WIRTW #231 (the “Obama <3 Roberts” edition)

Yesterday was the most anticipated day at the U.S. Supreme Court in quite some time. The Court handed down its opinion in National Federation of Independent Business v. Sebelius, which decided the constitutionality of the Affordable Care Act. And, Obamacare is alive and kicking. Here’s SCOTUSblog’s very tweetable summary of the historic opinion:

The key quote from the majority opinion, written by Chief Justice Roberts:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.

In other words, the “mandate” to buy health insurance isn’t really a mandate at all, because individuals can simply refuse to buy health insurance and pay the resulting tax.

Here’s the entire 59-page opinion “in plain English,” again via SCOTUSblog (which gets huge props for its amazing live coverage):

If have a few spare moments and want to seek your teeth into the opinion, you can download all 187 pages here.

Or, you can read some summaries and commentaries from around the web:

• Health-Care Ruling: A Scorecard — from WSJ.com: Law Blog
• Don’t call it a mandate—it’s a tax — from SCOTUSblog
• What The Health Care Decision Means for Your Small Business — from WSJ.com: Small Business
• Supreme Court Upholds Individual Health Insurance Mandate — from SHRM
• Obamacare Decision: The Perils of Instant Analysis and Related Thoughts — from Michael Fox’s Jottings By An Employer’s Lawyer
• Social media angle on SCOTUS healtcare decision — from Internet Cases
• Ouch! CNN, Fox News Flub Coverage of Supreme Court’s Health Care Ruling — from TVLine

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

Discrimination

• Say what? — from Walter Olson’s Overlawyered
• Is Breastfeeding Bias the EEOC’s Next Battleground? — from Employer Defense Law Blog
• Sticks and Stones Can Break Bones, but the Wrong Words Can Hurt Your Business — from Troutman Sanders HR Law Matters
• Banana-based racial harassment claim goes to trial — from Warren & Associates Blog
• Strippers Have Rights Too — from Donna Ballman’s Screw You Guys, I’m Going Home
• Fired for Reporting Workplace Injury — from The Proactive Employer Blog

Social Media & Workplace Technology

• Social Media in the Workplace: Much Ado about Nothing? — from i-Sight Investigation Software Blog
• Facebook Use At Work Falls, Twitter Is On The Rise — from The Huffington Post
• NBC Stations Keep Tabs On Employee Tweets — from TVNewsCheck
• What Not to Share: Enterprise Social Networking Etiquette — from The Up Mover
• ‘We Know What You’re Doing’ website outs drug users, boss-haters and more on Facebook — from BGR
• Is Your Co-worker Reading E-books On Company Time? — from Workplace Diva
• Employers Can Use Apps to Track Employees — But Is It a Good Idea? — from HR Hero’s Technology for HR Blog
• Pew survey finds that 17 percent of US cellphone users go online mostly on their phones — from Engadget Mobile
• Pinterest Legal Concerns: What is Lawful to Pin? — from Social Media Today

HR & Employee Relations

• Should you tell a job candidate about her body odor? — from Evil HR Lady, Suzanne Lucas
• Policies and User Adoption — from HR Examiner with John Sumser
• Workplace Investigation Pitfall: Failure to Use the Matter as an Opportunity to Improve the Organization and its Employee Relations Practices — from Strategic HR Lawyer
• Employer customer lists: "Whatever you say, dude." — from Eric Meyer’s The Employer Handbook Blog
• Legal Issues and Benefits to Employers for Employing Military Personnel — from Jason Shinn’s Michigan Employment Law Advisor
• Poll: Social Life, Not Social Media, Is Work's Biggest Distraction — from Workforce
• Employers to workers: Shape up, quit smoking — from Eve Tahmincioglu at Life Inc. on Today.com

Wage & Hour

• A work-life balance audit for employers — from Robin Shea’s Employment and Labor Insider
• Supreme Court To Decide Whether Employers Can “Moot” Collective Action — from Wage & Hour Tips
• SCOTUS Grants Cert in ERISA Case — from Phil Miles’s Lawffice Space

Labor Relations

• OMG! DUST NLRB Using Tech 2 Reach PPL re: PCA? UNTCO — from Dan Schwartz’s Connecticut Employment Law Blog
• 6th Circuit Holds Substantial Evidence Supports NLRB’s Conclusion That Charge Nurses Were Not Supervisors — from Wisconsin Employment & Labor Law Blog

Abandoning job because of harassment does not support retaliation claim, says the 6th Circuit

Last week, I discussed the 6th Circuit’s most recent pronouncement on same-sex harassment. I noted that while some would argue the Court’s dismissal of the harassment claim is evidence of the need for law against workplace bullying, in reality the Court’s dismissal of the retaliation claim was the more troubling aspect of the opinion. What did I mean?

Recall that in Wasek v. Arrow Energy Services [pdf], when Harold Wasek complained that his male co-worker, Paul Ottobre, was harassing him, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” In response to this supervisor’s advice, Wasek went AWOL from his Pennsylvania job site. When Wasek later pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek couldn’t handle it he “should find another line of work.” Ultimately, Arrow banned Wasek from working in Pennsylvania and reassigned him to a job site in Michigan. He ultimately quit to work for a different employer.

The Court concluded that Wasek going AWOL, and not his complaints about harassment, caused his job-site transfer:

Wasek’s claim fails, however, because he has not demonstrated a causal connection between his protected activity—the complaints—and Arrow Energy’s adverse employment action—the Pennsylvania ban….

Leaving the work site could be protected activity if leaving itself were a “complaint” about sexual harassment. But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances.

Lately, we've seen more than one example of employers who avoided liability despite encapsulating some pretty poor HR practices. This case provides another textbook case of how not to respond to an employee complaint. Yes, you can hope to avoid liability based on a legal argument that the employee was not engaging in protected activity because the underlying misconduct was not illegal. That hope, however, misses the point. Anyone who has responsibility for responding to harassment complaints should be troubled by a decision that justifies an excuse such as “that’s the way the oil field is,” and suggests that the complaining employee tough it out or find another job. Employers need to take all complaints seriously, not just those that the employer thinks will cause it legal problems down the road.

Did the 6th Circuit just approve a claim for benign discrimination?

In Litton v. Talawanda Sch. Dist. (6th Cir. 6/26/12) [pdf], a demoted and transferred custodian sued his employer for age and race discrimination. At trial, the jury returned the following special verdict:

The jury concluded that Litton did not prove that he had suffered an adverse action, yet proved that he was treated differently because of his race. Under the McDonnell Douglas burden-shifting framework, the lack of an adverse action should dispose of the case. If one cannot show a prima facie case (which includes the suffering of an adverse action), the ultimate issue of discrimination should never be reached.

The 6th Circuit, however, disagreed. It disregarded the jury’s finding on the existence of an adverse action as irrelevant to its subsequent finding on the ultimate issue of whether discrimination occurred:

The jury’s assessment of Litton’s prima facie case did not control its finding on the ultimate question of discrimination…. he district court was not only permitted to disregard the jury’s answer to the adverse employment action question, it was required to do so, and instead to evaluate the strength of the evidence as a whole.

As I read the opinion in Litton, I mapped out in my head a grand critique. Then I read Judge Batchelder’s dissent, and decided I couldn’t say it any better:

The core problem with the majority’s holding is that it treats the question of whether Litton suffered adverse discrimination as distinct from “the ultimate question of discrimination vel non.” The two are one…. Title VII does not ban mere discrimination, but only adverse discrimination…. It is, to me, beyond obvious that Title VII applies only where there has been discrimination against an individual. That requirement is not merely some vestigial prima facie element that fades into the background as the case progresses—it is at the heart of the claim itself….

In sum, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” … The majority should not relieve Litton of his burden, and it certainly should not grant him victory in the face of a jury verdict finding that he never proved that he suffered adverse discrimination at all. The whole purpose of Title VII … is preventing harmful discrimination, not the lamentable-but-benign discrimination that the jury found Litton experienced.

Did the 6th Circuit unwittingly create a cause of action for benign discrimination? Or, is this case an anomaly that future courts will distinguish and disregard? Common sense mandates the latter. Right?

Will the Supreme Court (re)define employer liability for harassment by supervisors? Vance v. Ball St. Univ.

An employer’s liability for unlawful harassment depends, in part, on whether the alleged perpetrator of the harassment is a supervisor or a co-worker. Employers are strictly liable for unlawful harassment committed by a supervisor, but only liable for harassment committed by a non-supervisory co-worker if the company was negligent in discovering or remedying the harassment.

In Vance v. Ball St. Univ. (7th Cir. 6/3/11), the court concluded that for the purpose of imposing strict liability for harassment, “supervisor” means “direct supervisor.” That is, if the alleged harasser is a supervisor in title, but lacks the power to directly affect the terms and conditions of the plaintiff’s employment, strict liability cannot attach, and the court must analyze the employer’s liability under a negligence standard.

Yesterday, the U.S. Supreme Court agreed to hear the appeal of this case. The Court will decided the following two-part issue:

Whether the “supervisor” liability rule … (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

This case has the potential to be significant for employers. As the plaintiff argued in support of the Supreme Court hearing the case:

These issues are no small matter. During the twelve-month period ending September 30, 2010, 14,543 employment discrimination cases were filed in United States courts—the third-largest category of civil cases…. And in 2010 alone, the EEOC received more than 30,000 harassment charges…. Employers agree that this issue is “an important and recurring issue of federal law.” In the modern workforce, where many acts of discrimination are committed by intermediate-level individuals in a large hierarchical organization such as Ball State University, resolution of this issue will undoubtedly add clarity to a great many employment discrimination disputes.

This case presents an excellent opportunity to settle this important issue.

Indeed, the federal appellate courts are split on this issue. The 1st, 3rd, 6th (which includes Ohio), and 8th agree with the 7th Circuit’s opinion in Vance v. Ball St. Univ., while the 2nd, 4th, and 9th Circuits, in addition to the EEOC, conclude that a supervisor is a supervisor regardless of the degree of oversight or control over the alleged victim of the harassment.

Hopefully, this case will settle this dispute and provide much needed clarity on the scope of an employer’s liability for unlawful harassment. This supposedly business-friendly Court has proven itself to be an ally of employees in recent cases. Will this trend continue? Much more on this case in the coming months, including an attempt to handicap the outcome after oral argument.

[Hat tip: Phil Miles’s Lawffice Space]

Sporadic and isolated comments: “Regarded as” claims under the New ADA vs. the Old ADA

The ADA protects three classes of “disabled” employees:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual;
2. Those with a record of such an impairment; and
3. Those regarded as having such an impairment.

To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental
impairment, and that the impairment was one with a duration of more than six months.

In Gecewicz v. Henry Ford Macomb Hosp. (6th Cir. 6/22/12) [pdf], the employer terminated Janice Gecewicz for accruing too many absence under its attendance policy. In her disability discrimiation lawsuit, Gecewicz, who had undergone eight surgeries during the last 10 years of her employment, claimed that the hospital regarded her as disabled. In support of her claim, she pointed to three statements made by her supervisor, Carol Rogers:

• “You’ve had a lot of surgeries for one person.” (made six years before her termination)
• “[Gastric bypass] is a very risky surgery.” (made five years before her termination)
• “If [you] didn’t have so many surgeries [you] wouldn’t have so much time off and [that you] need to take better care of [yourself].” (made one year before her termination)

The Court concluded that these remote and isolated statements could not support her “regarded as disabled” claim. The Court affirmed the trial court’s dismissal of the ADA claim, stating:

First, none of Rogers’s statements shows that she believed Gecewicz had a physical or mental impairment of a duration longer than six months. Second, … the concern reflected in each of Rogers’s statements—including the third statement … —centers on Gecewicz’s excessive absenteeism, not a perceived disability. Being absent from work is not a disability.

What is the takeaway for businesses? Train your managers and supervisors never to discuss employees’ medical issues. “Regarded as” claims under the ADA are dangerous. Gecewicz was decided under the pre-amendments ADA. Under the ADAAA’s “regarded as” prong, a plaintiff only has to prove the existence of an impairment, and no longer has to prove that the employer regarded the impairment as substantially limiting a major life activity.

Under the ADAAA (under which employers now operate), employers will have hard time demonstrating that statements about an employee’s surgeries are not related to an impairment. It is imperative that businesses drill into managers and supervisors that discussions about employees’ medical issues have no place in the workplace. Businesses cannot rely on the rationale of Gecewicz to bail them out under the ADAAA.

WIRTW #230 (the “2012 tour” edition)

I’m taking my act on the road. I have a slew of speaking engagements lined up between now and the end of the year. Let me know if you’re planning on attending any of these so that we can connect.

• Employees Online: Social Media at Work — Business Management Daily Webinar, July 11, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — Ashtabula Chamber of Commerce, July 26, 2012
• Employee Leave Rights and Employer Obligations — Ohio Chamber of Commerce HR Academy, September 12, 2012
• Employment Law in the Information Age: Best Practices for Employers — 7th Annual National Employment Practices Liability ExecuSummit, October 1, 2012
• Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace — GSMI HR Compliance Conference, October 16, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — COSE Small Business Conference, October 25, 2012

You can now keep track of all of my past and upcoming gigs at the brand new “Speaking Engagements” tab on the toolbar at the top.

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

Discrimination

• REQUIRED READING: One of the Most Public Harassment Lawsuits You'll Ever See… — from The HR Capitalist, Kris Dunn
• Internal Probe Participation Triggers Title VII Protection, Court Holds — from Joe’s HR and Benefits Blog
• A Few Thoughts on “Ageism” in the Workplace — from New Jersey Employment Law Blog
• The EEOC Contends Lactation Is Covered by Title VII — from Hunton Employment & Labor Law Perspectives™
• HELP WANTED: Born-again Christians need only apply — from Eric Meyer’s The Employer Handbook Blog
• Fathers Take Employers to Court for Discrimination — from i-Sight Investigation Software Blog

Social Media & Workplace Technology

• Employers Can Use Apps to Track Employees—But Is It a Good Idea? — from Technology for HR
• Can I Protect My Trade Secrets Via Social Media Policy? — from Trade Secrets & Non-Compete Blog
• Juror Misconduct & Bias - Social Media Investigation — from From the Sidebar
• 20 Awesome Facts About Twitter – 2012 Edition — from Social Media for Law Firms

HR & Employee Relations

• Are You Ready For Take Your Dog To Work Day? — from Workplace Diva
• Chaucer, the Prioress, her Lip, and your Employee Handbook — from A Maryland Employment Lawyer Speaks
• Did you libel your employee in a panic and then find out you were wrong? Never be afraid to say you’re sorry — from Robin Shea’s Employment and Labor Insider
• Summertime is Here: Don’t Be A Victim of Background Check Shrinkage — from Nick Fishman’s employeescreenIQ Blog
• Performance Evaluations: Let’s Talk About It — from Molly DiBianca’s Delaware Employment Law Blog
• Pull Up Your SOX: The New Whistleblowing Claim Grows Up — from Dan Schwartz’s Connecticut Employment Law Blog
• The top 10 harassment excuses … and how to see through them — from Business Management Daily

Wage & Hour

• The DOL at Your Door – What Do You Do Now? — from Mike Haberman’s Omega HR Solutions
• “The new workplace revolution: wage and hour suits” — from Walter Olson’s Overlawyered
• Function Over Form: The Supreme Court’s Realistic View of the FLSA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Do Hours Worked On A Second Job Count Toward Overtime? — from Wage & Hour Insights
• Wage Theft On The Rise — from Overtime Lawyer Blog
• Tenth Circuit dismisses claim by employee who was fired while on FMLA leave — from EmployerLINC
• Family and Medical Leave Act Webinar and Employee Guide — from Laconic Law Blog

Labor Relations

• Does Your Compensation Policy Violate NLRA? — from Stephanie Thomas at Compensation Cafe
• U.S. Unions: Uncivil On Civil Rights — from Forbes
• State Of The Unions: Labor And The Middle Class — from NPR’s All Things Considered

6th Circuit moves the line between same-sex harassment and bullying

Oil rigs must be awful places to work. Oncale v. Sundowner Offshore Services—the U.S. Supreme Court case the first recognized that Title VII protected employees from same-sex harassment (and which included allegations such as name-calling suggesting homosexuality, physical assaults, and attempted rape)—involved an oil platform. Yesterday, the 6th Circuit decided Wasek v. Arrow Energy Services [pdf], another same-sex harassment case involving oil rig employees. Wasek, however, did not turn out as well for the complaining employee as did Oncale.

To save money after accepting a job with Arrow Energy, Harold Wasek decided to share a hotel room with one of his new co-workers, Paul Ottobre. As it turns out, that decision proved to be a poor one. Ottobre tormented Wasek by grabbing his buttocks, poking him in the rear with a hammer handle and long sucker rod, making comments such as “you’ve got a pretty mouth,” “boy you have pretty lips,” and “you know you like it sweetheart,” telling sexually explicit jokes, stories, fantasies, and calling Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

When Wasek complained, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” When Wasek pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.”

The 6th Circuit affirmed the dismissal of Wasek’s harassment claim:

Title VII is not “a general civility code for the American workplace.” … [T]he conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s gender….

No evidence exists that Ottobre was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, Wasek must demonstrate that Ottobre was homosexual. In his deposition, Wasek speculated that Ottobre was “a little strange, possibly bisexual.”

We need not delve into what inferences — if any — might be drawn from a harasser’s bisexuality. A single speculative statement in a deposition cannot be the first link in the “chain of inference” that Oncale recognizes may follow from the harasser’s nonheterosexuality…. Therefore, Wasek’s Title VII hostile work environment claim cannot survive.

Advocates will argue that this case is proof of why we need legislation against generalized workplace bullying. To the contrary, the troubling aspect of this case is not the dismissal of the harassment claim, but the dismissal of Wasek’s retaliation claim (an issue that will get its own post next week).

Regardless of where you stand on the issue of whether there should exist a law against workplace bullying, employers should use this case as a teaching tool on how not to respond to a harassment complaint. It is shameful that the supervisors’ told Wasek to stop whining, suggested fisticuffs to settle the issue, and ultimately chalked it up to the nature of the workplace. There are a million better ways this employer could have handled these complaints, and not have to rely on a legal argument that this misconduct is not actionable Title VII harassment.

Pop quiz: Can you condition a job offer on a withdrawal of an EEOC charge?

Consider the following chain of events:

1. 8/14: Pregnant Employee, armed with a doctor’s note, asks for modified duty, and employer terminates her.
2. 8/15: Employee files an EEOC charge.
3. 8/18: Employer reconsiders, changes its mind, and decides to offer a light-duty position, consistent with its policy to offer available light-duty positions to employees with medical conditions.
4. 8/20 – 8/28: Employer receives notice of EEOC charge.
5. 8/28: Employer communicates offer of light duty position to Employee, but on the condition that she drop her EEOC charge.
6. 8/29 and thereafter: Employee refuses job offer, and is never offered another position with the company.

Did this employer retaliate by conditioning the light-duty job offer on the employee dropping her EEOC charge? According to Chapter 7 Trustee v. Gate Gourmet, Inc. (11th Cir. June 11, 2012), the answer is an unconditional “yes.”

A jury reasonably could find from the sequence of events that Gate Gourmet decided to unconditionally offer Williams the light-duty silverware wrapper position and would have done so but for the fact that she filed an EEOC charge. Once it learned that she had, Gate Gourmet changed what would have been an unconditional offer into a conditional offer in which she could have the position (with back pay) only if she dropped the charge. When Williams would not drop it, Gate Gourmet rescinded the offer. This permissible interpretation of the evidence creates a reasonable inference that the statutorily protected filing of and refusal to settle the EEOC charge caused Gate Gourmet to deny Williams a light-duty position, which is a materially adverse action.

I’ve written before how employers must treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. Because this employer had a policy to offer available light-duty positions to employees with medical conditions, it was required to offer the light-duty silverware wrapper position to Williams. That it decided to rescind its offer only after receiving notice of Williams’s EEOC charge is unconditionally and unlawfully retaliatory.

Reaching the 93%: NLRB launches webpage describing protected concerted activity

When asked the type of law I practice, I always respond with “management-side labor and employment law.” In reality, while I have many successful engagements under my belt in the world of traditional labor law, I am much more of an employment attorney than a labor attorney. And, if you ask 100 management-side labor and employment lawyers whether they identify more with labor law or employment law, at least 95 will tell you employment law. It’s not our fault. It’s just that as union membership has dwindled, so have the opportunities to practice traditional labor law.

Currently, only 7 percent of private sector employees belong to a labor union. Doing the math, that leaves 93 percent of the private sector workforce as non-unionized. Yet, the National Labor Relations Board’s ability to impact the workplace is not limited by unions’ 7 percent reach.

Yesterday, the NLRB launched a webpage dedicated to protected concerted activity, which highlights 12 recent cases litigated by the NLRB involving protected concerted activity. According to the NLRB:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away (emphasis added).

Trust me, it’s not a coincidence that the phrase “even if they aren’t in a union” prominently appears on this webpage above the fold. It’s a calculated public relations strategy.

According to the NLRB, “Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.” If the agency is being honest, I bet it would want to add a zero after that 5. The NLRB wants to be the go-to agency for employees fired for talking about work. It is in the process of reinventing itself so that it remains relevant, even as labor unions become increasingly irrelevant. Businesses must prepare themselves for increased knowledge by their employees on these issues, along with the increased enforcement efforts by the NLRB.

BREAKING: SCOTUS rules pharmaceutical reps are exempt outside salespeople

Today brings a bonus second post, because the Supreme Court just released its long-awaited ruling in Christopher v. SmithKline Beecham Corp. [pdf] The Supreme Court, by a 5-4 margin, held that pharmaceutical sales representatives are exempt, outside salespeople to whom employers need not pay overtime.

For all of the background on this case you could want, click through the following from my archives:

• Supreme Court to hear case on scope of outside sales exemption (and hopefully scope of DOL’s power)
• 2nd Circuit issues groundbreaking ruling on sales reps and overtime payments
• Do you know? The FLSA’s exemptions for salespeople

In summary, the Court concluded the following:

     1. To be considered a salesperson, one need to actually consummate a transaction. It is sufficient that the promotional work performed by the employee can lead to a sale.

This rationale rebukes the argument of the Department of Labor, which the Court called “quite unpersuasive” and lacking the hallmarks of thorough consideration.”

     2. Non-binding commitments from physicians to prescribe certain drugs qualify as sales under the FLSA’s outside sales exemption.

This rationale applies a common-sense approach to a statute that is often confusing and too rigidly applied.

To me, the following is the million dollar quote from the Court:

Our holding also comports with the apparent purpose of the FLSA’s exemption for outside salesmen. The exemp­tion is premised on the belief that exempt employees “typically earned salaries well above the minimum wage” and enjoyed other benefits that “set them apart from the nonexempt workers entitled to overtime pay.” … It was also thought that exempt employees per­formed a kind of work that “was difficult to standardize to any time frame and could not be easily spread to other workers after 40 hours in a week, making compliance with the overtime provisions difficult and generally precluding the potential job expansion intended by the FLSA’s time­ and-a-half overtime premium.” … Petitioners—each of whom earned an average of more than $70,000 per year and spent between 10 and 20 hours outside normal busi­ness hours each week performing work related to his as­ signed portfolio of drugs in his assigned sales territory—are hardly the kind of employees that the FLSA was intended to protect. And it would be challenging, to say the least, for pharmaceutical companies to compensate detailers for overtime going forward without significantly changing the nature of that position.

I have long argued that the FLSA is an anachronistic maze of rules and regulations that does not well fit within the realities of the 21st century workplace. It seems that at least 5 members of the Supreme Court are inclined to agree with me. This excerpt provides hope for businesses that in the face of an overly-active Department of Labor and an overly confusing statute, courts can provide relief by adopting common sense interpretations.

For more on this important SCOTUS ruling, you can read the early reactions of some of my blogging friends (I’m certain more of the employment law blogging illuminati will weigh in today and tomorrow):

• Dan Schwartz’s Connecticut Employment Law Blog
• Phil Miles’s Lawffice Space

Plagiarism (a story with a happy ending)

I made a startling discovery on Friday. In last week’s WIRTW, I gave a shout out to the Meritas Social Media Guide for Lawyers v. 2.0. (In the name of full disclosure, my law firm, Kohrman Jackson & Krantz, is the Cleveland member firm of Meritas, an international alliance of full-service law firms, and its Social Media Guide features my blog.) One of the guide’s authors, Ethan Wall, took to Twitter to thank Daily Legal Law for mentioning the Social Media Guide. The only problem is that Daily Legal Law had plagiarized my column from Friday, reprinting it word for word.

I am all for other websites and blogs being so enamored with my content that they want to run it on their sites. Please, have the kindness to email me first to ask permission (I rarely say no), and then provide proper attribution. Don’t copy and paste my copyrighted content, and exacerbate your evilness by listing someone else as the author.

This story has a happy ending. Five minutes of easy research led me to DailyLegalLaw.com’s web host, HostGator, to whom I sent a takedown letter under the Digital Millennium Copyright Act. Yesterday, I received the following email from HostGator:

HostGator took down the entire website. If you visit DailyLegalLaw.com, this message is all you will find:

If you have employees posting content for your business online, remind them that plagiarism is illegal, that copyrights have meaning, that violating others intellectual property rights has consequences for the company (such as infringement lawsuits, civil fines, and criminal penalties), and that plagiarism is a terminable offense. Build these ideas into your social media, online communication, or similar policy, and re-enforce the concept in the training of your employees on responsible and legal online communications. Also, if you are regularly publishing content, it is wise to monitor the Web to check for stolen content, so that you can act swiftly to protect your IP.

To the proprietors of DailyLegalLaw.com: If you are going to steal copyrighted material, at least have enough common sense not to steal it from the one group certain enough to know how to protect their IP rights—attorneys. DailyLegalLaw.com, you are free to copy this post (and only this post) and paste it, in its entirety, on any of your other websites.

WIRTW #229 (the “turn the world on with her smile” edition)

I’ve never seen a full episode of The Mary Tyler Moore Show. Thus, I did not understand why Workforce ranked it as a number 1 seed in its 90th Anniversary Pop Culture Bracket. I’m a child of the 80s, and Cheers (under-seeded as an 8, by the way) has always made more sense as a workplace comedy. That is, until last night. I walked into my in-laws house and this was on their TV:

Now it all makes sense. And I’m going to start catching up on this lost gem on Hulu.

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

Discrimination

• “Discrimination lawsuits double as definition of ‘disability’ expands” — from Walter Olson’s Overlawyered
• TSA Screener May Wear Religious Bracelet While on Duty — from Joe’s HR and Benefits Blog
• Be Careful What You Wish For: Walmart Faces Thousands of Lawsuits as Result of Class Action Victory — from Chris McKinney’s Texas Employment Law Blog
• After partial victory, plaintiff seeks cert in 5th Circuit same-sex harassment case — from Mike Maslanka’s Work Matters
• Customer Created Hostile Work Environments as told through a Homer (Simpson) Like Epic of Naked Golf, Butt Skills & Club House Beatings — from Jason Shinn’s Michigan Employment Law Advisor
• Association Is Not A Protected Category or Is It? — from Mike Haberman’s Omega HR Solutions
• EEOC brews up case — from BostonHerald.com

Social Media & Workplace Technology

• The Social Media Guide for Lawyers v. 2.0 — from Ethan Wall’s Social Media Law & Order
• Employers, Are Your Employees Minding Their Own Business? — from Molly DiBianca’s Delaware Employment Law Blog
• US Social Media by the Numbers – May 2012 — from Jessica Miller-Merrell’s Blogging4Jobs 
• Uses of Social Media for Corporate Counsel - Investigating & Defending Claims — from From the Sidebar
• 7 Essentials of a Social Media Policy That’s Actually Useful — from Radian6
• Is Your Workplace BYOD? Know the Risks! — from Stephanie Thomas’s The Proactive Employer Blog
• BYOD wave sparks big security concerns — from TheAppleBlog

HR & Employee Relations

• Do Noncompetes Kill Creativity? — from Phil Miles’s Lawffice Space
• Valid Arguments on Both Sides Re: Use of Credit Reports for Employment Screening — from Nick Fishman’s employeescreenIQ Blog
• No flush, but two of a kind win in a workplace toilet dispute — from Eric Meyer’s The Employer Handbook Blog
• Office love contract policy: What does this mean to you? — from Employment Law Bits
• Should couples work for the same company? — from Suzanne Lucas (Evil HR Lady) at CBS Money Watch
• You’re Damned if You Fire an Employee At Will for No Reason — from damnedif
• Some Hiring Managers Rate the Attractiveness of Your Spouse… — from The HR Capitalist, Kris Dunn
• Mastering the Finer Points of American Slang — from Alina Dizik at The Wall Street Journal

Wage & Hour

• How Is 2012 Like 1947? — from Wage and Hour Laws Blog
• Myles v. Prosperity Mortgage: Dukes Inapplicable to FLSA Certification — from Impact Litigation Journal
• Can Your Boss Fire You For Taking Vacation? — from by Donna Ballman’s Screw You Guys, I’m Going Home

Labor Relations

• Guest Post: NLRB Acting General Counsel Addresses At-Will Disclaimers and More at CBA Annual Meeting — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Acting General Counsel’s third memo on social media: Not so fast — from John Holmquist’s Michigan Employment Law Connection
• Workers Win Facebook Fight Against Huge Supermarket Chain — from Workplace Fairness
• Who Can It Be Now: Employers Told to Know Who Their Supervisors Are — from Employment Essentials
• NLRB Returns for Round Two in Fight for “Ambush” Elections — from LaborPains.org
• Are Unions Necessary? Great Post from The Atlantic — from Labor Relations Institute
• Duke Study Suggests That “Unions Are Better For Your Health” — from TLNT

25 million reasons to tell a good story

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in.

The allegations of racial harassment in Turley v. ISG Lackawanna Inc. are horrible. They involve graffiti about King Kong and the KKK, a toy monkey with a noose around its neck tied to the plaintiff’s car, and death threats. For the full flavor, I recommend reading the court’s opinion denying (in part) the employer’s motion for summary judgment.

Yesterday, the jury returned a $25 million verdict in favor of Mr. Turley on his claims of racial harassment and intentional infliction of emotional distress. According to the Buffalo News, one of the employer’s themes at trial was that “much of what happened at the steel plant is the kind of ‘trash-talking’ that’s common in manufacturing facilities.”

I once handled a case with similarly egregious allegations of racial harassment (KKK graffiti, liberal n-bombs, threats to drag the plaintiff tied to a truck, and a fistfight with his allegedly racist supervisor). The case settled on the eve of trial for several decimal points less than $25 million.

At trial, I was not planning on debasing the plaintiff’s allegations by challenging their veracity (there were too many witnesses that would verify most of them), or by portraying the events as something they were not—such as horseplay or trash-talking. Instead, I built my case around the fact that the plaintiff had resigned in the face of these allegations and voluntarily chose to return to the same workplace a few months later. He only sued (I would argue) out of embarrassment after losing a fight. In other words, I was planning to try the case by challenging the plaintiff’s perception of the workplace and the harm it caused him, not the racial motivation of his co-workers.

I know nothing about Turley v. ISG Lackawanna other than what I’ve read in the above-linked opinion and news story. But, it strikes me that likening KKK graffiti and a toy monkey with a noose around its neck as common “trash talking” is a recipe for a disaster, even if $25 million strikes me as excessive.

Vague complaint dooms employee’s retaliation lawsuit

Susanne Pintagro worked for Sagamore Hills Township as an administrative assistant. When a newly hired intern made her feel “uncomfortable and concerned for [her] safety” she took her concerns to the township’s trustees. The trustees determined that because Ms. Pintagro and the intern had to work the same schedule, and gave her the choice of resignation or termination. After Ms. Pintagro resigned, she sued, claiming, among other things, that the township retaliated against her for reporting the intern’s workplace harassment.

In Pintagro v. Sagamore Hills Twp. (Ohio Ct. App. 5/23/12), the court of appeals affirmed the dismissal of her retaliation claim. It concluded that Ms. Pintagro had not engaged in protected activity sufficient to raise the protections of Ohio’s anti-retaliation statute:

It was Ms. Pintagro’s burden … to establish that she engaged in a protected activity, that is, to demonstrate that she “opposed an unlawful discriminatory practice” such as harassment because of her “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” …

Ms. Pintagro also has not presented any authority for her argument that a court should infer discriminatory intent when an employer fails to investigate a claim of workplace harassment…. Even assuming that [the] actions constituted harassment, it is as likely that his conduct was motivated by a personality conflict or other non-discriminatory reasons as it is that it was motivated by prejudice.

In other words, because Ms. Pintagro could not prove that she complained about unlawful harassment, her retaliation claim failed.

Repeat after me:

We will not do what Sagamore Hills Township did in this case.

When an employee comes to you with a complaint about a co-worker, do not ignore it, do not fail to investigate it, and do not fire the employee (or force her to resign). Yes, you might successfully defend a subsequent retaliation lawsuit based on the vagueness of the complaint. But, you might also step in a huge pile. This court refused to interpret a woman’s complaint than a man made her “uncomfortable and concerned for [her] safety” as a complaint about sexual harassment. Another court, however, could just as easily conclude that a jury should have the final say in interpreting that complaint.

Constructive discharges cannot exist in a vacuum of illegality

A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. Usually, a constructive discharge arises in the context of a discrimination lawsuit, satisfying the “adverse action” necessary to support the claim.

What happens, though, when there is no connection between the resignation and the law alleged to have been violated. Can an employee claim that a constructive discharge occurred in this vacuum? Kemper v. Springfield Twp. (Ohio Ct. App. 6/6/12), says no.

Patrick Kemper worked as a patrolman for the Springfield Township police department. The department had a formal policy requiring employees to submit a written request, and receive written permission, before engaging in outside work. Kemper planned to start a side security business. He discussed the idea with his supervisor, Chief David Heimpold, who told him that there would have to be precautions to prevent any conflict with police business. A few months later, Kemper submitted a letter to the department misstating that Heimpold had given permission to operate the business. When the township administrator, Michael Hinnenkamp, confronted Kemper with his lie, and with the prospect of an internal investigation, likely termination, and the loss of his pension and benefits, he resigned.

Kemper sued, claiming a constructive discharge related to an FMLA leave he was taking at the time. The jury awarded Kemper $491,000. The court of appeals agreed that the township had constructively discharged Kemper:

Hinnenkamp let it be known that any disciplinary proceeding would in all likelihood end in termination and that Kemper would lose his pension and other benefits…. Kemper had reasonably believed termination to be a foregone conclusion….

The court concluded, however, that the constructive discharge was lawful: 

But our inquiry does not end with the conclusion that Kemper produced sufficient evidence with respect to the alleged constructive discharge. A plaintiff must also establish a connection between the exercise of FMLA rights and the adverse employment action…. All of the evidence demonstrated that Kemper’s acknowledged dishonesty was the basis for the challenged discharge. There was no threat of discipline prior to the letter submitted to Heimpold and no indication in the record that Kemper's absences—or the conditions that led to those absences—bore any relationship to the adverse employment action.

Employees resign all the time, sometimes for reasons related to poor treatment by their employers. As this case makes clear, unless that poor treatment is connected to protections provided by the law, the resignation cannot form the basis for a lawsuit.

Know when to fish, and when to cut bait

I spent last week on Hilton Head Island, South Carolina. If you’ve never been there, do yourself a favor a take a trip. It's about as perfect of a vacation spot you can find in the continental 48 (see sunset below).

On the last day of our vacation, my family took a dolphin cruise through the Calibogue Sound. It was a hands-on trip for the kids. They got to cast a fishing net, pull up a crab pot, and fish for shark. The ship’s captain told us that they usually catch a lot of shark. For example, the day earlier they had reeled in 19, including two baby hammerheads. So, it was with much excitement that my daughter cast her line into the sound. After about 5 minutes (an eternity for a 6-year-old) she started asking when she would catch her shark. My wife explained that fishing is more about patience and relaxation than actually catching fish. As you would imagine, that did not go over so well with my newly minted 1st grader, although she did stick with it and enjoyed the experience. We, however, were not the only ones having issues. The captain moved the boat to what he hoped would be more fertile water. It wasn’t. She moved again, hoping the third time would be the charm. It wasn’t, and she had to call it a day. Indeed, on our cruise, only one lone shark was reeled in (by the boy next to us, much to my daughter’s chagrin).

As I am wont to do when I am not blogging, I began to think about what this tale could teach you, my readers. Much like fishing, in dealing with marginally performing workers, employers must know when to fish and when to call it a day. And, much like our ship’s captain, you usually don’t quit at the 1st sign of failure.

Employees are investments—of time, training, salary, and benefits. Unless an employee commits an egregious violation of the rules that cannot be tolerated, most deserve multiple chances to prove themselves worthy. Performance problems are not terminable offenses; they are teaching opportunities. Use them to hone your employees, and only terminate when an employee proves himself or herself un-teachable. You will be surprised how many employees you can rehabilitate (and investments you can save) merely by resisting the urge to cut bait too early on your marginal performers.

I’ll miss experiencing the sunsets at Harbour Town, but I’m happy to be home, and, believe it or not, happy to be back at work.

(If you’re interested in reading more about our vacation—and who wouldn’t be—you can jump over to my wife’s blog).

Best of: Despite what some think, employers do not set out to discriminate

Despite what some think, employers do not set out to discriminate:

http://www.ohioemployerlawblog.com/2012/03/despite-what-some-think-employers-do.html

Best of: 10 thoughts for your mobile device policy

10 thoughts for your mobile device policy:

http://www.ohioemployerlawblog.com/2012/02/10-thoughts-for-your-mobile-device.html

Best of: Disability discrimination law in Ohio is a mess

Disability discrimination law in Ohio is a mess:

http://www.ohioemployerlawblog.com/2012/01/disability-discrimination-law-in-ohio.html

See also Courts are finally starting to apply ADAAA—and it ain’t pretty:

http://www.ohioemployerlawblog.com/2012/03/courts-are-finally-starting-to-apply.html

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

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

http://www.ohioemployerlawblog.com/2012/01/friending-co-workers-depends-on-your.html

See also Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data:

http://www.ohioemployerlawblog.com/2012/02/latest-stats-about-supervisors-being.html

Best of: Trying to make sense of the NLRB’s lastest social media missive? Good luck

Trying to make sense of the NLRB’s lastest social media missive? Good luck:

http://www.ohioemployerlawblog.com/2012/01/trying-to-make-sense-of-nlrbs-lastest.html

WIRTW #228 (the “Sound Odyssey” edition)

Where were you in 1983? I was in the 5th grade at Loesche Elementary School in Northeast Philly. I’ll get back to 1983 in a second.

Today is my daughter’s last day of kindergarten. Her (amazing) teacher (see #13 below) assigned the class a time capsule project. Each child had to answer 14 questions, which, along with a letter from mom and dad, will be sealed in a time capsule, to be opened at their graduation in 2024. Here’s my daughter’s submission:

When I posted this photo to Facebook, one of my grade school classmates reminded me of the time capsule our 5th grade class buried in 1983. He even had the article from The Jewish Times discussing the project (page 1 / page 2). For the record, I sacrificed the instruction manual from our Smurfs ColecoVision game. I’m not sure what’s more shocking, that I’m admitting to owning a Smurfs game, or that people paid $569.99 for a VCR (check out the Sound Odyssey ad at the bottom of page 2, and bonus points to anyone who can name any other store that was in the Leo Mall).

I am taking a much needed vacation next week. Enjoy some of my greatest hits spanning the past 6 months. I’ll be back on June 11 with brand new content.

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Thanks to Tom Mighell for featuring me on Wednesday as the Blawg of the Day at Inter Alia. Tom’s blawg is one of the originals, dating all the way back to 2002. It’s always nice to be recognized by one of the trailblazers.  

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

Discrimination

• Employee “loses track of time” due to disability — from Walter Olson’s Overlawyered
• Up in smoke: Hopes of ADA protection for medical marijuana use are dashed … for now, anyway — from Robin Shea’s Employment and Labor Insider
• The ADA does not protect medical-marijuana use, but… — from Eric Meyer’s The Employer Handbook Blog
• USERRA’s Statute of Limitations — from Molly DiBianca’s Delaware Employment Law Blog
• Crude, Bullying, and Despicable Workplace Conduct Does not Create Hostile Work Environment based on Sexual Harassment — from Jason Shinn’s Michigan Employment Law Advisor
• Company’s wording of termination letter, which mentioned employee’s disability leave, was direct evidence of discrimination — from Employment Law Matters
• ‘The Bachelor’ and ‘The Bachelorette’: Inside the Racial Discrimination Lawsuit — from Jennifer Pozner at The Daily Beast

Litigation

• Surprise! Study Finds That Everyone Hates Employment Litigation — from Mark Toth’s Manpower Employment Blawg
• You’re Damned if You Don’t Take the Right Steps After Being Sued — from damnedif
• Litigation is Not War, Nor Should it Be — from San Antonio Employment Law Blog

Social Media & Workplace Technology

• Trash Your Social Media Policy — from Heather Bussing at HR Examiner
• NLRB Releases Memo on Social Media Policies — from Phil Miles’s Lawffice Space
• Homeland Security reveals hundreds of words that could put you on their online watch list — from Boy Genius Report
• Who Owns Social Media? Risk Management? — from SocialFish
• The Password Debate: What’s an Employer to Do? — from Technology for HR
• Michigan Federal Court Adopts Narrow Interpretation of Civil Liability Under Computer Fraud and Abuse Act — from Trading Secrets

HR & Employee Relations

• Summer Reading: Is the “Mommy Porn” in “Fifty Shades of Grey” Workplace Safe? — from Dan Schwartz’s Connecticut Employment Law Blog
• How to handle sexual misconduct at work — from Evil HR Lady, Suzanne Lucas
• What the 1990s taught us about abusive work environments — from David Yamada’s Minding the Workplace
• Watch Where You Turn Up the Volume — from New York Times
• Treat Your Terminations as “For Cause” (Even When They’re “At Will”) — from Litigation PostScript
• Can Task-Based Employment Really Work? — from The Proactive Employer Blog
• Whistleblowers: Why you should heed their warnings — from Fortune
• Employee Handbook Version 2.Awesome — from Workplace Prof Blog
• Dear Evil Skippy: I Caught My “Temporarily Disabled” Employee Out Shopping — from Evil Skippy at Work

Wage & Hour

• 5 Steps to Better Wage & Hour Law Compliance — from Blogging4Jobs
• Wage and Hour Violations in the New Economy: A Tricky Business for Employers and Employees Alike — from Employment Lawyer Blog
• What Is A “9/80” Pay Plan? — from Wage and Hour Laws Blog
• Paycheck Fairness Act Moves Forward — from Washington D.C. Employment Law Update
• Fairness Doctrine — from We Know Next
• In FMLA-leave cases, here’s why employers' counsel always should depose the family member the employee claims needs to be “cared for” — from Mike Maslanka’s Work Matters
• Must an Employer Designate FMLA Leave When the Employee Does Not Want to Use FMLA Leave, or When the Employee Fails to Mention FMLA? — from Jeff Nowak’s FMLA Insights

Labor Relations

• Unions Restrict What Workers Can Get Paid — from Michael Haberman’s Omega HR Solutions
• Appellate Court Credits Employer’s Challenge of Mock Card Check Ceremony During Union Campaign — from Labor Relations Counsel

NLRB’s position on social media policies remains a bungled mess

Oh! what a tangled web we weave
When first we practice to deceive!
– Walter Scott, Marmion, Canto VI, Stanza 17 (1808)

Yesterday, NLRB Acting General Counsel Lafe Solomon issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” If you read the employment law blogs today, my guess is that you will find a whole bunch of management-side employment bloggers critical of Mr. Solomon (Molly DiBianca, Eric Meyer, and Dan Schwartz, for starters). Allow me to add my name to the mix. I apologize in advance for my treatise-length post.

As you might recall, I was very critical of Mr. Solomon’s 2nd report in its treatment of employer policies. Has the Acting GC solved any conundrums for employers with his latest missive? Can a company draft a social media policy with any teeth that the NLRB will conclude passes muster? Don’t count on it. In fact, Mr. Solomon's latest missive is as galling of a piece of legal analysis I have ever read. It's nothing short of intellectual dishonesty masquerading as hair splitting. How else can you explain the following razor-thin distinctions?

• A policy that prohibits the “release [of] confidential guest, team member or company information” is illegal, but a policy that cautions employees to be suspicious when asked to disclose confidential information is okay.
• This policy is illegal: “When in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea.” And this policy is illegal: “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline" are illegal.” Yet, this policy is legal: “Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers”.
• “Get permission before reusing others’ content or images” is illegal, while “Respect all copyright and other intellectual property laws. For [Employer’s] protection as well as yours” is legal.

Other baffling illegal policies?

• “Think carefully about ‘friending’ co-workers.”
• “Report any unusual or inappropriate internal social media activity.”
• “Don’t comment on any legal matters, including pending litigation or disputes.”
• “Adopt a friendly tone when engaging online. Don’t pick fights…. Remember to communicate in a professional tone…. Don’t make any comments about [Employer’s] customers, suppliers or competitors that might be considered defamatory.”
• “You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers.”
• “Avoid harming the image and integrity of the company.”

Mr. Solomon also invalidated various “savings clauses,” including one that provided:

This policy is for the mutual protection of the company and our employees, and we respect an individual’s rights to self-expression and concerted activity. This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.

This unlawful policy is not all that different from the workplace posting that the NLRB wanted to have in every break room in America, yet it’s not good enough for any employer’s social media policy? Where is the logic and consistency? This is the exact breed of intellectual relativism that makes me furious.

Here’s the kicker. If challenged, Mr. Solomon would have to take issue with his own agency’s internal social media policy. Thanks to Mike VanDervort’s The Human Race Horses and Human Resources Executive Online, we can take a peek at the NLRB’s own social media policy, which prohibits: “Comments that the NLRB Office of Public Affairs deems inappropriate.” How is the NLRB’s own policy substantively different than any of the policies Mr. Solomon thinks are overly restrictive of employees’ rights to engage in protected concerted activity?

So, what’s the takeaway? The NLRB’s position on social media policies remains an absolute mess. If anything, it’s more confusing now than before Mr. Solomon issued his 3rd report. Employers need to be able to adopt bright line rules to guide their employees towards proper conduct. Yet, this report puts employers in the dangerous position of being fearful of drawing even the simplest of lines. The result, I’m afraid, is that businesses won’t adopt any rules, creating online anarchy among their employees.

As a emerging communication tool, social media is unstructured enough. Do we really want to create unnecessary legal impediments to disincentivize employers from drafting the rules their employees desperately need?

Perhaps the answer for employers lies in this policy, which Mr. Solomon concluded was lawful:

Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate [Employer] policies, and with outside individuals and/or entities. If you’re about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it.

Think before you click? My four-word social media policy might be a whole lot closer to reality.

Epilogue: If you scroll down to the last 3 pages of Mr. Solomon’s report, you will find a form social media policy on which the NLRB signed off. If you want to err on the side of abundant caution, this policy is the one you should be using (with the input of your attorney). Until the federal courts weigh in on this issue, however, we will have to live in world of uncertainty over the permissible scope, reach, and breadth of social media and other workplace communication policies.

BREAKING: NLRB issues 3rd report on social media

Hot off the presses, NLRB Acting General Counsel Lafe Solomon has issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” I am digesting the report and will share my thoughts first thing tomorrow morning. Here’s a preview: if you are holding your breath for a sign that the NLRB will allow employers to draw lines to guide employees about what’s right and wrong (or permissible and impermissible), you will suffocate.

Time to re-read your non-competition agreements; Ohio Supreme Court issues ruling on enforceability by successors

Acordia of Ohio, L.L.C. v. Fishel [pdf], decided last week by the Ohio Supreme Court, is a pretty straight-forward case. In this case, four ex-employees claimed that Acordia could not enforce their non-competition agreements. They argued that the under the plain language of their covenants, the agreements were limited to the predecessor employer, and that there were no allowances in the agreements for a successor entity such as Acordia, which had acquired the original employer.

The Supreme Court agreed:

The agreements defined the “Company” only as “Frederick Rauh & Company,” the predecessor employer. Because the agreements did not extend the definition of “Company” to include successor entities, Acordia could not enforce them. Simply, the agreements lacked any language that specifically assigned rights to the new company….

The noncompete agreements between the employees and their original employers specified that they applied only to the specific companies that had originally hired each employee. Because the agreements made no provision for the continuation of the agreement upon any acquisition of the original company by another company, the agreements are not enforceable by the L.L.C. according to the agreements’ original terms past the two-year noncompete period agreed to by the employees and their original employers.

In other words, if have any current non-competition agreements that operate under Ohio law, you need to review them to ensure that they allow for successor entities. Otherwise, even a simple change in corporate structure could render your agreement unenforceable.

Going forward, non-competition agreements should:

1. Define “employer” to include the current entity, in addition to any successors and assigns.
2. Include a specific clause in the agreement, which provides that all rights in the agreement flow to “successors and assigns,” which are entitled to enforce the agreement against the employee.

Luckily for employers, Ohio law provides that continued employment is sufficient consideration to support a non-competition agreement. In other words, you should be contacting your counsel to review all non-competition agreements for compliance with the Acordia case, and redrafting and reissuing to employees where necessary.

Ohio joins the fray on employers asking for social media passwords

It was only a matter of time before Ohio joined the list of states to introduce legislation that would prohibit employers from asking for social media passwords. Senate Bill 351, introduced late last week, would amend Ohio’s employment discrimination statue to make it an “unlawful discriminatory practice” for employers to do any of the following:

• Ask or require an applicant or employee to disclose usernames or passwords associated with, or otherwise provide access to, a private electronic account of the applicant or employee;
• Fail or refuse to hire an applicant for employment, or discharge, discipline, threaten to discharge, discipline, or otherwise penalize an employee, if the applicant or employee refuses.

The bill defines “private electronic account” as “a collection of electronically stored private information regarding an individual, including such collections stored on social media internet web sites, in electronic mail, and on electronic devices.” It then broadly defines “social media internet web site” as “an internet web site that allows individuals to do all of the following”:

1. Construct a public or semipublic profile within a bounded system created by the service;
2. Create a list of other users with whom the individual shares a connection within the system; or
3. View and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

The bill does not prohibit an employer from monitoring the electronic accounts of employees or applicants on the employer’s own Email or Internet system.

As far an enforcement, the bill would permit aggrieved individuals to file a charge of discrimination with the Ohio Civil Rights Commission, or a private cause of action in court. It also allows the OCRC to levy fines of up to $1,000 for the first violation and up to $2,000 for each subsequent violation.

I’ve said it before and I’ll say it again, this is not a problem that needs fixing. Companies simply aren’t engaging in the type of conduct this bill seeks to legislate. I am troubled that the path this legislature chose is to seek to make this an unlawful discriminatory practice, on the same plane as race, sex, age, and disability discrimination. Moreover, there are no exceptions for industries that might have a legitimate reason to know what applicants or employees are doing on social sites (schools, police departments, financial services). The lack of any exceptions is a glaring omission from this legislation.

This bill is in its infancy. I will continue to monitor its status and update you with any movement in Columbus.

6th Circuit applies “but for” causation to ADA claims (but does it matter?)

More than a year ago, the 6th Circuit upheld its use of a “sole reason” causation standard in ADA cases, but invited the full 6th Circuit to revisit (and overrule) this issue. That en banc panel issued its ruling last Friday, and, expectedly, it overruled the Court’s prior use of the “sole reason” causation standard. Unexpectedly, however—in Lewis v. Humboldt Acquisition Corp. (6th Cir. 5/25/12) [pdf]—the Court replaced it with a similarly restrictive “but for” causation standard.

Relying on the linguistic similarities between the ADA and the ADEA, the Court looked to the Supreme Court’s decision in Gross v. FBL Financial Services for the appropriate causation standard:

[W]hat standard should trial courts use in instructing juries in ADA cases? Gross [v. FBL Financial Services] points the way. The ADEA and the ADA bar discrimination “because of” an employee’s age or disability, meaning that they prohibit discrimination that is a “‘but-for’ cause of the employer’s adverse decision.”

Case closed. Or is it? As one of the dissenting opinions points out, the 6th Circuit is very much in the minority in its interpretation of the ADA’s causation standard. “Significantly, a majority of our sister circuits have embraced the motivating factor standard in reviewing ADA claims.” (citing to the 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, and 11th Circuits). Could this conflict among the circuits now head to the United States Supreme Court for resolution?

Or, is this issue a mere academic exercise? The ADA Amendments Act changed the ADA’s operative causation language. Pre-amendments, the ADA provided: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” The ADAAA, however, changed the “because of” causation standard to a “discriminate … on the basis of disability” standard. This alteration is significant, because it changes the key language in the ADA that had mirrored the ADEA, and upon which the 6th Circuit based its opinion that the rationale of Gross also applies to ADA claims. Is is splitting hairs to say that “because of” is materially different than “on the basis of?” Maybe. But, it is not insignificant that the ADAAA altered this key phrase.

As you can see, these issues are complex and, despite the en banc ruling, are far from settled. For employers, you are infinitely better off making reasonable accommodations and avoiding disability discrimination claims, so that you do not place yourselves in positions to have to worry about proper burdens of proof and causation standards. In other words, if you don’t put yourself in a position to be sued, because-ofs and but-fors simply don’t enter the equation.

WIRTW #227 (the “replay” edition)

Yesterday afternoon, I appeared on the The Proactive Employer, talking all things workplace social media with host Stephanie Thomas, fellow guest Molly DiBianca (of the Delaware Employment Law Blog and @MollyDiBi). Thanks to Stephanie for a great hour.

Luckily for you, if you missed yesterday’s hour live, its available for replay two different ways:

• Streaming via The Proactive Employer.
• Download via iTunes.

Now there’s no excuse for not listening. Enjoy your holiday weekend.

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

Discrimination

• How to lose a disability discrimination case in 5 easy steps… — from Eric Meyer’s The Employer Handbook Blog
• Second Circuit = The Avengers? Judges Create Alter Ego Liability — from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC: Confederate Flag = Hostile Work Environment? — from Phil Miles’s Lawffice Space
• Religious employers, the ministerial exception and single moms—again! — from Robin Shea’s Employment and Labor Insider
• Title VII does not protect employee terminated because of illegal alien spouse — from EmployerLINC
• Another EEOC Systemic Lawsuit Bites The Dust In A Favorable Ruling For Employers — from Workplace Class Action Litigation
• Time to check the dress code? Can an employee be “too hot?” — from John Holmquist’s Michigan Employment Law Connection
• Getting Fired for Being “Too Hot” — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Illinois Passes Password-Privacy Law — from Delaware Employment Law Blog
• Are You a Victim of Social Media Discrimination? — from Social Media Today
• Don’t Search Cyberspace Without This — from Mark Toth’s Manpower Employment Blawg
• iPhone thief’s Disney cruise adventure goes on public display in owner’s Facebook album — from The Verge
• IBM stung by BYOD pitfalls — from TheAppleBlog

HR & Employee Relations

• Do temporary employees have rights? — from Evil HR Lady, Suzanne Lucas
• Expanding Ban the Box Legislation Impacts Small Business — from COSE Mindspring
• I Do Not Like to Fire People — from You’re the Boss Blog
• Five Employment Law Takeaways From American Idol — from TLNT
• Dear Evil Skippy: Can My Supervisor Make Me Use Less Perfume? — from Evil Skippy at Work
• 6 Reasons You’ll Be Investigating More Workplace Bullying This Year — from i-Sight Investigation Software Blog
• Whoomp, There It Is: Employees Are Skipping Work To Watch Sports — from Workplace Diva
• Female bus driver claims her boss licked her face — from New York Daily News
  

Wage & Hour

• Spring Tune-Up: Gas Stations Should Review Their Pay Policies and Recording Practices to Steer Clear of the DOL’s Recent Enforcement Initiative Targeting Them — from Wage & Hour Defense Blog
• Court Sends Collective Action to the Showers on Wage Claim for Time Spent Changing Clothes and Blows the Whistle on the “Clock” Starting when Traveling From the Locker Room — from Trade Secret / Noncompete Blog
• Taking FMLA leave does not affect employee’s obligations under non-FMLA attendance policies — from Employment Law Matters

Labor Relations

• What the U.S. Chamber Of Commerce Doesn’t Want You to Know About Your Workplace Rights — from Donna Ballman’s Screw You Guys, I’m Going Home
• 2nd Circuit Overturns NLRB, Holds Starbucks Can Limit Employee Union Flair — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Ohio Supreme Court upholds statewide workplace smoking ban

On November 7, 2006, Ohio voters passed a ballot initiative to
enact the Smoke Free Workplace Act. It became effective on December 7, 2006, and is codified in R.C. Chapter 3794.

Generally, to adhere to the Act, businesses must do four things:

• Prohibit smoking in any enclosed “public place” or “place of employment,” including areas immediately adjacent to locations of ingress or egress.
• Post no-smoking signs—with the toll-free enforcement number, 1-866-559-OHIO (6446)—at all entrances or areas of transition between non-regulated and regulated areas.
• Remove ashtrays and other tobacco receptacles.
• Not discharge, refuse to hire, or in any manner retaliate against anyone for exercising any rights under the workplace smoking ban law.

Yesterday—in Wymsylo v. Bartec, Inc. [pdf]—the Ohio Supreme Court unanimously upheld the constitutionality of the Smoke Free Workplace Act.

If you have been dragging your feet in enforcing this law in your business, or have been hoping for a reprieve from the Ohio Supreme Court, you are out of luck. You need to ensure that your business complies with the Act and is smoke free.

In addition, whether you are in Ohio or another state, and your business is to be smoke-free, you should adopt a formal smoke-free policy, which includes formally designating where on your property employees are allowed to smoke (if allowed at all).