Resolve this year to properly handle no-fault attendance policies

For the uninitiated, a no-fault attendance policy terminates an employee who accumulates a pre-designated number of absences, regardless of the reason. For employers with high-volume, high-turnover operations, these policies make a lot of sense as the best tool to manage employee attendance. They are not, however, without their risk. For example, no-fault attendance policies cannot penalize absences that fall under the protective umbrella of statutes such as the FMLA or the ADA. As some employers have discovered, disciplining or firing disabled employees under a no-fault policy can be a costly error.

What about employees on leave for a workers’ comp injury? Can an employer count those absence under a no-fault policy? According to one recent Ohio appellate decision—Scalia v. Aldi, Inc. (12/21/11) [pdf]—the answer is a decided maybe. The court concluded that it is not per se retaliatory for an employer to terminate an employee on workers compensation leave pursuant to a facially neutral attendance policy. The court remanded the case back to the trial court to consider the issue of whether the employer—through the application of its attendance policy— terminated the plaintiff retaliation for instituting, pursuing, or testifying in a workers’ compensation proceeding.

What does this mean? This means that the plaintiff cannot rely solely on the attendance policy to prove retaliation, but must prove that the employer’s reliance on the attendance policy was a pretext for retaliation. A uniformly applied attendance policy will go a long way to disproving this pretext. As mentioned above, however, employers cannot apply attendance policies to penalize employees on leave for FMLA or ADA reasons. Will this lack of uniformity hurt employers in defending against workers’ comp retaliation cases? Or, can an employer lawfully treat FMLA-related and ADA-related absences differently than workers’ comp-related absences. Another court will have to answer these questions in another case. As this case illustrates, employers must tread very carefully when disciplining or terminating an employee who is absent from work because of work-related injury.

Does India have sex discrimination laws?

I have no idea if India has workplace sex discrimination laws. The following classified ad would suggest not:



Does anyone know if this is legal in India? Do I need to tell you that it is the absolute opposite of a best practice to list a position as one for a “Lady Computer Operator … preferably married”?

[Hat tip: my wife]

Did anyone resolve to be less connected in 2012?

Available at http://www.gocomics.com/nonsequitur/2011/12/26

Happy New Year!

Best of 2011: Numbers 2 and 1

   2.  “If I could press a button and instantly vaporize one sector of employment law?”

My answer—the Fair Labor Standards Act. The FLSA needs to go because compliance is impossible…. 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.

   1. The Employer’s Bill of Rights

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees…. The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer’s Bill of Rights.

Best of 2011: Numbers 4 and 3

   4. Charlie Sheen and the National Labor Relations Board

CBS fired Charlie Sheen, in part because he made public disparaging comments about his boss. Charlie Sheen is a member of SAG. He also has his own “performance” problems. Should he file an unfair labor practice charge with the NLRB, based on his own protected, concerted activity—for example, calling his boss a “stupid, stupid little man and a pussy punk”; a “piece of  shit”; a “turd”; and a “clown”?

   3. NLRB says a “f**ktard” is different than a “d*ck” under Section 7

In American Medical Response, the NLRB argued that calling one’s boss a “d*ck” is “not so opprobrious as to lose the protections of the Act” because the “name-calling was not accompanied by any verbal or physical threats.” Yet, in Schulte, Roth & Zabel, the NLRB points out that Section 7 does not protect the “f**ktard” post. What’s the difference, other than the fact that your employees are now aware that they have rights under the National Labor Relations Act, and will run to the NLRB if fired or disciplined for their social media activities?

Best of 2011: Numbers 6 and 5

   6. EEOC sues for disabled shoplifter

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first.

   5. The most important thing you need to know about the ADAAA’s regulations

While the regulations make clear that “not every impairment will constitute a disability,” because of the ADAAA’s expansive definition of disability, most will…. In other words, employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Best of 2011: Numbers 8 and 7

   8. What does St. Patrick have to do with human resources?

Legend tells us that in the 5th century, St. Patrick banished all snakes from Ireland. In honor of the day that celebrates Ireland’s patron saint, consider banishing the following metaphorical snakes from your HR practices.

   7. How do other cultures handle HR?

Monsters, Inc., holds a special place in my heart. It was the first movie my wife and I saw together. As an employment lawyer, then, the following sign at the Mike & Sully meet and greet at Disney’s Hollywood Studios struck exactly the right note…. Interestingly, the last bullet point shows that even Monstropolis sees the importance of covering social media in workplace policies.

Best of 2011: Numbers 10 and 9

   10. Unstable employees, direct threats, and the ADA

Employers faced with a legitimate and potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a “direct threat” and separate the individual from employment.

   9. Wal-Mart v. Dukes does not equal barefoot and pregnant

There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson…. So let’s not overreact to the Wal-Mart decision by arguing that its impact will take women back to the stone age, or, worse, the 1950s. Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.

BREAKING NEWS: NLRB delays employee rights posting requirement until April 30

From the NLRB:

The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.

Merry Christmas!

WIRTW #206 (the “…and a happy New Year” edition)

Today marks the Blog’s last original post of 2011 (if you count a weekly summary as original content). Next week, I will run the 4th annual year-end countdown. In past years, I’ve counted down the top 10 labor and employment stories of that year. This year, I’ll be doing it a little differently. I’ll be recapping what I consider to be the best posts of 2011. Inevitably, we’ll hit some of the year’s biggest stories (social media, Wal-Mart v. Dukes, the EEOC, the ADA) too. What you’ll read, however, are the 10 pots of which I am the most proud from the past year, which will include some (but not all) of the year’s most newsworthy and important stories.

Everyone have a Merry Christmas, Happy Hanukkah, celebratory something else, and a safe New Year. I’ll be back on Tuesday, January 3, with brand new content for 2012.

In the meantime, if you want to give me an early Christmas present, cast your vote for the ABA Journal’s Blawg 100 (here to register, and here to vote). Thanks for your support.

Here’s what I read this week:

Discrimination

• Nothing good comes of forcing employees to go to brothels – from Eric Meyer’s The Employer Handbook Blog
• A GINA tip – from Warren & Hays Employment Law Blog
• Tempest in a flu shot: sex discrimination and religious preference – from John Holmquist’s Michigan Employment Law Connection
• Court Rules Severe Obesity Is a Disability Under the ADA – from Trade Secret / Noncompete Blog
• EEOC Performance in 2011, What it Could Mean for Employers in 2012 – from Employer Defense Law Blog

Social Media & Workplace Technology

• How to use Facebook Timeline – from The Verge
• Social Media E-Discovery: a New World of Proof – from i-Sight Investigation Software Blog
• Social Media: When Sociology and Technology Collide – from Blogging4Jobs
• Social-Media Woes for School Districts – from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Discovery Odds Dropping in Pennsylvania – from Phil Miles’s Lawffice Space
• Another TSA Officer Leaves Personalized Note In Passenger’s Bag (After Finding Marijuana) – from Kashmir Hill’s The Not-So Private Parts
• Tis the Season to Tech the Workplace Halls - Managing Employee Owned Technology Devices – from Jason Shinn’s Michigan Employment Law Advisor
• Smartphones Stressing Employees Out, Employers Encouraging Smartphones – from Workplace Diva

HR & Employee Relations

• Don’t let that employee probationary period lull you into a false sense of security – from Robin Shea’s Employment and Labor Insider
• How to handle office party embarrassments – from Evil HR Lady, Suzanne Lucas
• Don’t Assume an Employee Knows the Rules – from Mike Haberman’s Omega HR Solutions
• Millennials don’t want 9 to 5 – from Gruntled Employees
• Summing Up 2011: Everything is Amazing and Nobody is Happy – from TLNT
• Right On, Jeb – from The ChamberPost
• Who Owns Your Customer Relationships: Your Salespeople or Your Company? – from Harvard Business Review

Wage & Hour

• The Danger In Docking The Pay of Exempt Employees – from Wage & Hour - Development & Highlights
• Minimum Wage, Overtime Requirements Extended to In-Home Care Workers in DOL Proposed Rule – from Wage & Hour Counsel
• Seventh Circuit Finds Employee’s “Work"”Not Compensable Due To Lack Of Employer Knowledge – from Wage and Hour Law Update
• Podcast: How Do Employers Calculate FMLA Leave Around the Holidays? – from FMLA Insights

Labor Relations

• ALJ Again Rules in Favor of Hospital in Closely Watched Flu Shot Case – from Labor Relations Counsel
• Obama NLRB Appointees Could Run Into Congressional Buzzsaw – from Joe’s HR and Benefits Blog
• Department of Interior at Odds With National Labor Relations Board Over NLRA Application to Indian Tribes – from Seth Borden’s Labor Relations Today

The NLRB flexes its rulemaking authority … and business groups flex right back

Yesterday, the NLRB announced that it had formally adopted a final rule amending its election case procedures. The rule is set to take effect April 30, 2012. Among other changes, this new rule significantly shortens the time between when a representation petition is filed and an election is held. For this reason, the rule is known as the “ambush election” rule. According to the NLRB, this new rule is intended to “reduce unnecessary litigation and delays.” In reality, it’s an alternate route to achieve higher union representation rates following Congress’s failure to pass the Employee Free Choice Act.

As quickly as the NLRB announced its adoption of the final rule, the U.S. Chamber of Commerce announced that it had filed a lawsuit in federal court seeking to block them. From the Chamber’s press release announcing the filing:

The Chamber’s lawsuit explains that the National Labor Relations Board’s final “ambush election rule” imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize. The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections.

This lawsuit joins two others that challenge a different aspect of the NLRB’s claimed rulemaking authority—its workplace rights poster, which is scheduled to become mandatory on January 31, 2012. In one of those cases, the assigned federal judge has asked the NLRB to delay its posting requirement to provide her more time to consider the challenge before her.

These are important issues that will affect all private sector employers, and which bear watching as they work their way through the court system. (Of course, if the Republican take back the White House in 2012, all of this administrative wrangling likely becomes moot).

A Hanukkah lesson for employers

The story of Hanukkah tells us that in 165 B.C., the Maccabees led a successful revolt against the Greeks, who had invaded Jerusalem and outlawed Judaism. When the Maccabees rededicated the Holy Temple after expelling the Greeks, they only located enough olive oil for the Temple’s menorah to burn for one night. That oil, however, burned for eight nights, the time needed to prepare a fresh supply—the miracle of Hanukkah.

I’ve been thinking of a way to tie this story to the workplace and impart a lesson to employers. The story of Hanukkah is one of perseverance, courage, and fighting for one’s beliefs. Employers are under assault from all fronts—lawsuits from disgruntled employees, overly zealous regulatory agencies and their overly burdensome regulations, and courts that can lack sufficient resources to address these issues properly. It’s easy for businesses throw in the towel, such as by relocating operations out of the country or by paying ransoms to settle meritless lawsuits. Perhaps the lesson here is to simply hold firm.

Happy Hanukkah.

Sometimes it’s not all about the Benjamins: reinstatement in lieu of front pay

James McKelvey, an Army veteran, lost his right hand and suffered other serious injuries trying to defuse a roadside bomb in Iraq. As if his physical injuries were not enough for him to endure, upon returning home to a civilian job in the Army, his co-workers subjected him to more than a year of disability-related harassment. For example, they repeatedly called him “lefty” and “cripple.” He resigned, believing the work environment was so hostile that he had no realistic option but to quit. He also sued for constructive discharge, for which a jury awarded him nearly $4.4 million in front pay.

In McKelvey v. Secretary of the United States Army (6th Cir. 12/14/11) [pdf], the court concluded that the trial judge was correct by taking the monetary verdict away, and instead ordering that McKelvey return to his Army job (albeit with improved working conditions and higher pay):

McKelvey can be reinstated to work at the armory quickly, without disrupting operations and without displacing another employee. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors. McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projections about his earning capacity and about employment decisions decades into the future.

In this case, reinstatement was the court’s decision, not the employer’s. Nevertheless, it raises an interesting point. If you’ve been sued, and you’re reasonably confident that your company was in the wrong, and you are comfortable reintegrating a litigant into your workplace, don’t fail to consider an offer to bring the employee back to work. It’s called an “unconditional offer of reinstatement,” and when used correctly (with the right employee and in the right case), it is an extremely powerful tool. The key word is “unconditional.” The offer must be to the same or equal position, with equal (or better) pay and benefits, and with full back pay and restoration of other lost benefits. The benefits are several. Such an offer cuts of the employee’s entitlement to back pay or front pay, in addition to severely hampering one’s ability to prove a right to punitive damages.

Consider adding the “unconditional offer of reinstatement” to your quiver of litigation tools. It just might rescue a good employee from the litigation scrapheap, and save you a few dollars too.

Everyone’s a little bit racist?

According to CNN, the Ohio Civil Rights Commission is reviewing the case of a Columbus landlord who has a little problem with African Americans swimming in her building’s pool. Worse, she expressed her opinion via this poolside sign, which reads, “White Only.”

In her defense, the landlord said that she has to “stick up” for her “white rights.” I’m not sure what other reaction I can have to this story other than this:

In all seriousness, there are some cases you just can’t do much about. People are who they are. I once had a racial harassment case in which the accused harasser dropped n-bombs like Braylon Edwards drops passes. Our job as management-side employment lawyers is to know when it's best to go for it and when it’s best to punt. It’s safe to say that I think this Columbus landlord made the wrong decision.

WIRTW #205 (the “11 x 17” edition)

Employers have a mere 6 weeks, until January 31, 2012, to post the National Labor Relations Board’s new employee rights poster. It applies to all employers under the NLRB’s jurisdiction, union and non-union alike. Copies are available for download, in English and Spanish, from the NLRB’s website. For more information, I recommend Dan Schwartz’s Connecticut Employment Law Blog, where Dan posted a nice summary earlier in the week.

(Don’t forget, we’re halfway through December, which means you only have two weeks left to vote for the ABA Journal’s Blawg 100. If you have not yet voted, click here to register, and here to vote. Thanks for your support.)

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

Discrimination

• EEOC sues construction company for not hiring applicant with epilepsy to run heavy equipment – from Walter Olson’s Overlawyered
• Obama EEOC Wipes Out Jobs By Making Hiring More Difficult – from Washington DC Examiner
• 10 reasons for employers to be jolly about the ADA (says the EEOC) – from Robin Shea’s Employment and Labor Insider
• The ADA May Invalidate a High School Diploma Requirement – from Mike Haberman Omega HR Solutions
• The New EEOC: Aggressive, Litigious and High Profile – from In House
• Fact or Fiction: Courts recognize retaliation against ex-employees – from Eric Meyer’s The Employer Handbook Blog
• Baird v. Gotbaum – from Paul Mollica’s Outten & Golden Employment Law Blog
• Plaintiff-Employee’s Case Dismissed for Giving Differing Reasons for Leaving Employment – from Russell Cawyer’s Texas Employment Law Update

Social Media & Workplace Technology

• The 40 Most Memorable Tweets Of 2011 – from BuzzFeed
• Jack and Tweets - A Bad Workplace Combination – from Phil Miles’s Lawffice Space
• A Social Sanity Manifesto for 2012 – from Harvard Business Review
• (Alleged) Rogue Employee of the Week – the Case of the Porn Star Teacher – from damnedif
• Should my employer pay for my cell phone? – from Ask a Manager
• New Study Highlights Warning Signs of Corporate Data Theft – from i-Sight Investigation Software Blog
• The Tablet Revolution and Why It Matters to Your Small Business Technology Plan – from COSE Mindspring
• Smartphone penetration skyrockets in 2011, iPhone becomes No.1 handset – from Boy Genius Report
• Court Denies Motion to Provide Access to Social Networking Sites in Civil Discovery – from The Volokh Conspiracy
• Louis C.K. sells his latest live show directly to fans, calls anti-DRM experiment a success – from The Verge

HR & Employee Relations

• Prof says “Rudolph The Red-Nosed Reindeer” promotes bullying – from David Yamada’s Minding the Workplace
• 9 Worst holiday gifts from bosses – from Evil HR Lady, Suzanne Lucas
• The Employee/Employer Relationship: Breaking the Barrier – from Jessica Miller-Merrell’s Blogging4Jobs
• The Inevitable End of Year Employment Move – from Rob Radcliff’s Smooth Transitions
• Is My Offer Letter a Contract? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Your boss may be ruining your marriage – from Life Inc.

Wage & Hour

• Properly Accounting for Holidays in Calculating FMLA Leave – from Stephanie Thomas’s The Proactive Employer Blog
• A Holiday Wage and Hour Checklist: Are You Naughty or Nice? – from SmartHR
• DOL Pushes “Initiative”-Focused FLSA Enforcement – from Wage and Hour Laws Blog
• Southern District of New York Judge Holds that Fair Labor Standard Act Collective Action Waivers in Arbitration Agreements Are Unenforceable As a Matter of Law – from Employment Matters Blog

Labor Relations

• The NLRB: Now Extracting Ransom (for Unions) From An Employer Near You… – from The HR Capitalist, Kris Dunn
• Put the Brakes on Overregulation – from The ChamberPost
• New NLRB Nominations – from Workplace Prof Blog

Is spike in religious discrimination claims a reflection of our polarized society?

We are not a tolerant society. We like to think that we are, but in reality, not so much. Instead, we are a polarized society. More and more, we live on the fringes with little tolerance for those whose viewpoints differ from our own. For example, consider that Lowe’s pulled their ads from TLC’s new reality show, All American Muslim.

We should not be surprised then, that religious discrimination claims in the workplace are trending upward. From Marcia Pledger, writing in The Columbus Dispatch (hat tip: i-Sight Investigation Software Blog):

Equal Employment Opportunity Commission statistics show that religious discrimination complaints in workplace settings have more than doubled from a little over a decade ago, resulting in roughly $10 million in settlements. Last year, nearly 3,800 were filed.

“Religion has increasingly moved into the private sphere, so when it does pop up in the workplace, we’re less equipped to deal with it in a rational and evenhanded manner,” said John Gordon, chairman of the religion department at Baldwin-Wallace College in Ohio.

Our Founding Fathers had enough foresight to separate church and state. 220 years later, we should have enough experience to separate church from work.

Federal Court pilot program tries to simplify discovery in employment cases

No one enjoys paper discovery. Any practitioner who tells you otherwise is either insane or lying. It’s time-consuming and expensive to gather and review information to produce, and it’s painful to squabble with opposing counsel over information withheld.

In an attempt to address and alleviate some of these concerns, the Federal Judicial Center has published its Pilot Initial Discovery Protocols for Employment Cases Alleging Adverse Action [pdf]. These protocols set forth the documents and categories of information that the plaintiff and defendant must turn over during the initial disclosure process, voluntarily and without a formal request, and no later than 30 days after the employer files its answer or responsive pleading. Molly DiBianca’s Delaware Employment Law Blog provides an excellent summary.

These disclosures are comprehensive, and cover many of the documents that will be exchanged in most garden-variety discrimination lawsuits. Of all of these disclosures, I want to point out one curiosity. Employers are not required to disclose the entire employee handbook, but only its table of contents and index. The only policies that employers are required to initially turn over are those “relevant to the adverse action in effect at the time of the adverse action,” such as discipline or EEO policies. 

In light of these protocols, maybe we need to reconsider the rote production of entire employee handbooks in discrimination cases. Maybe we also need to reconsider the inclusion of tables of contents and indices in handbooks, to limit their discoverability at the outset litigation in federal court.

Bullying and at-will employment

David Yamada is a law professor and the director of the New Workplace Institute at Boston’s Suffolk University Law School. He is also the author of the Healthy Workplace Bill, draft model legislation that, if ever passed, would impose liability on employers for employees who are bullied in the workplace, regardless of any protected status.

Yesterday, on his blog (Minding the Workplace), Professor Yamada made the following argument in favor of generalized anti-bullying legislation:

In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless…. In America—in contrast to many other nations—at-will is the presumptive employment relationship. This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.

In other words, Professor Yamada argues that states need to pass the Healthy Workplace Bill because at-will employees can be fired for any (not otherwise unlawful) reason. This argument validates a point I made all the way back in May 2007: the passage of anti-bullying laws will destroy employment at-will.

To quote another point I made just last year:

Employers who turn a blind eye to bullying … are doing their businesses and their employees a disservice. But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit…. Indeterminate bullying … should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.

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,” as Professor Yamada argues. 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.

Lawyers, larps*, and lousy heavy metal: a social media lesson

I spend a lot of time writing and speaking about social media and the workplace, a lot of which discussing what I call the Big 3: Facebook, Twitter, and LinkedIn. Those 3, however, are not the only social media sites that impact the workplace. An example, you ask? YouTube.

Last Friday, Above the Law ran a story about a local attorney’s heavy metal video (which Video Ga Ga recently named the worst video of the year). Please watch—sorry, it will be permanently burned into your retinas. Then, let’s talk.

Being a lawyer is a stressful job. Trust me, I get that. We all need outlets outside of work to relieve that stress. Before I had kids, my outlet was golf. Now, it’s my kids. When your hobby involves dressing up one your company’s secretaries in a bustier, you might want to have second thoughts. It doesn’t take much to turn today’s extracurricular laugh into tomorrow’s harassment complaint.

Social networks offer tremendous benefits as added channels of communication for your employees. “Friending” subordinate employees on social media sites, however, also carries risk. Because of that risk, I advocate that companies train their employees about the dangers of unfiltered online communications and consider implementing policies and guidelines limiting who can connect on Facebook, Twitter, and their kin.

Common sense should instruct employees about right and wrong, but if employees used common sense I’d be out of a job. Apparently, I need to build a module into my workplace social media training program about using subordinate employees as scantily clad extras in bad music videos. Who knew?

---

*Larp: a type of game where a group of people wear costumes representing a character they create to participate in an agreed fantasy world. Uses foam sticks as swords, foam balls as magic and other props to create the games world.

WIRTW #204 (the “Dirty Harry” edition)

Jeff Haden, writing at Inc.com, suggests that you can make an employee’s day with two words.

My suggestion: “You’re fired.”

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

Discrimination

• Expanding mental diagnoses: the legal rub – from Walter Olson’s Overlawyered
• 10 things an employment lawyer never wants to hear – from Robin Shea’s Labor & Employment Insider
• Things Employment Lawyers Don’t Want to Hear – from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC Cries Fowl, Sues Turkey Giant Butterball for Disability Discrimination – from The Personnel Files
• Can My Employer Make Me Speak English, Even On Breaks? – from Donna Ballman’s Screw You Guys, I’m Going Home
• Changes to RFOA Defense in ADEA Claims On Horizon – from Stephanie Thomas’s Proactive Employer Blog

Social Media & Workplace Technology

• Using Social Media Posts as Evidence in an Investigation – from Lindsay Walker at the i-Sight Investigation Software Blog
• Proceed with Caution: Using Sites and Search Engines to Screen Applicants – from Kara Mignanelli at Social Axcess
• Employee monitoring services on the rise: keystrokes, mouse movements, and screenshots – from The Verge
• Facebook Is NOT The Largest Online Social Network, Email Still Rules! Infographic – from Social Media Today
• Mark Zuckerberg’s Private Photos Exposed Thanks To Facebook Flaw – from Kashmir Hill’s The Not-So Private Parts
• Accommodating Cyber Shopping – from HRE Online
• Judge Orders Divorce Couple to Turn Over Facebook Password to Lawyers – from Ethan Wall’s Richman Greer Blog
• Asking Who Owns Social Media? You’re Missing the Point – from Forbes
• Fitness Instructor Fired for Big Mac Tweet – from Molly DiBianca’s Delaware Employment Law Blog
• Electronic Documents and Redaction - A Cautionary Tale – from Phil Miles’s Lawffice Space

HR & Employee Relations

• For Clear HR Blunders, Own Up Immediately – from Russell Cawyer’s Texas Employment Law Update
• Be Cautious Of How Far Back You Are Looking Into An Applicant's Civil Or Criminal History – from Hunton Employment & Labor Law Perspectives™
• 10 HR Action Items for December from HR Magazine – from SHRM Blog
• Hiring Veterans... – from Fistful of Talent

Wage & Hour

• Employees who share porn and take FMLA lose retaliation claims – from Eric Meyer’s The Employer Handbook Blog
• Should Working Moms’ Salary Packages Include A Maid And Nanny? – from Workplace Diva
• First Circuit Rules Banquet Sales Managers Exercised Discretion and Independent Judgment, Qualify for Administrative Exemption – from Wage and Hour Law Update

New rules for removing cases to federal court will impact employers

If you are an employer, or an attorney representing employers (and if you’re reading this blog I’d bet dollars to donuts you fall into one of these categories), the Federal Courts Jurisdiction and Venue Clarification Act of 2011 [pdf] will significantly impact you. Congress passed this bill last week, and PrawfsBlog notes that President Obama expects to sign it into law.

Without getting overly technical (for those who are not familiar with how the removal of cases from state court to federal court works), with some limited exceptions, a defendant has the right to take a case originally filed in state court into federal court if the plaintiff could have filed the case in federal court in the first place. There are two types of cases a plaintiff is jurisdictionally permitted file in federal court: those based on the diversity of the parties (where no plaintiff is a citizen of the same state as any defendant, and the amount in controversy exceeds $75,000), and those based on a federal question (where a claim arises under the Constitution, laws, or treaties of the United States).

The JVCA will make some significant changes in how we remove cases to federal court:

For all removed cases:

• In cases with multiple defendants, it will now be a statutory requirement that all defendants consent to the removal (codifying a long-standing judicial requirement).
• Each defendant will have its own 30-day period after receipt by or service on that defendant of the initial pleading or summons (clearing up a conflict among the circuits, some of which had denied a later-served defendant the benefit of a full 30-day period to file a notice of removal).
• If a later-served defendant is the first to file a notice of removal, earlier-served defendants may consent to the removal even though they had not previously initiated or consented to the removal (also clearing up a circuit conflict).

For removed cases based on a federal question:

• In cases that combine a federal question with non-removable state law claims (workers’ comp claims, for example), the JVCA will require the federal district court to sever the non-removable state law claims and remand them back to state court. This provision presents a risk of bifurcated lawsuits (and duplicative litigation?) in certain instances.

For removed cases based on diversity of citizenship:

• The JVCA adds a bad faith exception to the prohibition against the removal of cases after one year after the commencement of the action. A court can permit this late removal if it finds that the plaintiff acted in bad faith to prevent a timely removal (such as by deliberating hiding the real amount in controversy).
• The JVCA cures the conflict among the circuits in the calculation of the amount in controversy. It permits a defendant to state in the notice of removal the amount in controversy when the complaint is silent, and permits late removal if one learns the amount in controversy via discovery responses. This provision is significant in states like Ohio, which permit boilerplate $25,000 prayers for relief in common pleas court complaints. This provision removes that risk that a defendant who waited to remove a case following discovery on the amount in controversy risked remand based on a late-filed removal. 

It is no secret that employers and their lawyers usually prefer to be in federal court, and removal is often the way we get there. Because the JVCA will affect how we get certain cases into federal court, it is a significant development that warrants our attention. It will go into effect 30 days after President Obama signs it into law.

[Hat tip: @overlawyered]

Pop quiz: is this sexual harassment?

Readers, it's pop quiz time. Do the following allegations support an allegation of a hostile work environment?

• The Plaintiff’s manager stated that he had the best view in the house while walking behind plaintiff and another female employee.
• During a dinner in 2009 with refractive account managers, the manager made a comment about placing his wife in different sexual positions to conceive a boy or girl.
• The manager was present, and laughed, when one of his subordinates told a group of other employees that he did his best interviews with girls in bathing suits.
• During a 2008 National Sales meeting, the Regional Director hugged a female employee receiving an award on stage and mimicked an erection or had an erection. The manager witnessed the incident and just laughed.
• The Regional Director told plaintiff that she had nice legs and he had been watching her in her boots.
• The Regional Director asked plaintiff whether she knew that people referred to another female employee as “tits on a stick.”

According to the court in Kepreos v. Alcon Laboratories (N.D. Ohio 9/21/11), the answer is no:

The Court concludes that these isolated incidents, considered together, are just not severe or pervasive enough such that a reasonable jury could conclude that defendants created a hostile work environment. Accepting all of plaintiff’s evidence, no factfinder could determine that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe and pervasive so as to alter plaintiff’s conditions of employment.

Surprised? Because hostile environment claims are largely subjective, they are tricky to predict. One person’s (or judge’s, or jury’s) hostile environment is another’s isolated incident or workplace trifle. In addition, other facts in a case might sway the judge or jury to a different conclusion. For example, Alcon fired Kepreos because she had embezzled money via her corporate credit card. Do you think her dishonesty motivated the conclusion that her work environment wasn’t sexually hostile?
You might be thinking, if these claims are so unpredictable, how do you defend against them? The answer is prevention. Have a strong anti-harassment policy. Train all of your employees—from the CEO on down to the lowest paid hourly worker—on what the policy means and how it works. Give the policy teeth by consistently enforcing it, both by investigating all complaints and by taking appropriate remedial measures when needed. Create an environment where employees know they can complain without fear of retaliation and with confidence that their complaints will be taken seriously. By following these few steps, you will limit your opportunities to find your company on the receiving end of a tricky harassment lawsuit.

Apple’s social media policy: a lot to like … and one huge thing to hate

How does a hip, cutting-edge company like Apple handle its employees’ use of social media? Apparently, pretty well. 9 to 5 Mac got its hands on the Apple Retail Blogging and Online Social Media Guidelines, and published the details. There’s a lot to read (it's a long policy), and a lot to like.

For example, Apple’s policy strikes an appropriate balance between the management of its reputation and respect for employees’ lives online or away from work:

In general, what you do on your own time is your business. However, activities that affect your job performance, the performance of other Apple employees, or Apple’s business interests are still covered by company policies and guidelines. This applies whether you engage in these activities in or outside of work, and whether or not you identify yourself as an Apple employee….

Be thoughtful about how you present yourself in online social networks. The lines between public and private, and personal and professional are blurred in online social networks. If you identify yourself as an Apple employee or are known to be one, you are now connected to your co-workers, Leaders and even Apple’s customers. You should ensure that content associated with you is consistent with Apple policies.

Apple’s concluding remarks for its employees serve as an excellent boilerplate for any company looking to implement a social media policy:

In sum, use your best judgment. Remember there may be consequences to what you post or publish online including discipline if you engage in conduct that Apple deems inappropriate or violates any Apple policies. If you’re about to post something and you are concerned whether you are following these guidelines or any Apple policy, please discuss it with your Leader or HR before posting.

All is not rosy with Apple’s policy, however. Tim Cook, if you’re reading, give me a call. I have some concerns over what the NLRB might say about the following piece of your policy and its potential to hinder employees’ rights to engage in protected concerted activity:

Respect the privacy of your coworkers. Blogs, wikis, social networks and other tools should not be used for internal communications among fellow employees. It is fine for Apple employees to disagree, but please don’t use your external blog or other online social media to air your differences. Do not discuss your co-workers without their permission, and ask permission before posting their picture. By respecting your co- workers’ privacy you will be helping to maintain the professional work environment at Apple.

Apple, you might want to reconsider a policy that gags your employees and prevents them from “using social media to air … differences.” You don’t want to end up as the biggest notch on the NLRB’s social media belt.

I’m guessing they don’t practice employment law

Wikipedia defines the “casting couch” as “the trading of sexual favors by an aspirant, apprentice employee, or subordinate to a superior, in return for entry into an occupation, or for other career advancement within an organization.” You shouldn’t need to be an employment lawyer to know that the casting couch is a big no-no, right? (Public service announcement: when searching Google Images for “casting couch,” make sure SafeSearch is set to “strict.”)

The ILSCCP Blog (which stands for the Illinois Supreme Court Commission on Professionalism) brings us the story of Samir Zia Chowhan, a (now suspended) Chicago immigration attorney. In his search for a new legal assistant, Mr. Chowhan posted an ad on Craigslist, entitled, “Loop lawyers hiring secretary/legal assistant.” Innocent enough? Did I mention that Mr. Chowhan listed the ad in the “Adult Gigs” section, and that the ad noted that the job called for “additional duties for two lawyers in the firm.”

In response to an email inquiry from a potential applicant, Mr. Chowhan described the “additional duties” the assistant would be expected to provide for him and his partner:

As this is posted in the “adult gigs” section, in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us.

Here’s where the story gets really bizarre. The email also described the firm’s unique interviewing process:

[A]s part of the interview process you’ll be required to perform for us sexually (i didn’t do this before with the other girls i hired, now i think i have to because they couldn't handle it). Because that aspect is an integral part of the job, I think it’s necessary to see if you can do that, because it'll predict future behavior of you being able to handle it when you have the job.

In his defense (insert sarcastic tone), Mr. Chowhan made it clear that previous hires “have not been able to handle the sexual aspect of the job” and that he did not “want you to do anything that you’re not comfortable with.”

One applicant, skeeved by the whole process, filed a complaint with the Chicago Attorney Registration and Disciplinary Commission, which resulted in Mr. Chowhan’s one-year suspension from the practice of law.

Am I alone in thinking that he deserved more?

WIRTW #203 (the “Blawg 100” edition)

The American Bar Association has published its list of the best legal blogs—the Blawg 100. For the second year in a row, I am honored to be selected. These are the kind words the ABA wrote about my blog (and me):

Even readers outside of Ohio will benefit from Clevelander Jon Hyman’s consistent employer-side posts and reading list roundups. Chicago-area lawyer and fan Tim Eavenson writes, “I made a joke once that my career motto was ‘Do whatever Jon Hyman does.’ When it comes to blogging, that’s not far off. Jon posts breaking news … before I’ve even gotten my coffee. Even when there’s 50 posts on a topic by noon, Jon’s take will be unique. Style-wise, Jon’s writing is exactly what employers are looking for: professional and personable. He writes plainly and has fun, but never lets it get in the way of the point. Anybody who pays somebody else should be reading Jon’s blog.”

Flattered? You bet!

The Labor & Employment category includes 8 other worthy reads:

• Molly DiBianca’s Delaware Employment Law Blog
• Donna Ballman’s Screw You Guys, I’m Going Home
• Dinita James’s Arizoneout (a new blog to me, and one I am looking forward to following)
• Robin Shea’s Employment & Labor Insider
• Jeff Nowak’s FMLA Insights
• Mike Maslanka’s Work Matters
• Eric Meyer’s The Employer Handbook
• Dan Schwartz’s Connecticut Employment Law Blog

If you are so inclined, register at abajournal.com and vote (through Dec. 30) for your favorite blawgs.

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

Discrimination

• Hans Bader uncovers a Catch-22 in EEOC enforcement – from PointOfLaw Forum
• Duty to Provide Commuting Accommodations? – from Laconic Law Blog
• Massachusetts Becomes 16th State to Provide Protection Against Discrimination on Basis of Gender Identity – from Wisconsin Employment & Labor Law Blog
• Waterstone on Genetic Discrimination – from Workplace Prof Blog
• Employees Fired for Pornographic Emails Lose Age-Discrimination Case – from Delaware Employment Law Blog

Social Media & Workplace Technology

• Can I Fire This Twit Over That Tweet? – from Lindsay Walker at i-Sight Investigation Software Blog
• Workplace Social Media CYA – from Jessica Miller-Merrell’s Blogging4Jobs
• Social Media Fail, Airline Style – from Harvard Business Review
• Quote of the Day: Another Judge Forces A Facebook Password Handover – from Kashmir Hill’s The Not-So Private Parts

HR & Employee Relations

• Is there a Herman Cain in Your Workplace? – from Kara Mignanelli at Social Axcess
• Be a Jerk: The Worst Business Lesson from the Steve Jobs Biography – from The Atlantic
• Dress Codes: Is Your Ban on Iverson Jerseys and Stretch Pants More About Control Than the Customer? – from The HR Capitalist, Kris Dunn
• Subtle Signals of Disengagement – The “Out of Office” Email... – from Paul Hebert at Fistful of Talent
• Would You Like Fries with that Identify Theft? Thoughts on Limiting Liability for Employee Misconduct – from Jason Shinn’s Michigan Employment Law Advisor
• Lessons from the Penn State Scandal: Reporting Child Abuse at Work – from Employment Essentials
• Onboarding Strategies for Getting Seasonal Workers Up to Speed – from Workplace Insights

Wage & Hour

• I’m exempt but my boss tracks me every minute – from Evil HR Lady, Suzanne Lucas
• Can I Dock Employees for Inclement Weather Days? – from Texas Employer Handbook
• Synagogue youth workers wage-hour suit – from Walter Olson’s Overlawyered
• End-of-Year Bonuses, the Regular Rate of Pay and Overtime – from Russell Cawyer’s Texas Employment Law Update
• Wage and Hour Misclassification Costs Oracle $35 million – from Rush on Business
• How to Explain Stock Options to a Dog – from Compensation Cafe
• Firing an Employee for FMLA Fraud Is Legal, But the Proof Is Hard – from Labor & Employment Law Perspectives
• Employees Take Note: Showing Pictures of Your Boyfriend's Privates Will Doom Your FMLA Lawsuit (or Any Other Lawsuit) – from Jeff Nowak’s FMLA Insights

Labor Relations

• Labor board approves controversial union election rule in 2-1 vote – from The Hill
• NLRB Approves Ambush Election Rule – from The ChamberPost
• NLRB Acts on Quickie Election Proposal – from EFCA & Labor Law Reform Blog
• Here’s a sneak peek into how union-election rules will soon change – from Eric Meyer’s The Employer Handbook Blog
• NLRB: Lockout Equals “Reemployed” – from Labor Relations Counsel

Ohio Supreme Court rewrites, and protects, the tripartite relationship between attorney, client, and insurer

If your business has employment practices liability insurance, or deals with insurance companies for other coverages, you are probably aware of the strange three-headed relationship that exists between you (the insured), your insurance company, and the attorney your insurance company hires to defend you in litigation. One question that always arises in this unique relationship is whether an attorney-client relationship only exists between the attorney and you (the insured), or if it also exists between the attorney and the insurance company. The answer to this question is significant, because if there is no attorney-client relationship between counsel and the insurance company, then the attorney-client privilege will not shield communications between them.

Conventional wisdom in Ohio has been that no attorney-client relationship exists between an insurance company and retained counsel. The seminal case on this issue was Swiss Reinsurance Am. Corp. v. Roetzel & Andress. Earlier this week, however, the Ohio Supreme Court—in State ex rel. Dawson v. Bloom-Carroll Local School District (11/29/11) [pdf]—flipped conventional wisdom on its head. The case focused on the issue of whether someone could compel disclosure, under Ohio’s public records law, of communications between a school district’s insurance carrier and its legal representative. It has much broader implications for the relationship between an attorney and an insurance carrier. The Court concluded that because an attorney-client relationship existed between the insurer and the insured’s retained counsel, the resulting privilege shielded any such communications from disclosure:

In effect, the insurance company stands in the shoes of the district…. Where a person approaches an attorney with the view of retaining his services to act on the former’s behalf, an attorney-client relationship is created, and communications made to such attorney during the preliminary conferences prior to the actual acceptance or rejection by the attorney of the employment are privileged communications.

This case solves a huge problem for employers’ insurance counsel, and consequently for employers. Under Swiss Reinsurance, and because of the lack of any privilege, communications between employment defense insurance counsel and the insurance company were made at the client’s risk. Thanks to a common sense ruling from the Supremes, these communications are now rightfully protected. Counsel should now be able to speak as freely with the insurer as we do with our clients.

Booze, Sex and HR: maintain perspective; accept corporate responsibility

In the spirit of the holiday party season, Mike VanDervort made the following challenge on his blog, The Human Race Horses: On November 30, 2011, write a blog post using the three-word theme of “Booze, Sex and HR.” This is my entry.

Life is full of perspective-defining events. Each chapter in one’s life creates a new perspective that helps shape each successive chapter. One of the chapters that helps define who I am as a management-side employment attorney is the three summers I worked during my college years at a Philadelphia t-shirt wholesaler. The first summer I ran myself over (true story) driving its beat-up delivery van. The next two summers I worked inventory. In retrospect, management must have figured that the college kid could count better than he could drive. The warehouse was full of colorful characters, including one whose idea of employee engagement was to hide buckets of KFC amid the racks of boxes (another true story), and another who complained about not receiving a raise by burning an effigy of the Jewish owner spray-painted with a swastika and the phrase “Die Cheap Jew” (yet another true story). And who could forget the African-American who was (not so) affectionately referred to as either “Ape” or “Gorilla” or simply “N—-er,” depending on people’s whims on any particular day. Suffice it to say this job provided a ton of perspective.

When I returned for my final summer, I noticed that one of the star employees was missing. When I asked what happened to him, I was told that he was fired following that year’s Christmas party. After over-indulging, he decided it was a good idea to strip down to his underwear, grab the owner’s wife on the dance floor, and, well, you can picture the rest.

There is no set of circumstances under which an employee can grind the boss’s wife without consent and in a state of semi-undress and enjoy any expectation of job security. Yet, all of the fault does not lie with this (rightfully terminated) employee. Employers must take some level of ownership over their employees’ holiday party antics when they make available the tools of overindulgence. Holiday parties are supposed to be a celebration of, and a thank you for, the past year. These celebrations and thank-yous do not have to be fueled by enough liquor to drop an elephant.

In this vein, I offer the following as a public service announcement for employers and HR departments everywhere:

• Host responsibly. An office holiday party is not the same as a college frat party.
• Consider holding your party mid-week (or even mid-day), instead of a Friday or Saturday night.
• Limiting the availability of alcohol will curb overconsumption. Making sure enough food is available will also keep people’s drinking in check.
• Limiting consumption will help to limit employees’ misbehavior, legal risks, and potential liabilities (think drunk drivers, sexual and other harassment, fights, and other incivility better left to a Sunday tailgate)
• When employees overindulge, don’t be afraid to cut them off. Make sure trained bartenders and designated sober management-team members are monitoring consumption.
• Just in case, have cab vouchers, designated drivers, and hotel rooms available for those who cannot safely navigate their own way home.

Have a happy and safe holiday season.

RIP Patrice O'Neal

Earlier today, it was announced that comedian Patrice O'Neal passed away. He succumbed to complications from a stroke he suffered last month. Entertainment Weekly offers the details.

Patrice was one of the funniest people on the planet, and he will be missed. Our relationships with celebrities are funny. We feel like we know people we've never met just because we see them on tv or hear them on the radio. I offer my condolences to his family and friends.

In his memory, enjoy an old post of mine discussing one of his bits on sexual harassment.

Supreme Court to hear case on scope of outside sales exemption (and hopefully scope of DOL’s power)

Do you employ outside salespeople (pharmaceutical reps, for instance)? If so, then you are going to want to pay attention to what will transpire at the U.S. Supreme Court next year.

Yesterday, the Court agreed to hear Christopher v. SmithKline Beecham. This case will address two issues:

1. Whether deference is owed to the Secretary's interpretation of the Fair Labor Standards Act's outside sales exemption and related regulations; and 
2. Whether the Fair Labor Standards Act's outside sales exemption applies to pharmaceutical sales representatives.

While issue #2 is more practical, issue #1 has the potential to have the greatest long-term impact. It is no secret that the DOL—with its sweeping enforcement scheme and broad regulatory interpretations—is the bane of employers everywhere. This case has the potential to serve as a judicial referendum on the scope of its regulatory authority. A rebuke by the Supreme Court of the DOL on this narrow issue could signal that the agency’s powers are not as broad as it currently envisions, reigning in the DOL’s other attempts to broaden employee rights via regulatory interpretations.

For more coverage of this important wage and hour development, please click over and read the thoughts of others who got to this headline before me:

• SCOTUS will hear FLSA pharma sales rep case – from LawMemo Employment Law Blog
• SCOTUS Grants Cert. in FLSA Case – from Lawffice Space
• Supreme Court to Hear Arguments on Outside Sales Exemption – from SmartHR
• Supreme Court to Decide Whether Pharma. Sales Reps Are Covered by Outside Sales Exemption – from ZR Workplace Law
• Supreme Court To Decide Whether Pharmaceutical Sales Representatives Meet The FLSA’s Outside Sales Exemption – from The Wage and Hour Litigation Blog
• Supreme Court To Decide Classification of Pharmaceutical Representatives – from Wage and Hour Law Update
• Pharmaceutical Sales Representative Case Goes to Supreme Court – from Wage & Hour Insights

“SAY IT! SAY IT!” Yelling as an essential function

Did you know that the ability to yell at one’s students is an essential function of a teacher? According to Johnson v. Cleveland City School District (6th Cir. 11/15/11), because the ability to “verbally control” resistive students is an essential function of an elementary or middle school teacher, Sha’Ron Johnson was not otherwise qualified for her position with the Cleveland schools and therefore could not succeed on her ADA claims.

After a 1988 car accident damaged Johnson’s spinal cord, she suffered from Cervical Myelopathy, which caused her body to weaken over time, and which could be aggravated by stress or over-exertion. As a result, Johnson’s doctors provided the school district documentation that she “not be required to verbally control resistant behavior in students that persists after initial warning.” The school district, believing that “verbally controlling” students was an essential function of an elementary or middle school teacher or counselor, terminated her employment.

The 6th Circuit agreed: because Johnson was medically unable to “verbally control” students, she was not qualified for any available positions:

As the District explained to Johnson in its letter on July 17, 2007, these restrictions are “problematic.” They seek to exempt Johnson from “the requirement of disciplining students and maintaining order in the classroom,” which is “an essential function of the job.” The District’s letter explained that “[t]he consequences of a failure to maintain such order result in a direct threat to the safety and security of you, the students, and other faculty, staff, and students in the building,” and fail “the responsibility of the District to provide an orderly environment to its students for learning.” …

“Teachers and counselors, whether working with large groups, small groups, or one-on-one, are required to deal with the students in their care, not only when they are quiet and well behaved, but also when they are loud, restless, and possibly belligerent…. Teachers, counselors, and other adults employed at schools need to be physically, mentally, and emotionally capable of managing and controlling students in those circumstances.”

What is the takeaway for employers? Just because the ADA (as amended by the ADAAA) renders virtually every medical condition a protected disability does not render employers defenseless. Essential functions come in all shapes and sizes. When handling an accommodation request from a disabled employee, do not omit consideration of all facets of the job.

WIRTW #202 (the “thankful” edition)

I learned something new yesterday. I learned, from my kindergartener, that the first Thanksgiving feast lasted three days. I am thankful that I am able to learn something new every day—whether from my kids, or from the bloggers and tweeters I follow and whose thoughts I share with you at the end of each week.

The Thanksgiving holiday (and a much needed couple of days off) moves my weekly summary up a couple of days to Wednesday. Even though the week has been short, its been busy. Here’s what I read this week:

Discrimination

• Issue: Doctors, Diapers, and … Discrimination? – from Employment Law Matters
• Pregnancy Discrimination Case Against Chicago Law Firm Allowed to Proceed to a Jury – from Wisconsin Employment & Labor Law Blog
• Is Your Adverse Impact Analysis Arbitrary? – from Stephanie Thomas’s The Proactive Employer Blog
• Federal Express’ Six-Month Limitation on Statutes of Limitations in Employment Disputes Approved – from Fitzpatrick on Employment Law
• A Big Problem: Obesity Discrimination In The Workplace – from Hunton Employment & Labor Law Perspectives™
• Numbers Show That Sexual Harassment Claims on the Decline – from Dan Schwartz’s Connecticut Employment Law Blog
• Can an Evangelical Christian Ask For a Religious Accommodation? (re: Sharing His Faith) – from The HR Capitalist, Kris Dunn
• Public Criticism of Discrimination Claim as Retaliation – from Phil Miles’s Lawffice Space
• The 2011 EEOC Performance and Accountability Report – from Employment & the Law

Social Media & Workplace Technology

• Managing Your Social Media Mullet—Part 1 – from Jessica Miller-Merrell’s Blogging4Jobs
• Social Media Training is Important – and More Companies Need To Do It – from Lindsay Walker at i-Sight Investigation Software Blog
• What To Do When An Employee Violates Your Social Media Policy – from MonsterThinking
• Can you access an ex-employee’s Facebook posts if she sues? – from Eric Meyer’s The Employer Handbook Blog
• Employers Can Discover Employee Facebook Posts, But… – from Social Media Employment Law Blog
• The Worst Way To Lose A Job – from Kashmir Hill’s The Not-So Private Parts
• The Outshiners… – from William Tincup at Fistful of Talent
• Great sex and social media, it’s all about the response – from Mike VanDervort’s The Human Race Horses
• Out on the Town, Always Online – from John Leland at The New York Times
• No 1st Amendment Protection for Teacher’s Facebook Posts – from Delaware Employment Law Blog

HR & Employee Relations

• The Cost of Litigating Competition Cases – from Legal Developments In Non-Competition Agreements
• If you can, give your employees a rest for Thanksgiving – from Robin Shea’s Employment and Labor Insider
• When the CEO refuses to stop dishonesty – from Evil HR Lady, Suzanne Lucas
• Cheating in the Work Place – from Rob Radcliff’s Smooth Transitions
• It’s the holiday season: time to check your solicitation policy – from John Holmquist’s Michigan Employment Law Connection
• 9 Tips For Planning the Company Holiday Party – from Russell Cawyer’s Texas Employment Law Update
• When Employee Misconduct Becomes Criminal - Understanding The Fifth Amendment in Parallel Proceedings – from Michigan Employment Law Advisor by Jason Shinn
• Lessons from Penn State – from Beth Mirza at SHRM  

Wage & Hour

• Paying Employees During Bad Weather Closings – from Mike Haberman’s Omega HR Solutions
• Does An Exempt Employee Who Calls In Sick The Day Before Thanksgiving Get Holiday Pay? – from Wage & Hour Insights
• FLSA Computer Exemption To Get Revised: A Good Thing For Employers – from Wage & Hour - Development & Highlights
• Employer deemed to have interfered with Family Medical Leave Act (FMLA) benefits – from Employment Law Bits

Labor Relations

• NLRB bias is a menace to business – from Rep. Trey Gowdy in The Post and Courier
• NLRB Member Hayes: Board Plans to Ignore its Rules to Push Through “Quickie Elections” – from Seth Borden’s Labor Relations Today
• NLRB Trying to Ram Through Pro-Union Ambush Election Rules – from The ChamberPost
• Breaking: NLRB Member Hayes Details Outrageous Pearce Strong-Arming on Quickie Election Rules – from Labor Relations Institute
• NLRB To Vote On Finalizing Some Election Rules – from Workplace Prof Blog
• NLRB sets vote on portions of proposed election rule – from LawMemo Employment Law Blog
• Whining, Sniveling Employee or Protected Concerted Activity? – from Minnesota Labor & Employment Law Blog 

Sympathy for the Devil (as religious discrimination)

I haven’t always been a lawyer. During a previous life (high school and college), I spent weekends and summers as a bar mitzvah DJ, a nursing home busboy, and a warehouse loading dock guy. At one of those warehouses, I worked with a man by name of Harland Jester. (I provide his name because he named his son “Court,” and this context provides the necessary color for the rest of the story.) Harland was an interesting cat. He believed, for example, that the Freemasons ran the world from a secret office on the 36th floor of Rockefeller Center, and the Lee Iacocca saved Chrysler by making a pact with the devil. This warehouse was full of colorful characters in addition to Harland, many of whom enjoyed a good practical joke. One such joke, played at Harland’s expense, involved a sketch on Harland’s work desk of Mr. Iacocca shaking hands with Satan, with both saying, “Harland, we’re watching you!” Harland did not find the joke nearly as funny as the rest of us, and complained to management. For its part, the company took the path of least resistance, repainting his desk and requiring everyone at attend sensitivity training.

Suzanne Lucas, the Evil HR Lady, shared a story this morning about another employer which could have taken a lesson from my summer job. Billy Hyatt sued Pliant Corp. after it fired him for refusing to wear a sticker with the number 666 (representing the number of consecutive accident-free days) on it. According to the Workplace Prof Blog, Mr. Hyatt’s complaint alleges that he “asked a manager for a religious accommodation on day 666,” and was fired after he refused to work on that day at all.

Sometimes, the path of least resistance makes sense. Is it silly for an employee to refuse to wear “666” on a sticker? Yup. Was the employer within its rights to fire that employee? Maybe. Could the employer have avoided the cost (in legal fees, bad publicity, and a potential settlement or judgment) by simply exempting this employee from the sticker requirement for that one day? Absolutely. Even if this employer was legally in the right in firing this employee—and think about the reasonable accommodation requirements for an employee’s religious beliefs—sometimes it’s just not worth the cost to be right.