip is a toxic cause of discontent in your workplace, this case may serve as a signal that a narrowly drafted no-gossip policy may pass scrutiny by the NLRB, as long as you don’t include “negativity” in your prohibition.

WIRTW #314 (the “pale force” edition)

Meet my new best friend, the very funny Jim Gaffigan, pictured with my other best friend (my wife) and me:

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

Discrimination

• 3d Cir. Provides "Temporal Proximity" Retaliation Analysis — from Phil Miles’s Lawffice Space
• Fines To Increase For Failing To Post Notice Of Anti-Discrimination Rights — from HR Law Matters
• “Egregious” Same Sex Harassment Suit Settled By EEOC For Over $2 Million — from Employment Discrimination Report
• Boss seems to be seeking young “dream team”? Be alert for possible age discrimination — from Business Management Daily
• A post about David Crosby, alcohol, and the ADA — from Eric Meyer’s Employer Handbook Blog
• Message to Employers: Stick to your story — from EmployerLINC
• Depressed employee’s vacation leave request did not qualify for FMLA protection — from Employment Law Matters

Social Media & Workplace Technology

• Disgruntled employees mount uprising on Twitter — from Quentin Fottrell at WSJ’s MarketWatch (thanks for the quotes)
• The Founder of Reputation.com Answers Reader Questions — from You’re the Boss Blog
• Mobile content management and BYOD: the Dropbox catch-22 — from Information Age
• Management Monday: Quit Oversharing — from Delaware Employment Law Blog

HR & Employee Relations

• Enforce your dress code without making your employees hate you — from Robin Shea’s Employment and Labor Insider
• Bill Gates on the Future of Employment (It’s Not Pretty) — from Evil HR Lady, Suzanne Lucas
• Germany bans managers from calling or emailing staff after work hours — from InhouseBlog.com
• HR and the Art of Nudgery — from Mike Haberman’s Omega HR Solutions
• It’s Getting Foggy Out There: In The Haze of E-Cigarette Popularity and Regulation, What’s an Employer To Do? — from Employment Law Lookout
• 9 workplace policies your organization should have — from Ragan.com

Wage & Hour

• A tipping point for Baristas — from The Human Race Horses
• Independent Contractor Compliance: What Employers Need to Consider — from TLNT
• FLSA Revisions Won't be Quick or Easy — from Wage & Hour Insights

Labor Relations

• NLRB Finds that not all Whining and Complaining Protected by NLRA — from Pennsylvania Labor and Employment Blog
• Keeping policies legal: Don’t ban employees from talking about pay — from HR Hero Line
• How Would An NCAA Union Actually Work? A Guide For Perplexed Pundits — from Deadspin
• Northwestern NLRB Decision is a Nightmare for University GCs — from In House
• Employee Confidentiality Agreements – Time to review in light of the NLRB’s position being asserted in various cases — from Business, Employment and Real Estate Law in Ohio
• NLRB Charges Keebler Elves and Burritos Equal Big Bucks — from All in a Day’s Work
• Drafting Social Media Policies in 2014 — from Augmented Legality

If you don't want anti-bullying legislation, give me a “Hell Yeah!”

Bullying in the workplace isn’t illegal, unless it’s bullying because of some protected characteristic (sex, race, etc.). Yet, just because something is legal doesn’t mean it should be condoned.

According to Today’s General Counsel (citing the Workplace Bullying Institute’s 2014 US Workplace Bullying Survey [pdf]), an astounding 72% of employees report that their employers have not done anything to curb bullying in the workplace.

The quickest way to ensure that generalized workplace bullying becomes illegal is for employers to continue to ignore it. If employees continued to report that they are being bullied, and that their employers are not doing anything to stop it, legislatures will step in and pass anti-bullying laws.

So, what should you do? Treat bullying like it’s illegal. Create a workplace culture in which bullying is not permitted to occur.

• Include bullying in your anti-harassment or other workplace conduct policies.
• Train your employees about how you don't allow bullying, and what to do (i.e., how to report) incidents of bullying. 
• When an employee complains about bullying, don’t ignore it, investigate it. 
• After the investigation, implement corrective actions, commensurate with the severity of the conduct, to reasonably insure that it does not reoccur.

You might think it’s okay to ignore bullying in your workplace because there is no law against it, but legislatures won’t. They will fill the void with laws that you will not like (and, if the Workplace Bullying Institute’s survey is anywhere close to accurate, 72% is a big void). Do right by your employees. Do not give legislatures any reason to pass over-reaching laws that will hamper your ability to manage your employees.

Heed these words, which I wrote all the way back in 2011:

Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack incentive to act preventively and responsively. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.

Or, to put it in simpler terms, do the right thing, or the government will eventually make you.

Social-cultural discrimination does not equal race discrimination

Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions [pdf], the answer is no.

CMS maintained the following policy, which it interpreted to prohibit employees from wearing dreadlocks:

All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines … hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

The EEOC claimed race discrimination following CMS’s rescission of a job offer after a job applicant refused to cut her dreadlocks. The court, however, disagreed, dismissing the EEOC’s lawsuit. The court made a key distinction between immutable, protected characteristics (such as race) and mutable, unprotected characteristics (such as hairstyle):

It has long been settled that employers’ grooming policies are outside the purview of Title VII…. The EEOC asserts that the policy itself was discriminatory because it was interpreted to prohibit dreadlocks, which is a hairstyle. Title VII prohibits discrimination on the basis of immutable characteristics, such as race, sex, color, or national origin. A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic….

The court also refused to take the EEOC’s bait to equate culture to race:

According to the EEOC, the definition of race should encompass both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group. But as the defendant points out, to define race by non-unique cultural characteristics could lead to absurd results. For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites. Moreover, culture and race are two distinct concepts….

Title VII does not protect against discrimination based on traits, even a trait that has a socio-cultural racial significance.

I’ve discussed dreadlock discrimination before, but in the context of religious discrimination. In this context, the court got this case 100% correct. Dreadlocks are not a “black” thing. Heck, if you saw any of the photos of 2011’s Occupy Wall Street movement, I can guarantee that you saw lots of photos of white folks with dreadlocks. Nevertheless, this case serves a good reminder that grooming policies remain high on the EEOC’s radar, even if they raise much more of an issue for national origin and religion than race.

Sexual-orientation discrimination ban to become law

My apologies if the headline baited you in, but today is April Fools’ Day, and, no, neither Congress nor Ohio’s legislature is close to amending any workplace discrimination laws to include sexual orientation as a protected class.

But, they very much need to.

I read with great interest a series of opinion pieces in last week’s New York Times, entitled, If Gays Can Marry and Be Fired for Doing So. Among the authors was EEOC Commissioner (and Twitter friend) Chai Feldblum, who argued that marriage equality laws demonstrate that Title VII already protects sexual-orientation discrimination as sex discrimination. On Twitter, I asked Chai if, in light of her op-ed, she believes that we do not need to amend Title VII expressly to include sexual orientation. Her response?

We still need (a strong) ENDA for clarity & certainty. MT @jonhyman: Does this mean you don’t think we need ENDA? http://t.co/HgtvN2ksk3
— Chai Feldblum (@chaifeldblum) March 25, 2014

If you need any greater reminder of the need for the Employment Nondiscrimination Act (ENDA), which would amend Title VII to include sexual orientation and gender identity, look no further than Burns v. The Ohio St. Univ. College of Veterinary Medicine, decided last week by an Ohio appellate court. That case dismissed a claim by a lesbian veterinary resident because Ohio’s workplace discrimination laws do not cover “sexual orientation.”

Each appellate district in this state that has considered such a claim has concluded that the term “sex” in R.C. 4112.02(A) does not include sexual orientation.… Likewise, courts analyzing the analogous provision of Title VII have held that, for purposes of that law, “sex” does not include sexual orientation.…

In this appeal, appellant unabashedly argues for a change in the law. However, this claim and this court are not the forum for achieving the change that appellant seeks.… Legislative measures proposing to amend R.C. Chapter 4112 and Title VII to add the term “sexual orientation” have been, as yet, unsuccessful.… Under our system of separation of powers, this court’s role is limited to interpreting and applying R.C. Chapter 4112 as it currently exists.

Readers, now is the time to end sexual orientation and gender identity in the workplace. It is foolish that we, as a supposedly enlightened society, cannot decide that it’s not okay to discriminate. Let’s end this foolish practice, and send a signal to all of our citizens that we truly are the land of the free and the home of the brave.

What Ben Franklin teaches us about employment law (the #SCOTUS edition)

Some people head to the beach for Spring Break. I head to Philadelphia. An extended school break for my kids provides a good opportunity to visit my family. Plus, we have had a German daughter in our house since August (a 10th grade exchange student), and we promised her that we’d show her some good old fashioned American history.

In walking around Old City, is becomes very apparent that Philly is Ben Franklin’s city.

Among Franklin’s pithy quotes, his most memorable might be, “In this world nothing can be said to be certain, except death and taxes.”

Last week, the U.S. Supreme Court reminded us of this fact in United States v. Quality Stores [pdf]. The issue in the case was whether severance payments made by an employer to an employee are “wages” for purposes of FICA’s payroll tax. The Court unanimously ruled that severance payments are “wages” subject to FICA, reversing the 6th Circuit. IF you are looking for a more detailed analysis of the Court’s reasoning, head over to SCOTUSblog.

This decision seems to be common sense. If, however, you had previously been following the reversed ruling of the 6th Circuit, you need to change your practices and start withholding FICA’s payroll taxes from the severance payments you make to employees. There are lots of radars on which you, as an employer, do not want to appear. As certain as Mr. Franklin was about death and taxes, I am certain that the IRS’s radar tops that list.

WIRTW #313 (the “March madness” edition)

Yesterday, I shared my thoughts on the NLRB’s historic (yet preliminary) ruling on scholarship student athletes as employees. I argued that treating these students as employees could require their employer (the university) to pay them overtime. What other unintended results could this ruling have?

• As one of my Twitter friends asked, will these students have to pay income tax on the value of their scholarships?
• Will injured athletes be entitled to FMLA leave?
• What about reasonable accommodations for injured athletes under the ADA?
• Or what about health insurance coverage under the ACA’s mandate?
• Will recruiting practices be scrutinized for disparate impact?

As you can see, this case asks more questions than it provides answers. The only answer I do know is that the NLRB kicked a hornet’s nest, and it is going to take years for the swarm to settle itself.

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

Discrimination

• Spiderweb Delivery? Is One Year Enough for a Leave of Absence for a Disabled Employee? — from Dan Schwartz’s Connecticut Employment Law Blog
• Accommodations For Pregnant Employees: When Laboring Means More Than Just Hard Work — from Employment Essentials
• Prompt remedial action beats harassment claim — from Warren & Associates Blog
• Should Stuttering Be Classified As A Disability? — from Employment Discrimination Report
• Obesity is a Disability? — from The Blue Ink
• Supreme Court Hears ACA Contraceptive Mandate Cases — from The Employment Brief

Social Media & Workplace Technology

• Facebook reports 1 billion active users on mobile devices and 200 million users on Instagram — from The Verge
• Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations — from Socially Aware Blog
• Plaintiff-employee destroys Facebook posts about her case; court destroys her — from Eric Meyer’s The Employer Handbook Blog
• Think before you delete that Facebook post — from Evil HR Lady
• Social Privacy: Workplace Myth Or Reality? — from TalentCulture
• 5 Employment Law Considerations in “The Cloud” — from Technology Company Counselor

HR & Employee Relations

• Why Likability Matters More at Work — from the Wall Street Journal
• 10 Easy Rules for Background Checks in Hiring — from Robin Shea’s Employment & Labor Insider
• Why you should document when the decision was made! — from Mike Haberman’s Omega HR Solutions
• Can I Just Quit and Claim Constructive Discharge? — from Phil Miles’s Lawffice Space
• Trends in Parental Leave: Looking Abroad, Looking Ahead — from ERC Insights Blog
• Do You Have Employment Practices Liability Insurance? — from The Emplawyerologist

Wage & Hour

• McDonald’s Employees: Not Lovin’ It — from The L•E•Jer
• How Will Expansion of Overtime Eligibility Impact Small Business? — from GMS Blog
• Employees Can’t Take FMLA Leave for “Potential” Absences in the Future — from Jeff Nowak’s FMLA Insights
• Make sure employee is clear about your system for running and counting FMLA leave — from Business Management Daily

Labor Relations

• If you are a CHRO – this should be keeping you (and your people) awake at night — from The Human Race Horses
• Lessons from the NLRB’s Social Media Decisions for BYOD Policies — from Blogging4Jobs
• NLRB Expands Scope of Employer Solicitation of Grievances as Unlawful Coercive Conduct — from Management Memo

The wage-and-hour implications of the NLRB’s Northwestern football player ruling

By now you’ve likely heard that yesterday a regional director of the National Labor Relations Board ruled that Northwestern University’s scholarship athletes are “employees” of the university covered by, and entitled to organize under, the National Labor Relations Act. Labor Relations Today has one of the best summaries and analysis of the opinion I’ve read.

Before everyone starts forecasting the end of college athletics, we need to the remember that this opinion is only the opinion of one person. This case is far from over. Northwestern has already said that it will appeal to the full NLRB in Washington. No matter the result there, the losing party will appeal again to the 7th Circuit. Ultimately, the Supreme Court may weigh in. In other words, this case is years from a resolution. In the meantime, however, expect more petitions to be filed by other groups of athletes at other universities seeking to organize.

The implications of this story, however, go beyond labor unions and the NLRA. If student athletes are “employees” under the NLRA, it is not that much of a stretch for a court to conclude that they are also employees under other federal statutes, like the FLSA. If the FLSA covers college athletes, they are entitled to be paid at least the minimum wage, plus overtime for any hours worked more than 40 in a week. To calculate their regular rate of pay, one would prorate the value of their scholarships over the number of weeks “worked,” and then again by the number of hours worked in each week.

The universities will have arguments. Are their football programs exempt as seasonal? Are the student athletes exempt as creative professionals? These arguments, however, are a stretch. I believe there is a serious risk that if scholarship athletes are “employees” (and that remains a big if), then they are likely owed minimum wage and overtime. In other words, the Northwestern case has huge implications beyond collective bargaining.

This story will continue to evolve over the next many years, and I will keep you updated throughout its twists and turns.

"Motorboating" = $567K harassment verdict

A Galveston, Texas, jury has awarded $567,000 in damages to a former deputy constable who claimed sexual harassment by his former boss. The catch is that the harasser is female and the victim is male.

James Gist claimed that his former boss, Pam Matranga, gave him unwanted lap dances and forced him to “motorboat” her by placing her shirt over his head and holding his face against her breasts.

For her part, Matranga did not deny that she let employees put their heads under her shirt. The Daily Mail quotes her testimony: “If anybody was in a bad mood, like if Phil was in a bad mood, I would say, ‘Phil,’ or to anyone, ‘Do you need to go under the shirt?’ She also claimed, however, that she never asked Gist to go “under the shirt” because he thought it was “creepy.” Clearly, the jury did not believe her.

This case illustrates two important points:

1. Harassment is harassment, whether its a male-on-female, or female-on-male. As long as the harassment is “because of sex,” it’s illegal. Employers that ignore a female harassing a male employee, or don’t take it seriously because “men can handle it,” do so at their own risk. 
2. When complaining of harassment, it can be enough for an employee to complain to the manager/harasser. In this case, one of the employer’s chief defenses is that Gist never complained to management. Gist admitted that he did not complain because he feared retaliation, but that he did tell Matranga that her behavior made him uncomfortable and for her to stop. The court found that sufficient. As Eric Meyer recently pointed out on his Employer Handbook blog, an employee whose only complaint to management about harassment is to the harasser himself (or herself) may be enough to satisfy the employee’s required internal complaint.  If complaining to the harasser is sufficient, employers need to be extra vigilant in spotting harassment, and stepping in each time something seems amiss in the workplace, with or without the receipt of a complaint. 

Please, please, please … be careful what you email

Darren Wyss claims that his former employer, Compact Industries, demoted him on the basis of his gender and replaced him with a female. Wyss’s immediate supervisor was Tracey Brown, one of the company’s owners, and the sister of Michael Brown, another owner. After Wyss’s demotion, Michael emailed his sister, “You demoted Darren without telling me? … Darren is a good worker, too bad he’s male.”

Based on that email, the court—in Wyss v. Compact Indus. (S.D. Ohio 3/12/14)—had little trouble denying the company’s motion to dismiss the sex discrimination lawsuit.

It is reasonable to infer that Michael Brown knew of his sister’s motive for demoting Wyss and was referring to that motive in this email. This plausibly suggests that the decision to demote Wyss, who was otherwise a “good worker,” was motivated by Tracey’s intent to discriminate against men. 

Nothing good comes from putting statements like “too bad he’s male” in emails, or text messages, or voice mails, or any other form of communication. Those words should never leave your lips, let alone flow forth from your fingers in anything typed. Michael Brown may have a logical, non-discriminatory explanation for his statement … or at least he better before he gives his deposition. Even with an explanation, however, his misstep makes his company’s case that much more difficult. Do your damndest to avoid the same miscue.

It's still illegal not to hire someone because they have HIV

Twenty years ago, Tom Hanks won the Best Actor Oscar for his portrayal of Andrew Beckett, a man with AIDS fired by his law firm because of his condition. Last week, the EEOC announced that it has filed suit against Maxim Healthcare Services, a Pittsburgh medical staffing company, for its refusal to hire someone because he was HIV-positive.

The EEOC quotes its Philadelphia District Director, Spencer H. Lewis, Jr., “HIV status does not categorically preclude individuals from working in the health care field. Refusing to hire someone because he is living with HIV is not only shameful, it is a blatant violation of federal law.”

He’s absolutely correct. The ADA protects HIV as a disability. It’s illegal to refuse to hire someone because of disability. Therefore, if the EEOC can connect the dots, this employer is going to have issues. Don’t make the same mistake. Hire blind. Don’t disqualify someone purely because of a medical condition unless that medical condition prevents that person from performing an essential function of the job that a reasonable accommodate cannot cure.

WIRTW #312 (the “overtime” edition)

Earlier this week, I reported on the White House call for the Department of Labor to “fix” the overtime regulations for exempt employees. Here’s what some of my fellow blawgers had to say on this issue:

• What Mr. Obama’s call for new overtime rules means to you — from Mike Haberman’s Omega HR Solutions
• White House Aims to Give More Workers Overtime Pay — from Corporate Counsel
• Mr. President, You want to fix overtime? Good, but please fix it all! — from Michigan Employment Law
• Overtime scheme more dangerous to economy than minimum wage hike — from Overlawyered
• Obama Proposes New Overtime Regs — from Phil Miles’s Lawffice Space

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

Discrimination

• The “N-Word” – “Still A Problem In The American Workplace” — from Employment Discrimination Report
• “Protected class” and the 6th circuit — from Michigan Employment Law Connection
• Is it unreasonable to tell your boss to stop sexually harassing you? — from Eric Meyer’s The Employer Handbook Blog
• ADA: What to do when employee won’t cooperate — from Business Management Daily
• Is the EEOC the New VOGUE? Technical Assistance Publications on Religious Dress and Grooming Released — from All in a Day’s Work
• EEOC Sues Nursing Home, Says It Should Have Accommodated Ill Worker by Shorter Workday — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Do You use Social Media to Recruit? — from The L•E•Jer
• More From The #Jury Box: The Latest on Juries and Social Media — from Augmented Legality
• Why No Wi-Fi? New Workplace Sensitivity Issue to Worry About — from HR Daily Advisor
• BYOD Growth and Midsize Firms — from Midsize Insider

HR & Employee Relations

• The Joy of SOX: What employee activity is "protected"? — from Robin Shea’s Employment and Labor Insider
• Do You Self-Censor At Work? — from Lifehacker
• How to stop bullying in the workplace — from Evil HR Lady, Suzanne Lucas
• Breaking Bad Habits: If Your Resolutions Are Slipping Away — from Ohio Family Law Blog
• How to Have Friends at Work When You’re the Boss — from Harvard Business Review

Wage & Hour

• Up is Down and Outside is Inside? With FMLA, Not Quite Common Sense — from Connecticut Employment Law Blog

Labor Relations

• NLRB files petition for rehearing in D.R. Horton (class arbitration) case — from ADR Prof Blog
• Suit Claims UAW/VW Neutrality Agreement Violates LMRA — from Labor Relations Today
• NLRB continues quest to expand its authority — from EmployerLINC

What a slick union-avoidance campaign looks like

If you’re a $72 billion company that happens to be staunchly anti-union, and money is no object in the education of your employees about how and why the cons of a labor union will undermine the pros of your company and its culture, this is what you get.

Gawker has published Target’s 14-minute employee training video, entitled, “Think Hard: Protect Your Signature.” It espouses the benefits of Target’s open-door and other HR policies, while warning employees about the risks of signing a union authorization card. The video is worth your time (but watch soon, before the inevitable cease-and-desist).

You, however, don’t need billions of dollars of revenue to craft a slick, YouTube-able union avoidance message. You can deliver the same themes in a conference room, with someone (like your friendly neighborhood labor lawyer) talking to your workers. For example, take a look at my post from earlier this year, A Lesson on Union Avoidance, which discusses Wal-Mart’s more low-tech approach, and how you can incorporate some of its themes in your communications to your employees.

The point, however, regardless of the delivery you choose, is to have a message to deliver. It’s part of what I call the TEAM approach to union avoidance:

     Train supervisors
     Educate employees
     Accessibility
     Modernize policies

Understanding that union avoidance starts as soon as an employee walks in your door about applying for a job, and not as soon as a labor union approaches your employees about signing authorization cards, is the first step in honing the right strategy that will keep your company union free.

Lactation at work requires reasonableness on both sides

Photo by Joelk75, via Flickr, cc

Both of my children were formula-fed. It wasn’t for lack of lactation effort. We (or, more accurately, she) tried to feed each naturally. My daughter’s birth followed 72 hours of awful labor, from which we were not sure my wife was going to make it (that’s a story for another day), and my son just did not want to eat. So for reasons that made perfect sense to us, we fed both exclusively by formula. The “lactation specialists” at the hospitals were not happy with us, and they let us know all about it. What they failed to do, however, was talk to us. It was a one-sided conversation, which failed.

In Ames v. Nationwide Mutual Ins. (8th Cir. 3/13/14), Angela Ames claimed that Nationwide discriminated against her because of her sex and pregnancy by not providing her access to a room in which to lactate. We know that lactation discrimination equates to pregnancy discrimination, and yet, in Ames, Nationwide won. Why?

Nationwide won because it had a lactation policy that provided employees reasonable access to a private room to express milk, and because Ames refused to even consider an accommodation when a room was temporarily unavailable.

Nationwide’s lactation policy allowed employees to gain badge access to its lactation rooms after completing certain paperwork that required three days processing. Even though Ames had not completed the required paperwork, the company nurse requested for her immediate access to a lactation room. While the company was processing the request, the nurse suggested that Ames use one of the company’s wellness room, which would become available in 15 or 20 minutes. In tears, Ames quit her job and sued.

The court explained its reasoning for affirming the trial court’s dismissal of Ames’s sex and pregnancy claims:

Ames was denied immediate access to a lactation room only because she had not completed the paperwork to gain badge access. Every nursing mother was required to complete the same paperwork and was subjected to the same three-day waiting period. Further, Hallberg [the nurse] tried to accommodate Ames by allowing her to use a wellness room as soon as it was available and by requesting that Ames receive expedited access to the lactation rooms.… That Nationwide’s policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.

The moral of this story is that evidence of open conversations with your employees about accommodations wins lawsuits. Nationwide won because it tried to work with Ames to find a temporary solution to her problem. Ames lost because she refused to be reasonable under the circumstances. Conflict requires a give-and-take, not a give-and-give. As long as an employer can show equal enforcement of policies, coupled with an effort to work with an employee, most lawsuits will resolve in the employer’s favor. The lactation folks at the hospitals refused to work with us, and they lost their battle. Nationwide tried to work with Ames, and, because she refused, it won their lawsuit. Let this case be a lesson to you, not only in dealing with the unique needs of lactating employees, but in resolving all conflict within the workplace.

Examining the low standard for adverse actions in retaliation claims

Mark Laster worked as a Public Safety Officer/Emergency Officer for the Kalamazoo Department of Public Safety for more than 23 years. After complaining to his superiors that the department was treating him differently because of his race, he alleged that he was denied training opportunities and privileges, singled out for violating at least two department policies that were selectively enforced against him, and disciplined more harshly than his peers for identical violations. 

The district court, however, dismissed Laster’s Title VII retaliation claim, concluding that none of the challenged actions were materially adverse sufficient to support a claim of retaliation. 

The 6th Circuit disagreed. Laster v. City of Kalamazoo (3/13/14) hi-lights the low standard for establishing an “adverse action” to support a retaliation claim:

Plaintiff’s burden of establishing a materially adverse employment action is “less onerous in the retaliation context than in the anti-discrimination context.” … “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … “This more liberal definition permits actions not materially adverse for purposes of an anti-discrimination claim to qualify as such in the retaliation context.”

Thus, the 6th Circuit concluded that the trial court had erred by dismissing Laster’s retaliation claim:

Facing heightened scrutiny, receiving frequent reprimands for breaking selectively enforced policies, being disciplined more harshly than similarly situated peers, and forced to attend a pre-determination hearing based on unfounded allegations of wrongdoing might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. There is a genuine issue of fact regarding whether or not Plaintiff was subject to materially adverse action, and whether Plaintiff’s protected activity was the cause of such action.

By way of contrast, the 6th Circuit also concluded that the same set of facts could not legally support Laster’s constructive discharge claim under Title VII, because of the higher “adverse action” standard under a Title VII disparate treatment claim.

What does all this legal jargon mean from a practical standpoint? It means that when an employee complains about discrimination, or otherwise engages in protected conduct, you must treat that employee with kid gloves. Any action you take against that employee, which one could view as reasonably dissuading any employees from engaging in other protected conduct, will likely be “adverse” under Title VII’s anti-retaliation protections.

Employees who complain aren’t bulletproof, and you can still discipline or terminate a worthy employee, even on the heals of complaint about discrimination or other protected conduct. You must, however, tread very carefully, and make sure that all your i’s are dotted and t’s are crossed, because even the slightest misstep could ring the retaliation bell.

A call for the DOL to fix what is wrong with our wage-and-hour laws

Last week, President Obama called upon the Secretary of Labor to “modernize and streamline the existing overtime regulations.” According to the President, the “regulations regarding exemptions from the Act’s overtime requirement, particularly for executive, administrative, and professional employees (often referred to as ‘white collar’ exemptions) have not kept up with our modern economy. Because these regulations are outdated, millions of Americans lack the protections of overtime and even the right to the minimum wage.”

I could not agree more with the President that the FLSA’s regulations are outdated. In fact, I’ve been calling for a streamlining of the FLSA for nearly three years:

Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

President Obama, Secretary of Labor Perez, and members of Congress, take this opportunity to do something historic and write wage-and-hour legislation and regulations that make sense for 2014. Don’t just increase the current salary level from the current $455 per week to qualify for the white-collar exemptions. That change will do nothing more than create new classes of non-exempt workers. Employers won’t start paying them overtime; instead they will figure out how to limit their hours worked to keep that wages the same.

Instead, use this Presidential call-to-action as an opportunity to examine the entire legislative and regulatory scheme that dictates how employees are paid in this county. You will not help guarantee workers a fair wage putting a band aid on a much bigger problem. The FLSA needs to be scrapped and rebuilt from scratch. Otherwise, you will leave in place in system that is confusing for employers to meet their compliance obligations, which, at the end of the day, is unfair for employers and employees.

WIRTW #311 (the “bossy” edition)

Earlier this week Facebook COO Sheryl Sandberg launched BanBossy.com. She believes that “bossy” is to aspiring female leaders as the n-word is to African-Americans. Sandberg argues that banning people from calling young women bossy will help give them the confidence to lead when they are older.

What a bunch of bunk. You know what will give young women the confidence to lead? Providing them opportunities to lead. How about we focus more on the percentage of female leaders at Fortune 500 companies (a paltry 16.9% of corporate board members, 14.6% of Executive Officer positions, and 4.6% of CEOs) instead of the words we choose to call those who might some day aspire to bridge that gap?

Words are just words. Banning them, no matter how offensive they might be, doesn’t change the underlying thoughts and the resulting behavior. Do you know what happens when you ban a word like “nigger?” People who are inclined to say it think it instead. Banning a word doesn’t end bigotry, it just takes it underground. Banning “bossy” won’t increase opportunities for women just like banning the N-word won’t end racism.

We should all agree that increasing opportunities for women in the workplace is a worthy goal. We are kidding ourselves, however, if we believe that banning a word will help achieve it.

For more critiques of Sandberg’s “Ban Bossy” campaign, see:

• Sheryl Sandberg Is Bossy. So What? — from CareerDiva
• Sheryl Sandberg wrong on “bossy” ban — from CNN
• Recline, don’t “Lean In” (Why I hate Sheryl Sandberg) — from The Washington Post’s She The People

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

Discrimination

• The dilemma of writing your own EEOC position statement — from HR Hero Line
• The EEOC and the FTC Publish Documents Related to Background Checks — from All in a Day’s Work
• EEOC and FTC Tips on Background Checks — from Phil Miles’s Lawffice Space
• Sex Workers Can Sue Their Bosses For Sexual Harassment: An Exchange — from Employment Discrimination Report
• Protecting the Unemployed — from The L•E•Jer
• Beard discrimination? Not really. — from Michigan Employment Law Connection
• Amazing Race Contestants File Employment Discrimination Lawsuit — from Atlanta Employment Lawyer Blog
• Is Sexual Harassment Against Contract Employees Legal? — from Donna Ballman’s Screw You Guys, I’m Going Home

Social Media & Workplace Technology

• On the 25th anniversary of the web, let’s keep it free and open — from The Official Google Blog
• Game On! Are You Ready To Have Fun At Work? — from Employment Essentials
• So, you want to adopt BYOD? — from TiPb
• Your Next Job Application Could Be Via Smartphone — from Mashable
• Should You Separate “Personal Life” on Your Enterprise Network? — from Blogging4Jobs
• EMPLOYEES: Keeping your settlement confidential is easy, so do it! — from Robin Shea’s Employment & Labor Insider

HR & Employee Relations

• Can I Be Funny at Work Without Ruining My Reputation? — from Lifehacker
• Can we ask applicants about their driving records? — from Business Management Daily
• 5 essential steps for vetting job candidates’ credentials — from MonsterThinking
• Additional Restrictions on Employer’s Use of Criminal History Checks — from The Labor and Employment Law Blog
• Creating a Loving Workplace — from Joe’s HR and Benefits Blog
• Why You Should Eliminate Your Paid Time Off Policies — from Fistful of Talent
• Workplace investigation alert: Don’t interrogate your employees — from Warren & Associates Blog
• New York Times Article on Employer Interrogations of Employees — from Wisconsin Employment & Labor Law Blog

Wage & Hour

• Obama Proposes Changes to White Collar Overtime Exemptions — from Dan Schwartz’s Connecticut Employment Law Blog
• Overtime Expansion Coming? — from Manpower Employment Blawg
• In-House Counsel: Review Your Company’s Security Check Process — from In House
• Telecommuting: Good for Morale, Bad for Legal Exposure — from Corporate Counsel
• Hi Ho Hi Ho, it’s Off to Work We Go. — from Michigan Employment Law
• The DOL, Law Students, and Internships — from Workplace Prof Blog
• FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave — from Eric Meyer’s The Employer Handbook Blog
• 12-Month Period Under FMLA — from Workplace Insights

Labor Relations

• Union Faces NLRB Charge for Alleged Rape Threat — from LaborPains.org
• NLRB General Counsel Makes it Clear: He Has an Aggressive Agenda — from TLNT
• UAW’s Election Objections At VW Take An Interesting Turn — from Vorys on Labor
• Volkswagen v. Auto Workers Round 2 — from Labor Relations Institute

EEOC holds public meeting on social media in the workplace #socialEEOC

Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline A. Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

.#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC
— EEOC.gov (@EEOCNews) March 12, 2014

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

• Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
• Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.

The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.

How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws. 

Don't Bieber your deposition

Three years ago, I wrote a post entitled, 10 tips for preparing for your deposition, in which I offered some ideas for how to best prepare to give a deposition in case in which you are a witness. The tips includes the common sense (tell the truth), to the more esoteric (beware leading questions).

Today, I’m updating that top-10 list with an 11th tip: Don’t be a Bieber. Earlier this week, TMZ leaked the video of the highlights (or lowlights, depending on your perspective) of the deposition Justin Bieber gave in a case in which a photographer claims Bieber ordered his bodyguard to attack him. This deposition might go down as the worst performance ever given under oath.


It is rare that you will win a case during your deposition. The person asking the questions is not your friend. The inquisitor is looking for opportunities to trip you up, put words in your mouth, and make you look bad. Yet, while you can’t win a case during your deposition, you certainly can lose it. You can make admissions that you don’t need to make, or you can come off looking like Bieber did in his video—like an a-hole.

The video is entertaining, but it’s also instructive. If you are being deposed, don’t play games. Don’t feign fake ignorance. Don’t get smart or act smarmy. Yes, it’s an unpleasant experience to be under oath. Don’t make it worse by giving a Bieber-like performance.

So, thank Biebs. You provided me the perfect instructional tool for me to show my witnesses before they are deposed, so they don’t act like you.

[Hat tip: Eric Meyer and Phil Miles]

EEOC issues new guidance on religious dress and grooming in the workplace

Law.com, one of the best websites for legal information, recently relaunched. Its relaunch features posts by well-known bloggers, including yours truly.

My first post at Law.com discusses the EEOC’s recently published Q&A on reasonable accommodation of religious dress and grooming in the workplace. Please click over to check out the revamped Law.com, and my first contribution.

Gender equality is dead; long live gender equality!

http://flic.kr/p/dLGTi8

I rarely write about active cases I’m handling. In fact, I can only think of one other time that I was mad enough to do so. Today marks time number two. Each involves a galling lack of professional courtesy.

I’m currently in the middle of a contentious piece of litigation in western Pennsylvania. The witnesses, however, are scattered all of the country, including two in Dallas, who I had to go to court to defeat a motion to compel their attendance in PA for their depositions. On Friday, I received a phone call from plaintiff’s counsel (who is in his mid to upper 70s), in which he told me he intended to take their depositions in Dallas this coming Wednesday and Thursday. I responded that even if they could be available on such short notice (they can’t be), I’m unavailable because my wife is traveling those two days for her job and one of us needs to be home with the kids.

His response floored me. He says, “You’re a lawyer. It’s unprofessional for you to plan your schedule around your wife. She should be at home taking care of the kids.”

We don’t live in an Ozzie & Harriet world anymore. Long gone are the days when a wife would be waiting at home to greet her husband with a pair of slipper and a martini while she put dinner on the table. Women work. My wife (who, by the way, gave up her career for 6 years to stay at home with our children) has restarted her career. Her job requires her to travel, which means we share a travel calendar. To make sure that our kids are never abandoned, we clear all travel with the other’s out-of-town schedule before making our own business arrangements.

Readers, please don’t carry this attitude into your business. There is only one unhappy ending to telling one of your employees that his wife, or she, belongs at home with the children. It starts with law- and ends with -suit. Women have the right to work, and neither they, nor their spouses, should be punished for exercising that right, regardless of their chosen profession.

As for which one of us in my tale was acting unprofessionally, I leave that decision up to you.