“Friending” co-workers depends on your level of organizational risk tolerance

On Time Magazine’s Moneyland Blog, Dan Schawbel asks the following questions: “Is it a bad idea to friend co-workers on Facebook? How about your boss?” In his post, Mr. Schawbel discusses a recent study of 4 million Gen-Y Facebook profiles, conducted by Millennial Branding and Identified.com, which found the following:

• Nearly two-thirds (64%) of Gen-Y Facebook users omit their employers from their profiles.
• Only 16 out of an average Gen-Y Facebook user’s nearly 700 friends are co-workers.

From these findings, Mr. Schawbel concludes:

Gen-Y needs to be aware that what they publish online can come back to haunt them in the workplace. Gen-Y managers and co-workers have insight into their social lives, which could create an awkward workplace setting or even result in a termination.

There is no one-size-fits-all solution to the issues raised by co-workers connecting via social networks. Social sites such as Facebook and Twitter can be a powerful tool for added employee engagement and communication. Because of the the added connectivity, however, they also present an added risk for problems such as harassment, retaliation, and invasions of privacy. You have five options to choose from in the level of connectivity to permit for your employees. Which answer you choose will depend on how you balance the benefit of the added communication versus the risk of potential problems:

1. Anything goes. Any employee can friend any other employee regarding of rank or position.

2. Supervisors are prohibited from friending direct reports, but employees can friend their supervisors (who can choose whether to accept the request).

3. Supervisors and their reports cannot be Facebook friends, regardless of who initiates the request.

4. Employees are only permitted to be Facebook friends with their peers. No one can friend anyone higher or lower on the org chart.

5. Employees are expressly prohibited from being Facebook friends with any co-workers, regardless of position.

Regardless of which option you choose, you should choose one to incorporate into your social media policy, and train your employees about the dangers of unfiltered online communications and the proper use of social media inside and outside of the workplace. Without the appropriate training of your employees on these new and evolving issues, you might as well not have the policy at all.

Is it time to do away with McDonnell Douglas?

For the unfamiliar, the McDonnell Douglas test is an evidentiary framework used in discrimination cases, which lack direct evidence of discrimination, to determine whether an employee’s claim should survive summary judgment and proceed to trial. (For the familiar, skip down the next paragraph.) It first asks whether the plaintiff can establish a prima facie case of discrimination—(i) s/he belongs to a protected class; (ii) s/he was qualified for the position; (iii) though qualified, s/he suffered some adverse action; and (iv) the employer treated similarly situated people outside of his/her protected class differently. If the plaintiff satisfies this showing, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for the adverse action. Once the employer makes this articulation, the burden shifts again, back to the plaintiff to show that the employer’s reason is a pretext for discrimination. This test is engrained in the hearts and minds of anyone who practices employment litigation.

Early this month, in Coleman v. Donahoe, the 7th Circuit (albeit in a concurring opinion), asked whether the McDonnell Douglas test still has any utility:

Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII litigation was still relatively new in the federal courts. By now, however, … the various tests that we insist lawyers use have lost their utility. Courts manage tort litigation every day without the ins and outs of these methods of proof, and I see no reason why employment discrimination litigation (including cases alleging retaliation) could not be handled in the same straightforward way. In order to defeat summary judgment, the plaintiff one way or the other must present evidence showing that she is in a class protected by the statute, that she suffered the requisite adverse action (depending on her theory), and that a rational jury could conclude that the employer took that adverse action on account of her protected class, not for any non-invidious reason. Put differently, it seems to me that the time has come to collapse all these tests into one.

Yesterday, the 6th Circuit, in Donald v. Sybra, Inc. [pdf], helped prove the 7th Circuit’s point. Sybra, which owns Arby’s franchises, terminated Gwendolyn Donald’s employment after it concluded she had been intentionally mis-ringing customer orders to steal from her cash register. Among other issues, she claimed that Sybra terminated her employment both in retaliation for, and to interfere with, her rights under the FMLA. After concluding that the McDonnell Douglas framework applied to both her retaliation and interference claims, the court ignored McDonnell Douglas, and affirmed the district court’s grant of summary judgment to the employer:

The district court effectively gave Donald the benefit of the doubt and assumed that she could establish both prima facie cases. This boon notwithstanding, the district court determined that Donald produced insufficient evidence to prove that Sybra’s stated reasons, cash register and order irregularities, were pretextual….

Donald’s claims fundamentally rest on the timing of Sybra’s decision to terminate her employment [the  day after she returned from her FMLA leave], which, we admit, gives us pause. But that alone is not enough, and her other arguments are no more persuasive. Whether Sybra followed its own protocol, or its decision not to prosecute Donald, or even Donald’s history of employment, provides neither us, nor a rational juror, with a basis to believe that Sybra’s decision was improper. The district court therefore correctly dismissed Donald’s FMLA claims.

If courts skip the first two steps of the McDonnell Douglas test and go right to the heart of the matter—whether a rational jury could conclude that the employer took that adverse action on account of her protected class—does it make sense to continue the charade of pretending that McDonnell Douglas remains useful? As a management-side litigator, I like the ability to have more than one evidentiary bite at the apple in trying to get a case dismissed on summary judgment. As a pragmatist, however, I’m afraid that the concurring opinion in Coleman v. Donahoe might be correct, that “the time has come to collapse all these tests into one.”

Clearing a path to complain is a key part of any harassment policy

EEOC v. Management Hospitality of Racine, Inc. (7th Cir. 1/9/12) concerns some of the worst allegations of sexual harassment you will encounter, especially when you consider that the complaining employees were both teenagers and that the harassing manager was a decade their senior.

The employer tried to avoid liability by relying on its zero tolerance sexual harassment policy and its prompt investigations of complaints. The court disagreed for several reasons, including that managers had never received any harassment training and that the employer waited two months to investigate the complaints in this case. Most importantly, however, the court concluded that the employer’s harassment policy failed on its face:

An employer’s complaint mechanism must provide a clear path for reporting harassment, particularly where, as here, a number of the servers were teenagers…. Flipmeastack’s sexual harassment policy did not provide a point person to air complaints to. In fact, it provided no names or contact information at all.

What does this mean for you? A harassment policy is worthless if it does not tell employees how to complain and to whom to make complaints. Let me make one additional suggestion — have more than one avenue for complaints. You do not want to be in a situation where an employee does not complain because the person to whom your policy directs him or her is the alleged harasser. Suggest that employees can complain to anyone in management, up to and including the head of your company. Depending on the size of your organization and the resources available, consider implementing a harassment complaint hotline or inbox.

What Dr. King fought for … and what he didn’t

What MLK fought for…

From abcnews.com, discussing the resolution of a story on which I reported last month:

The Ohio Civil Rights Commission dismissed a landlord’s claim today that a “white only” pool sign was simply an historical antique sign and ruled that it was discriminatory…. The five-member commission decided unanimously on the matter, upholding an earlier ruling…. [According to the landlord,] “If I have to stick up for my white rights, I have to stick up for my white rights. It goes both ways.”

What MLK did not fight for…

From Brown v. Village of Woodmere [pdf], a race discrimination case decided last week by the Cuyahoga County Court of Appeals:

Brown further admitted that he was aware of the village’s electronic use policy and his use of the sergeant’s computer was in violation of the policy…. The mayor testified that she terminated Brown after she viewed the pornographic images that were on the sergeant’s computer; the images included pictures of Brown’s genitalia…. Under the circumstances presented in this case, summary judgment on Brown’s racial discrimination claim was entirely appropriate

Any questions?

WIRTW #208 (the “manners” edition)

Next week, my daughter’s kindergarten class will hold its second “manners lunch.” It is a formal lunch, with formal place settings, at which the children learn proper table manners. I hope that she takes these manners with her for the rest of her life. Lately, however, I’ve been reminded that not everyone exhibits proper manners. As a courtesy to my opposing counsel in a case, I notified him that I would be bringing a college student, shadowing at my firm, to an upcoming pretrial conference. Believe it or not, he objected:

Jon:

We do not agree with your intention to bring an outsider to the status conference tomorrow. The last thing we need is a distraction, especially since we are only 30 days from trial and the parties need to conduct candid discussions concerning this matter. Only trial counsel and parties should be at the conference.

Regards,

Am I off my rocker for being upset about this discourtesy? Does anyone see any harm in a college student, wanting to learn a little about what a litigator does, sitting quietly in a federal courthouse conference room observing a pretrial?

Anyhow, here’s what I read this week:

Discrimination

• God Has No Place in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs
• Can ADA-disabled employees be required to work overtime? – from Eric Meyer’s The Employer Handbook Blog
• Disability Discrimination Law Is a Mess in More Than Ohio – from Michael Fox’s Jottings By An Employer’s Lawyer
• “But it’s unfair to other employees” not an excuse when it comes to reasonable accommodations – from Warren & Hays Employment Law Blog
• For Many, “It’s That Time of Year”: Affirmative Action Plan (AAP) Revision – from Employer Law Report
• Will I Be Taxed on My Employment Law Settlement? – from Donna Ballman’s Screw You Guys, I'm Going Home
• Too Smart to Hire? – from Phil Miles’s Lawffice Space
• Papa John’s Employee Calls Woman “Lady Chinky Eyes” on Receipt – from ABC News

Social Media & Workplace Technology

• Create a Social Media Policy to Protect Your Business and Employer Brand – from Workplace Insights
• 7 signs we’re living in the post-privacy era – from MSNBC’s Techolog
• Learn How to Gather Social Media Evidence That Holds Up in Court – from i-Sight Investigation Software Blog
• When an Employer Posts to Employee’s Facebook and Twitter Accounts, Bad Things Happen – from Molly DiBianca’s Delaware Employment Law Blog
• Top Ten Social Media Pitfalls to Watch out For – from Meaghan Edelstein at Social Axcess
• Do Active Social Media Users Make Less Ethical Employees? – from Workplace Diva

HR & Employee Relations

• Hiring is NOT an Impulse, It Is an Investment – from Mike Haberman’s Omega HR Solutions
• Pepsi and the Art of Criminal Background Checks – from The HR Capitalist, Kris Dunn
• Pepsi “Popped” for Using Criminal Background Checks – from Texas Employer Handbook
• Pepsi Settles with the EEOC for Background Screening Practices – from Nick Fishman at the employeescreenIQ Blog
• 2012 Human Resources Updates: What Employers Need to Know – from CPEhr
• Why Mitt Romney likes to fire people – from Evil HR Lady, Suzanne Lucas
• 7 Things Your Employees Will Never Tell You – from Inc. Magazine
• Employers close door on smokers – from USA Today
• After Ohio Jury Finds Trade Secret Misappropriation But Awards Zero Damages, Trial Judge Enters Injunction Order But Sets Royalty Payment As Alternative – from Trading Secrets

Wage & Hour

• 9 Secrets For Coordinating Leave Under the FMLA and ADA – from SmartHR
• Expired FMLA Forms OK for Now – from Human Resources News
• Mandatory paid sick leave: a basic right? – from Employment Law Bits
• What to Expect When You’re Expecting the Department of Labor – from Dan Schwartz’s Connecticut Employment Law Blog
• What Are Hours Worked Under the Fair Labor Standards Act (FLSA)? – from Minnesota Employer

Labor Relations

• New NLRB Officially Here – from Workplace Prof Blog
• Potty Mouth Employee Loses Protection – from Labor & Employment Law Perspectives

Supreme Court finds religion, dismisses discrimination lawsuit

Any decision issued by the Supreme Court in an employment case is newsworthy. Thus, even though Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC [pdf] concerns the viability and applicability of the narrow ministerial exception under Title VII, it is still worthy of discussion.

Hosanna-Tabor employed Cheryl Perich as an elementary teacher. She started her employment as a “lay” teacher, and later received her “diploma of vocation” as a commissioned minister “called” by God. As a teacher, she spent approximately 45 minutes per day teaching religious studies, and the rest teaching secular subjects. Hosanna-Tabor terminated her employment after she began suffering from narcolepsy and threatening to sue for discrimination. The EEOC sued on her behalf under the ADA.

Last year, the 6th Circuit permitted Perich to continue with her lawsuit, finding dispositive the fact her primary job functions were secular, not religious. The Supreme Court unanimously disagreed, recognized that a constitutional ministerial exception exists under Title VII, and that because Perich was a religious employee she could not sue for discriminatory termination.

Other bloggers, who got to this case before me, have admirably recapped the Court’s opinion:

• Supreme Court recognizes “ministerial exception” to employment law protections – from Adam Bonin at Daily Kos
• Just In: SCOTUS Rules 1st Amendment Bars Minister's Discrimination Claim – from Phil Miles’s Lawffice Space
• Ministerial exception bars minister's termination suit against church – from LawMemo Employment Law Blog
• Opinion recap: A solid “ministerial exception” – from SCOTUSblog
• BREAKING: U.S. Supreme Court Supports Fairly Broad “Ministerial Exception” to Anti-Discrimination Laws – from Dan Schwartz’s Connecticut Employment Law Blog
• SCOTUS Upholds and Applies Ministerial Exception – from Workplace Prof Blog
• Ministerial Exception to Employment Discrimination Laws Upheld by Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. – from George’s Employment Blawg
• First Supreme Court Employment Decision of 2012 – from Manpower Employment Blawg

Instead of retreading their ground, I thought I’d focus on what this case means going forward. Chief Justice Roberts, writing for the majority, made it clear that this case only addressed an employment discrimination claim, and not other possible claims a “minister” might bring against a religious institution:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

***

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Wage and hour claims? A church employee fired after being wrongly accused of molesting a child? Given the Court’s reliance on the right of a church, conferred by the Constitution, to “control … the selection of those who will personify its beliefs,” it will be hard to imagine a different result in future cases.

Statistics show that lactation breaks are not a workplace problem

Before you read further, make sure you are sitting down, and that there is nothing blunt nearby for you to bump your head on if you pass out from the shock. Okay, here we go. According to the Huffington Post, since Obamacare mandated that employers provide space in the workplace for mothers to lactate, the Department of Labor has cited a whopping 23 companies for not providing adequate lactation breaks or spaces.

According to the U.S. Census Bureau’s latest statistics, there are 5,767,306 American employers, and yet only 23 have been cited for a violation of this mandate. In other words, the Department of Labor has cited .0004% of all American employers. If we only consider employers with 20 or more employees, the DOL has cited .0038%—still an infinitesimally small number. If we only consider the largest of employers—those with 100 or more employees—the percentage of citations drops to a still-miniscule .023%.

What does this mean? Either that the lactation mandate is not yet widely known, and as public knowledge catches up with the law’s requirements complaints (and citations) will rise. Or, the lack of lactation space in American workplaces is a myth that does not need need a legislative solution.

Are there employers that violate women’s rights (already protected by Title VII) to lactate in the workplace? Absolutely. Do enough trample these rights such that we need legislation to address this issues? Likely not.

[Hat tip: ABA Journal]

Is the NLRB backing off its position on social media as protected, concerted activity?

A quartet of advice memos released by the NLRB’s Office of the General Counsel over the past weeks suggests that the NLRB may be backing of its extreme protections of employee social media posts as protected, concerted activity.

• In Children’s National Medical Center [pdf], the General Counsel recommended the dismissal of a charge brought by a respiratory therapist terminated for updating her Facebook status during an ambulance ride to threaten a co-worker who was committing the cardinal sin of sucking on her teeth:

“[T]here is no evidence to establish concert. The Charging Party did not discuss her Facebook post with any of her fellow employees, and none of her coworkers responded to the posts…. The Charging Party was merely airing a personal complaint about something that had happened on her shift.”

• In TAW Inc. [pdf], the General Counsel recommended the dismissal of a charge brought by an accountant terminated for refusing to remove a Facebook post which suggested that her employer was engaged in fraudulent accounting practices:

“Even if the Charging Party initially posted the comment in furtherance of alleged concerted activity …, her refusal to remove the comment after the April 18 meeting with the outside auditor was not protected…. [H]er comment suggesting that the Employer was engaged in fraud was false and, after April 18, she knew it was false. Her insistence on retaining the post after knowing it was false is not entitled to protection under the Act.”

• In Copiah Bank [pdf], the General Counsel recommended the dismissal of a charge brought by a bank teller terminated for off-duty Facebook posts complaining that employees at another branch had “narced” on her:

“The Charging Party did not post her comment on her Facebook page in furtherance of concerted activity for mutual aid or protection. The Charging Party admits that that she was not speaking on behalf of any other employees, nor is there evidence that that she was looking to group action when she posted her comments on Facebook.”

• In Intermountain Specialized Abuse Treatment Center [pdf], the General Counsel recommended the dismissal of a charge brought by a therapist who took to her Facebook wall to complain about staff meetings, including at least one interaction with a co-worker during which they agreed to use Facebook to “complain about work.”:

“The Charging Party’s Facebook posting was merely an expression of an individual gripe about … a staff meeting that affected only the Charging Party – her removal as the facilitator of her victims group. The posting contained no language suggesting that she sought to initiate or induce co-workers to engage in group action. And the only co-worker who commented in response to the posting stated that he did not think that the Charging Party’s post was an attempt to change anything at work.”

These G.C. memos suggest, as I suggested almost a year ago, that the sky may not be falling in regards to social media and the NLRB. Children’s National, TAW, and Copiah Bank are reasoned opinions on lone-wolf employees who took to social media to air gripes about work, or, in the case of Children’s National, to threaten a co-worker.

Intermountain, though, may have wider implications. One of my key concerns about the NLRB’s foray in regulating workplace social media is that by its very nature, social media is concerted, i.e., does a co-worker’s unsolicited comment or response to a social media post convert lone-wolf conduct into concerted activity? Intermountain suggests that the concerted nature of the social media activity depends on both the intent of the original poster and the understanding of that intent by any subsequent commenters.

These issues are far from settled. Intermountain, though, is a good first step in the right direction to providing employers some much needed clarity in this area. It’s also a welcoming sign that the NLRB isn’t forging ahead with blinders on in this area.

NLRB trumps U.S. Supreme Court on class action arbitrations

Last year, the U.S. Supreme Court, in AT&T Mobility v. Concepcion, held that a business could compel a group of individuals to waive their right to file a class action lawsuit and instead arbitrate their collective dispute. Employers rejoiced, believing that they finally had the weapon they needed to battle the scourge of wage and hour class actions. Last Friday, however, the NLRB struck a blow against this apparent victory.

In D. R. Horton, Inc. [pdf], the NLRB held that an arbitration agreement violated the National Labor Relations Act’s protections for employee concerted activity. The facts are pretty straight-forward. The employer required all of its employees, as a condition of their employment, to sign a master arbitration agreement, under which they agreed:

• to submit all disputes and claims relating to their employment to final and binding arbitration;
• that the arbitrator “may hear only … individual claims,” “will not have the authority to consolidate the claims of other employees,” and “does not have authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding”; and
• to waive “the right to file a lawsuit or other civil proceeding relating to … employment with the Company” and “the right to resolve employment-related disputes in a proceeding before a judge or jury.”

The NLRB concluded that the agreement “unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection,” and held that the employer “violated Section 8(a)(1) by requiring employees to waive their right to collectively pursue employment-related claims in all forums, arbitral and judicial.”

A few key points to make about this case:

1. This case continues the trend (as we’ve seen in the social media cases—more on this tomorrow) of the NLRB pursuing protected, concerted activity cases in non-union workplaces.
2. The NLRB did not concluded that all class action arbitration agreements are invalid, but merely those that leave employees without a collective remedy. An arbitration agreement, for example, that permits for a judicial filing would still be lawful. (But, then again, wouldn’t that fall-back nullify any benefit to be gained from the arbitration agreement in the first place?)
3. This decision likely is not the last we will hear on this issue. This case is almost certainly headed to the 11th Circuit Court of Appeals. Depending on that result, it will be curious to see if the Supreme Court picks up the ball to reconcile this case with AT&T Mobility. Until then, employers should tread carefully in trying to implement or enforce class action arbitration agreements.

WIRTW #207 (the “world tour” edition)

Okay, so it’s not really a world tour, but I do have a bunch of speaking engagements coming up in the next few weeks, all but one of which you can join.

• At 2 pm this afternoon, you can call in and speak to me live on the special 100th installment of Stephanie Thomas’s Proactive Employer Podcast. I’ll be appearing along with fellow employment law bloggers Dan Schwartz and Phil Miles. If you want to participate, the call-in number is (347) 945-5651, or you can tweet your question using the hashtag #TPE100. You will be able to listen live here.
• On January 11, I will be presenting the inaugural webinar in the Ohio Chamber of Commerce’s HR Academy, entitled Think Before You Click: Strategies for Managing Social Media in the Workplace. The live webinar runs from 10 – 11:30 am.
• On January 18, I will be leading a session on how-to blog for the Ohio Women’s Bar Association Leadership Institute.
• On February 9, I am presenting Lawyers, Booze and Money: Social Media Compliance for Regulated Industries, at the Social Media Strategies Summit in Las Vegas.
• On February 21, I will be part of a webinar panel entitled Understanding Unions, NLRB, and Social Media. The panel will be part of a webinar series run by Jessica Miller-Merrell on her blog, Blogging4Jobs. More info to follow.
• Also, last month I recorded an episode of the Fistful of Talent Podcast (the CYA Report, with co-host Dawn Burke and Kris Dunn) discussing current issues with the NLRB. You can download the podcast here.

The blogosphere never sleeps, even over the holidays. It’s been a busy couple of weeks. Let’s get to it.

Here’s what I read this week (and last week):

Discrimination

• The EEOC’s wish list for reasonable accommodations – from Sindy Warren’s Warren & Hays Employment Law Blog
• Going on offense—responding to a potential ADA suit – from John Holmquist’s Michigan Employment Law Connection
• Breast-Feeding Avengers – from Eve Tahmincioglu’s CareerDiva
• A Get Over It Guide to Transgender in the Workplace – from Jessica Miller-Merrell’s Blogging4Jobs

Social Media & Workplace Technology

• Poetic Justice - 2011 Wrap Up – from Social Media Employment Law Blog
• Top Ten 2012 Social Media Resolutions Every Organization Should Have – from Social Axcess
• Are employees’ LinkedIn contacts considered your trade secrets? and Who owns the LinkedIn account you maintain for an employee? – from Eric Meyer’s The Employer Handbook Blog
• Do Your Social Media Accounts Belong To Your Business? Why Worry, When There Are Safeguards You Can Take Now – from Social Media Law Update
• Why Owning Your Employee’s Twitter Account is Foolish – from Social Media Today
• My Interview with @noahkravitz (Noah Kravitz) - How Much is a Twitter Follower Worth? – from Social Media for Law Firms
• SEC issues investor alerts highlighting the perils of social media – from Kevin O’Keefe’s Real Lawyers Have Blogs
• Avoiding the Dangers of Social Media Background Checks – from i-Sight Investigation Software Blog
• Twitter, Anonymous, Occupy Wall Street, the First Amendment, and the Suffolk County district attorney – from The Verge

HR & Employee Relations

• Setting Precedents: What You Have Done Before Does Count – from Mike Haberman’s Omega HR Solutions
• Employment law leftovers: Best of 2011, what's up for 2012, and resolutions – from Robin Shea’s Employment and Labor Insider
• Things I Believe In – from The ChamberPost
• Sex Sells—And It’s A Trade Secret – from Fair Competition Law
• Employee Bathroom Surveillance Camera, Although Faulty, Could Be Invasion of Privacy – from Workplace Fairness
• Why You Really Shouldn’t Curse at Work (Much) – from Harvard Business Review
• Losing Your Driver’s License Can Impact Your Career – from hr bartender
• Workplace Rudeness Has a Ripple Effect – from Scientific American
• Ohio Court: Client List Was Not a Trade Secret – from The Personnel Files
• What Employers and Employees Should Understand About Conducting Background Checks from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Does Lady Gaga Owe Assistant OT? – from Wage & Hour Insights
• Lady Gaga’s Personal Assistant Sues for Overtime: “At Her Side” 24/7 – from Wage and Hour Law Update
• Get a Fresh Start on Misclassification in 2012 – from Stephanie Thomas at Compensation Cafe
• Can my company force me to take health insurance? – from Evil HR Lady, Suzanne Lucas
• Employee Not Owed Reporting Time or Split Shift Pay for Scheduled Meetings – from Wage & Hour Counsel
• The DOL’s FMLA Forms Expired on December 31, 2011. Should Employers Still Use Them? – from FMLA Insights
• Invalid FMLA certification can form the basis of employment termination – from Employment Law Matters

Labor Relations

• Just In: Obama Taps Three for NLRB Vacancies – from Phil Miles’s Lawffice Space
• President Obama Announces Three Recess Appointments to NLRB Despite Senate in Pro Forma Session and More on President Obama’s “Recess” Appointments to the NLRB – from Seth Borden’s Labor Relations Today
• NLRB’s New “Vote Now, Litigate Later” Union Election Rules To Become Effective April 2012 – from World of Work
• When is a Supervisor Not a Supervisor? The NLRB Finds No Proof of Supervisory Authority – from Vorys on Labor

Disability discrimination law in Ohio is a mess

Let’s start with the obvious: it is illegal in Ohio for an employer to discriminate against an employee because of the employee’s disability. It is not always easy to figure out who this proscription covers, because Ohio’s statute (R.C. 4112) and the federal statute (the ADA) have their own respective definitions of what is a disability, which vary slightly:

     Ohio Law:

“Disability” means a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.

     Federal Law:

The term “disability” means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.

Before Congress amended the ADA in 2009, there existed another key difference between its and Ohio’s respective definitions of “disability.” To be “regarded as” disabled under Ohio law, one has to be “regarded as having a physical or mental impairment.” Under the pre-ADAAA ADA, to be “regarded as” disabled, one had to be perceived as having an impairment that substantially limits one or more major life activities. By adding the “substantially limits” language, the federal definition was more restrictive.

Until recently, and despite these differences, Ohio law has almost always looked to federal law in interpreting its state disability discrimination statute. Last month, however, the rules changed. In Scalia v. Aldi, Inc. (12/21/11) [pdf] (discussed yesterday), one Ohio appellate court said the following:

Because the plain language of the definition of disability contained in R.C. 4112.01 differs in substance from the ADA, it is not appropriate to look to federal materials interpreting the pre-2008 ADA with respect to perceived disability claims under Ohio law.

The key language in that quote is “pre-2008 ADA.” The ADAAA amended the definition of “regarded as” disability. Under the amended ADA, it is now irrelevant whether the actual or perceived physical or mental condition substantially limits a major life activity:

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

Thus, as the court pointed out in Scalia v. Aldi, Ohio law and federal law now match on this issue. Because Aldi terminated Scalia before Congress amended the ADA, the court applied the pre-amendment version of the statute, and left open the question of whether Ohio courts should look to federal caselaw interpreting the amended federal statute.

What does all this mean for Ohio employers? Disability discrimination law is a mess. Until the General Assembly passes legislation clarifying whether interpretations of “disability” under R.C. 4112 are supposed to mirror the ADA, companies doing business in Ohio would be best served following the most expansive interpretation of the definition of disability possible under either statute.

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?

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*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