WIRTW #241 (the “replay” edition)

In case you missed it,and for your listening pleasure—

Here’s yesterday’s appearance on DriveThruHR:

Listen to internet radio with Wempen and Tincup on Blog Talk Radio

And here’s yesterday’s appearance on The Proactive Employer:

Listen to internet radio with TheProactiveEmployer on Blog Talk Radio

P.S. Today is the last day to nominate your favorites legal blogs for the ABA Journal’s Blawg 100. Thanks for your support.

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

Discrimination

• EEOC’s “emerging issues”: LGBT rights, and accommodations for pregnant women — from Robin Shea’s Employment and Labor Insider
• “Family Responsibilities Discrimination” - Is This The Next Worry For Employers? — from Employment Discrimination Report
• Benchslap: Reinstating Sexual Harasser is “Absurd” — from Phil Miles’s Lawffice Space
• Employer Liability in Single-Severe-Incident Harassment Cases — from i-Sight Investigation Software Blog
• Playing the Race Card — from Workplace Prof Blog
• A Look to the Future: Human Augmentation as Reasonable Accommodation — from Mike Haberman’s Omega HR Solutions
• Religious accommodations 101 — from Sindy Warren’s Warren & Associates Blog

Social Media & Workplace Technology

• Plaintiff has to turn over emotional social media content in employment lawsuit — from Internet Cases
• How often do you Google your own name? — from Social Media Today
• What do employers look for when they monitor your Internet usage at work? — from Ask a Manager
• This Is Why You Want Passwords On Your Phone And Computer — from Kashmir Hill’s The Not-So Private Parts
• Why I May Have to Eat My Emoticons — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Case Study: How Hard Should You Push Diversity? — from Harvard Business Review
• Employee Background Checks and the Fair Credit Reporting Act — from Minnesota Employer
• My coworker is making me sick — from Evil HR Lady, Suzanne Lucas
• Great moments in financial employment regulation — from Walter Olson’s Overlawyered
• Man Fired for 49 Year Old Conviction: Who’s to Blame? — from Nick Fishman’s employeescreenIQ Blog
• Ken and Barbie Bias in the Hiring Process… — from The HR Capitalist, Kris Dunn

Wage & Hour

• Back to School for Kids; Back to Work Limits for Employers for Child Labor — from Dan Schwartz’s Connecticut Employment Law Blog
• Vargas v. GNC: Off-the-Clock Class Certified — from Impact Litigation Journal
• Rotten apples and the FMLA: What to do — from HR Cafe

Labor Relations

• Labor Has a Day, So Why Not Corporations? Retired Employment Lawyer Touts Idea in Op-Ed — from ABA Journal Daily News
• Overbroad At-Will Disclaimers and Confidentiality Requests Are Being Challenged in Non-Unionized Workplaces — from Employment & the Law

Unemployment (or prior lawsuits) as a protected class? Not so fast says the 6th Circuit

Last week, in Berrington v. Wal-Mart, the 6th Circuit considered the issue of whether a company could be liable for refusing to hire someone because he filed an unemployment claim. William Berrington claimed that a Kalamazoo, Michigan, Wal-Mart’s refusal to rehire him after he filed a unemployment claim related to a prior termination wrongfully violated the state’s public policy. The 6th Circuit disagreed. It ignored (more or less) the issue of the public policy at issue, and instead focused on the nature of the employment decision at-issue — a refusal to hire.

Berrington’s appeal presents us with the question of whether Michigan law recognizes a public policy cause of action for an employer’s wrongful refusal to rehire because an individual claimed unemployment benefits…. The common denominator in all the recognized public policy exceptions to at-will employment is the existence of an employment relationship. An employee’s right to be hired or rehired by an employer, on the other hand, has never been recognized as actionable, under common law on public policy grounds…. In fact, neither party has been able to provide a single decision from any jurisdiction enforcing a retaliatory failure to rehire claim in state common law or public policy, absent some other statutory basis.

While this case was decided under Michigan law, it has implications beyond that state. As the opinion points out, there exist no cases from any jurisdiction (Ohio included) recognizing a failure to hire claim under state common law or public policy.

While you might not be presented with the issue of refusing to rehire an ex-employee who filed an unemployment claim, you may have other reasons not to hire someone. For example, you might decide that a potential employee is tainted because he or she filed a lawsuit against a previous employer. If the lawsuit raised issues protected by the employment discrimination statutes, for example, those same statutes’ anti-retaliation provisions likely protect the employee from failure to hire on that basis. What if, however, the prior lawsuit involved something other than protected activity in its own right (e.g., a common law tort such as invasion of privacy, defamation, or intentional infliction of emotional distress)? If a prospective employer locates the old lawsuit on the Internet and refuses to hire someone it perceives as a potential problem down the road, Berrington suggests that the employer might be off the hook for any potential liability stemming from the refusal to hire. If state common law does not recognize a failure to hire claim, as Berrington suggests, then lawsuits against prior employers should be acceptable fodder for hiring decisions (the civil rights statutes notwithstanding).

How long is too long for a medical leave of absence?

Last year, I suggested that the ADA has swallowed the FMLA for employee medical leaves:

The recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA…. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

Last week, the 10th Circuit Court of Appeals clarified that while unpaid medical leaves are a possible reasonable accommodation, no employee is entitled to an indefinite leave of absence.

In Robert v. Board of Cty. Comm’rs of Brown Cty. Kan. (8/28/12), the 10th Circuit concluded that an indefinite leave of absence is per se unreasonable. Catherine Robert, who worked as supervisor of released adult offenders, developed sacroiliac joint dysfunction. After a lengthy leave of absence, including 12 weeks under the FMLA, Robert remained unable to perform all of her required duties—including visiting offenders at their homes or in jail, supervising drug and alcohol screenings, and testifying in court. She sued for disability discrimination following her termination.

In upholding the dismissal of her claim under the ADA, the court focused on the indefinite nature of her leave of absence:

Although site visits and other out-of-office work were an essential function of her position, Robert would be nonetheless qualified if she could have performed those duties with a reasonable accommodation…. In light of Robert’s complete inability to perform site visits at the time of her firing, the only potential accommodation would be a temporary reprieve from this essential function. Our precedents recognize that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation…. There are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.”

There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position…. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. For that reason, she was not a qualified individual under the ADA and her claim of discrimination fails.

What does this case mean from a practical standpoint? That an indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA. On the broader issue—how long of a leave is too long to be reasonable—the court punted. While the court passed on this important issue, it did suggest that six months might be too long, although a hard-cap on a duration of a leave as a reasonable accommodation is a moving target.

If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to open a dialogue with the employee about a return date, and prepare to be flexible. While an indefinite leave almost always will be unreasonable, what is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company.

[Hat tip: Eric Meyer’s The Employer Handbook]

Are your policies updated to account for Ohio’s new ban on texting while driving?

The statistics are enough to scare anyone from texting while driving:

• Drivers are 23 times more likely to crash while texting and driving.
• If you only take your eyes off the road for five seconds, at 55 mph, you’ve traveled the length of football field.

As of last week, there is a reason besides safety not to text and drive in Ohio—it’s against the law.

House Bill 99 took effect August 31, and criminalizes texting while driving. It creates two levels of violations—one for adults and one for minors.

• Adult drivers face a $150 fine for texting or reading/sending email. It is a secondary offense, which means that police can only ticket if you are pulled over for another reason.
• Minors are prohibited from using any mobile communication device while operating a motor vehicle. If you are under 18, this means no texting, emailing, talking on the phone, or using a GPS, even while sitting at a traffic light or stuck in traffic. Also, it is a primary offense, carrying mandatory and escalating fines and suspensions.

What does all this mean for employers? If you have employees driving for your business, you should update your policies to account for this new law. Remind employees that texting while driving is not only against the law, but also against company policy. Your insurance carriers, and, believe it or not, your employees and their families, will thank you.

WIRTW #240 (the “see me … hear me” edition)

Every once in a while I like to give you, my readers, an update of where you can catch me live.

Next week, you have two chances to hear me from the comfort of your desk:

• On Thursday, September 6, at 1 pm EDT, I’ll be making my triumphant return to DriveThru HR, the Internet’s most popular daily radio show covering human resources. Listen live at http://www.blogtalkradio.com/drivethruhr, and share your thoughts on twitter using #dthr or @drivethruhr.

• That same afternoon, at 3 pm EDT on September 7, I’ll be making my 7th appearance on The Proactive Employer radio show, hosted by Stephanie Thomas. This appearance, entitled Your Most Challenging and Bizarre HR Questions Answered, will be a little different. Instead of discussing a pre-arranged topic, I, along with Phil Miles, Robin Shea, and Eric Meyer, will be answering questions, live and unrehearsed, from Stephanie’s listeners. It should make for an interesting experience. If you have a weird or bizarre employment law question, or just want to chat, you can:

  • Call on the listener Line: 1-888-553-6673
  • Tweet questions with the hashtag #TPESHOW
  • Login as “guest” to the show’s live chat and ask questions anonymously

If you’d rather see me live and in person, October and November give you four different chances to see me speak on my favorite topic, social media in the workplace.

• On October 1, I’ll be in Uncasville, Connecticut, leading a panel discussion at the 7th Annual National Employment Practices Liability ExecuSummit entitled, Employment Law in the Information Age: Best Practices for Employers 

• On October 16, I’ll be in San Francisco, speaking at the GSMI HR Compliance Conference. I spoke at this same conference last year, and am very excited to make a return appearance. It’s a great conference because it is specifically tailored to to the concerns of strategic level decision-makers, legal staff, and HR pros and leaders. My topic: Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace

• I am also presenting Think Before You Click… at the 7th annual COSE Small Business Convention, on October 25, at the Kalahari Resort & Convention Center in Sandusky, Ohio. COSE’s SBC is the premier small business event in the country. Over two days it offers 48 educational workshops, six national keynote speakers, a business-to-business tradeshow, and hands-on learning labs.

• Finally, I’ll be back on home turf on November 28, leading a panel discussion on workplace social media issues at the 2012 Midwest Social Media Summit.

If you are planning on attending any of these events, please reach out and let me know ahead of time so that we can meet. Or, just stop me and say hello.

Finally, if you are a fan of this blog (or others), you still have a whole week to submit your nomination(s) for the ABA Journal’s Blawg 100. The deadline is September 7, and the process is easy. Thanks for your support.

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

Discrimination

• The mommy track — from The Economist
• An employer’s nightmare: the anonymous harasser — from Robin Shea’s Employment and Labor Insider
• Dear Evil Skippy: Two Men, No Wedding, One Complaint — from Evil Skippy at Work
• Chrysler Liable for “Repulsive Harassment” of Employee — from Maryland Employment Law Developments
• America Runs on … Discrimination? — from The Proactive Employer Blog

Social Media & Workplace Technology

• Spying on Your Employees? Know the Law First — from Dan Schwartz’s Connecticut Employment Law Blog
• Can Law Keep Up with Technology? — from Heather Bussing at HR Examiner
• FINRA Regulatory Notice 12-29: Its Impact on Social Media Use — from Social Media Today

HR & Employee Relations

• Can my employer cut my paid time off — from Evil HR Lady, Suzanne Lucas
• The Trade Secret Litigator’s 7 Deadly Sins of Departing Employees in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Reference Checks: Neutral is the New Negative, and Getting Negative Info is Gold… — from The HR Capitalist, Kris Dunn
• Protecting Our Children: Another Rant About School Employment Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Apple’s Genius training manual shows how company herds and grooms its “iSheep” — from Boy Genius Report

Wage & Hour

• FLSA Questions In Wake Of Hurricane Isaac — from Wage and Hour Laws Blog
• The Importance Of Accurate Time/Hours Records In The Social Media Age — from Social Media Employment Law Blog
• BYOD Workers Are Working An Extra 20 Hours Per Week Unpaid — from Workplace Diva
• Work breaks: a right or a privilege? — from Employment Law Bits
• Can an Online Checklist Really Help Decide Who Is an Exempt Employee? — from TLNT
• FMLA may require you to adjust employee performance standards — from Eric Meyer’s The Employer Handbook Blog
• FMLA “Hours Worked” Includes Prep Time at Home — from Impact Litigation Journal
• Employee’s FMLA Leave Requires an Employer to Adjust Performance Standards — from Jeff Nowak’s FMLA Insights

Labor Relations

• Is the NLRB In Need of a Dictionary? — from Molly DiBianca’s Delaware Employment Law Blog
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Who’s the Boss? New Book Warns About Public-Sector Unions — from LaborPains.org
• Sixth Circuit Upholds NLRB's Pre-Recognition Framework Agreement Ruling — from Workplace Prof Blog

Until next week…

Are you allowed to use social media at work?

This week, Lifehacker has been running a poll asking this question — are you allowed to use social networks at work? The results so far (from nearly 3,100 votes):

• 58.63% = Yes
• 25.8% = No
• 5.89% = Only at specific times
• 9.68% = Only on personal devices

What’s more interesting to me, though, is the comments posted by Lifehacker’s readers. I’ve chosen three to reprint, each of which illustrates an important point about employers’ attempts to regulate social media in the workplace.

1. My employer blocks everything but linkedin, yet they promote internally how they use and we are to use social media to promote and otherwise discuss (in a good manner of course) the company. It’s kind of ridiculous when you get an internal company wide email saying follow us, like us, etc and when you click on it, you get good ole’ websense saying “Denied.” (comment by SpiffyMcDougal)

Companies cannot promulgate a disconnect between their external social media efforts and their internal social media policies. Openness to the public at-large will cause resentment among your employees if you restrict internal access. It sends a mixed (and wrong) message.

2. I can use FB and other sites all I want on my phone because it's not connected to anything in the office. I'm sure it's not allowed but no one really cares. (comment by Dear Zeus)

Bans on the internal use of social media are mostly worthless. Employees are increasingly technologically savvy, and will figure out work-arounds. Why implement a policy that you cannot monitor or control?

3. As the IT Administrator, it was my call whether or not to block social media. I chose not to since I work with a bunch of responsible adults who put their work ahead of their social life. If they need to take a peek a few times a day, no one cares, and it's never become a problem. (comment by Sergio526)

This commenter absolutely hits the nail on the head. The issue of whether to ban or limit access to social media in the workplace is not a black or white issue. It’s an employee-by-employee issue. I am reasonably certain you don’t have a policy telling employees that they are forbidden from reading the newspaper all day long. Yet, if an employee’s productivity or performance is suffering because they can’t pry themselves away from the New York Times, you deal with the problem with that particular employee. The same holds true for Facebook, Twitter, YouTube, or Amazon. It’s only an issue if an employee makes it an issue. Deal with it as a performance problem for that employee, not as a systemic problem that might not exist across your workforce at large.

Accommodating religions starts at home (a love story)

Nine years ago today I got married. Our wedding was not what you’d call traditional. I’m Jewish and my wife is Catholic, and we wanted our ceremony to blend the best of both traditions. While my wife’s dream wedding included her dad walking her down a church aisle, we were willing to sacrifice if we could not find a priest and a rabbi who would accommodate our wishes. With nervous trepidation, we met with the priest of Colleen’s parish, who, as it turned out, was 100 percent on board with our plan. We next found a rabbi, and all of us worked together to craft the ceremony we wanted: in a church, under a chuppah, with a beautiful blend of both religions and our respective traditions and customs.

There has been a lot of ink spilled lately about employers not accommodating employees’ religions. Whether it’s Disneyland refusing to permit a Muslim employee to wear a hijab, or a Burger King franchise denying the request of a Pentecostal employee to wear a skirt instead of pants, or a New York state university firing an employee because of his “I ♥ Jesus” lanyard, employers seem to have forgotten how to accommodate. People are quick to lay blame at the feet of these companies. Yet, teaching how to accommodate starts at home. If children learn exclusion, how can we expect them to act any differently as adults? If nothing else, I know my kids (being raised Catholic, but with a healthy dose of Jewish in the home) should not make these mistakes as they grow. We won’t let them, and, as they age, I hope they won’t want to.

(Happy Anniversary Colleen. I love you.)

Sorry shouldn’t be the hardest word to say

More than two years ago, I wrote the following, in a post entitled The art of the apology:

Sometimes, all someone wants to resolve a problem is an apology. It’s easy to dig your heals in and fight, especially when you are being accused of something as insidious as discrimination. Those fights will cost you hundreds of thousands of dollars in legal fees. Most times, those fights are necessary. Sometimes, though, a simple apology will suffice to restore the status quo…. The next time you are dealing with a sensitive situation with an employee, before shifting into battle mode stop and ask yourself whether a sincere apology will solve the problem. It may be one of the hardest, and best, decisions you will ever make.

Still need convincing? Watch the following video, and then let me know if you still think there is no value in swallowing your pride and simply saying, “I’m sorry.”

Do you know what to do when violence invades your workplace?

Tragically, mass shootings seem to be all the rage in America. The latest occurred last Friday morning outside New York City’s Empire State Building. The shooter was a disgruntled ex-employee targeting his former coworkers.

Do you have a plan in your workplace for a shooting or other emergency? If not, OSHA offers a comprehensive guide for putting together an emergency action plan. According to OSHA, “the best way” to protect your business and your employees “is to prepare to respond to an emergency before it happens.” Part of that preparation is the drafting of, implementation of, and training your employees about an emergency action plan.

The other part, though, is creating a culture in your workplace to deter violence, or spot potential violence, before it can happen. How can you accomplish this culture?

• Treat employees with respect—while they work for you, during a termination, and even after they are no longer your employees.
• Flag at-risk employees for assistance.
• Offer employee assistance programs for those who need them.
• Involve security personnel and local law enforcement at the first hint that an employee might turn violent.

As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against the kinds of tragedies that we’ve seen lately, these few steps can go a long way to putting you in the best place to deter and respond.

WIRTW #239 (the “has it been a year already” edition)

I have been blessed that the ABA Journal has included me on its list of the top 100 legal blogs (its “Blawg 100”) for the past two year (2011; 2010). As in the past, it is soliciting input on which blawgs to include on its 2012 list. From the ABA Journal:

We’re working on our annual list of the 100 best legal blogs, and we’d like your advice on which blawgs you think we should include.

Use the form to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know which ones. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

There are a few rules to keep in mind if you are inclined to click through and nominate any blogs:

• You can’t nominate your own blawg of any blawg on which you’ve contributed content.
• Wives and husbands cannot nominate their spouses’ blawgs (sorry, honey).
• Employees of law firms cannot nominate blawgs written by their co-workers.
• PR professionals cannot nominate their clients’ blawgs.
• Blawggers cannot enter into any kind of gentlemen’s agreement to nominate each other.

Submissions are being accepted until September 7.

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

Discrimination

• EEOC Background Check Policy is Fair Game — from Nick Fishman’s employeescreenIQ Blog
• 5 Ways to Avoid Caregiver Discrimination Claims — from i-Sight Investigation Software Blog
• When sexual harassment isn’t obvious — from HR Cafe
• Turning the Tables — from Workplace Prof Blog
• When an Employer’s Decisionmaker is Unavailable, What Then? — from Dan Schwartz’s Connecticut Employment Law Blog
• Not So Magical Kingdom: Alleged Discrimination at Disney — from The Proactive Employer Blog
• Got an appearance code? Make sure you allow exceptions for religion — from Robin Shea’s Employment and Labor Insider
• 11th Circuit: Employer's "Wellness" Program Did Not Violate the ADA — from The Personnel Files
• Working from home may be ADA right — from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• Bad Decisions Make for Great Stories — from Jessica Miller-Merrell’s Blogging4Jobs
• $4.5 Million Reasons for Employers and Individuals to Balance Social Media Use & Risks — from Jason Shinn’s Michigan Employment Law Advisor
• Protecting Social Media Information When an Employee Leaves — from SchwabeBlog: Employment Update
• Naked Twister, Orgies, and Facebook — from Phil Miles’s Lawffice Space
• A New Source of Business: TMI — from Michael Fox’s Jottings By An Employer’s Lawyer
• Public Company Use of Social Media — from Augmented Legality
• Most Employers Unlikely To Have a Mobile Device Usage Policy — from EmployerBrief
• Federal Courts Join State Counterparts in Issuing Jury Instructions on Social Media — from Court News Ohio
• 10 Incredibly Simple Things You Should Be Doing To Protect Your Privacy — from Kashmir Hill at Forbes

HR & Employee Relations

• When Should Employers Make Exceptions to Their HR Policies? — from Troutman Sanders HR Law Matters
• Questions to draw out the truth during interviews — from Work Matters
• Gordon Ramsay, A Hotel, and a Hen House — from Molly DiBianca’s Delaware Employment Law Blog
• Top Termination Troubles — from Mark Toth’s Manpower Employment Blawg
• At-Will Employment Is A Big Deal — from California Employment Law
• Class of 2016 – The Same But Different — from Fistful of Talent

Wage & Hour

• A VERY EXPENSIVE Lesson in NOT Following the Rules — from Mike Haberman’s Omega HR Solutions
• When “Casual Conversations” Become FMLA Notice — from Smart HR Manager
• FMLA & ADA: Never the twain shall meet? (Part I) — from Eric Meyer’s The Employer Handbook Blog

Labor Relations

• “First, Do No Harm” – A Call For NLRB and EEOC Guidance — from Lorene Schaefer’s Win-Win HR
• Is Your Employer’s Investigation Gag Order Illegal? Why Investigations Might Not Be Confidential Anymore — from Donna Ballman’s Screw You Guys, I’m Going Home
• Boilerplate Language In NLRB Settlement Agreement Leads To Default Judgment — from Labor Relations Update
• Employer's Email System May Become Tool for Union Organizing — from Employment Law Watch

Counseling as an ADA-protected medical examination

The Americans with Disabilities Act prohibits employers from “requir[ing] a medical examination” or “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability … unless such examination or inquiry is shown to be job-related and consistent with business necessity.” For this reason, an employer can only compel a current employee to undergo a medical examination in limited circumstances, confined by job-relatedness and business necessity.

The scope of what qualifies as a “medical examination” lies at the heart of Kroll v. White Lake Ambulance Authority (6th Cir. 8/22/12) [pdf]. When Emily Kroll, an EMT, showed on-the-job distress over an affair with a married co-worker, which included several outbursts at work, her employer tried to do something about it—compelling her to obtain psychological counseling, on her own terms and with any counselor she wished. Kroll refused, never returned to work, and sued for disability discrimination.

In concluding that counseling qualifies as medical examination under the ADA, the Sixth Circuit principally relied on the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees. That Guidance defines a “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The Court focused on the employer’s intent in requiring the counseling:

[T]he fact that an employer’s intentions are disability neutral does not save from falling within [the ADA]’s purview a test routinely used and administered by psychologists to uncover mental illness….

[W]e conclude that Kroll has presented sufficient evidence such that a reasonable jury could conclude that the “psychological counseling” Kroll was instructed to attend did constitute a “medical examination” under the ADA. We reach this conclusion … because the “psychological counseling” in question was likely to probe and explore whether Kroll suffered from a mental-health disability, regardless of whether this was WLAA’s intention.

The dissenting opinion, however, believes that intent is irrelevant, instead focusing on the issue of who chose the nature and type of the counseling:

By any definition, compelled counseling does not compel a medical examination. As the EEOC guidelines recognize, some “psychological tests” amount to medical examinations, and others do not…. No evidence shows that White Lake Ambulance insisted that Kroll’s psychological counseling involve one type of test or another. No evidence, indeed, shows that the ambulance service insisted she submit to any test while obtaining counseling….

The breadth of services encompassed by a psychological-counseling requirement resolves this claim. For it means that Kroll, not the company, controlled her destiny—controlled in other words whether she sought counseling that included a medical examination or did not. No doubt, she might meet this requirement by seeing a psychologist or psychiatrist who used a medical examination. But, if so, that was her choice, not the company’s. If a trying boss insists that an employee arrive at work by eight o’clock the next morning, it is not the boss’s fault if the employee opts to meet the requirement by staying overnight in the office. So it is here. Kroll had the right to meet this counseling requirement on her own terms, some of which could lead to a medical examination and others of which would not.

While I believe the dissent has the better of the argument, the fact remains that, for now, counseling is a medical examination covered by the ADA. Employers cannot compel employees to undergo counseling unless it is job-related and consistent with business necessity.

Thus, if counseling qualifies as a covered medical exam, then employers, like WLAA, will have to rely on the statute’s defense of job-relatedness and business necessity if an employee needs counseling. What is the best practice for employers going forward? Create of record of job-relatedness and business necessity. If an employee is acting erratically, document the behavior. Take photographs. Obtain statements from co-workers. Explain, in writing, how the employee’s behavior is impacting your business. Otherwise, you will have a difficult time demonstrating that a specific employee’s needs meet the statute’s requirements for a permissible medical examination.

What qualifies as “opposition” under Title VII?

Last week, I discussed the limits of Title VII’s opposition clause in protecting (or not protecting, as the case may be) employees who make unreasonable or unfounded complaints about discrimination. Today, I am going to discuss another aspect of the opposition clause that can also provide some relief to employers — the specificity of one’s opposition to an act of discrimination.

Trujillo v. Henniges Automotive Sealing Systems NA, Inc. (6th Cir. 8/21/12) [pdf] involves two different allegations of protected activity:

1. After the company’s vice president referred to Mexican plant employees as “those fucking wetbacks,” Trujillo lightheartedly confronted him, resulting in an embarrassed apology.

2. After the same vice president made some disparaging remarks about a Latin American employee, Trujillo spoke to the company’s Vice President of Human Resources.

The 6th Circuit concluded that the only the latter constitutes protected opposition:

We have previously held that advocating for members of a protected class is protected activity for purposes of Title VII retaliation…. Trujillo could have engaged in protected activity if he had complained about Rollins’s comment at the time, even though those comments were not directed at Trujillo personally. However, Trujillo’s own testimony makes clear that he did not complain to Rollins about the comments at the time they were made. With regard to the “wetback” comment, Trujillo admits that he did not communicate that Rollins’s comment offended him, let alone that he was complaining about the racial or ethnic character of the conduct….

In contrast, the district court erred in holding that Trujillo’s statement to Gasperut was not in “opposition” to the alleged racial character of Rollins’s comments…. We have repeatedly held that complaints to human resources personnel regarding potential violations of Title VII constitute protected activity for purposes of establishing a prima facie case of retaliation…. The fact that it was, as the district court characterized it, an “informal conversation” does not change the nature and purpose of the conversation, which was a “discrete, identifiable, and purposive” opposition to racially-oriented language….

Part of the takeaway from this case is that not every response to a tinged or biased remark qualifies for Title VII’s anti-retaliation protections. This case, however, also teaches a different lesson. Opposition can rest in the eye of the beholder. The dissent, for example, would have refused to have protected any of Trujillo’s complaints, and would have concluded that he had merely engaged in non-protected venting:

If the plaintiff had complained that such comments constituted discrimination against him, I would have no quarrel with the majority opinion. If plaintiff had in any way intimated that such remarks could constitute discrimination against other people in the company, I would concur. However, plaintiff himself said: “I kind of was just venting. I was not intending for her to take action.” … Not every casual remonstrance against bad language equates to complaining of illegal discrimination.

What is the best practice? Assume all but the most attenuated of responses to a potentially discriminatory statement qualifies as protected, and do not leave it in the hands of judges or juries to draw these nuanced distinctions. And, if you have to take action against someone who has arguable engaged in protected opposition, involve counsel in the decision making before you draw yourself into a potential lawsuit.

The more you know… Determining when a company knows that an employee engaged in protected activity

“The check is in the mail” is one of the world’s oldest (and some would argue lamest) excuses. In Hicks v. SSP America (6th Cir. 8/3/12), the employer tried a variation in an attempt to avoid an employee’s retaliation claim. The employer argued that it was impossible for it have known that the plaintiff had filed an EEOC charge before it fired her because it has lost its mailbox key and therefore it could not have received its copy of the charge. Without debating the merits of the employer’s argument, the court of appeals still concluded that a factual issue existed on the issue of whether the employer knew of the protected activity, and reversed the trial court’s grant of summary judgment. The court relied, in part, on testimony from Hicks’s direct supervisor that he “‘remember[ed] seeing  it’ (apparently meaning he had seen either the notice-of-charge envelope from the Commission or the charge itself).”

This case teaches two important points:

1. Retaliation claims are dangerous. In Hicks, the appellate court affirmed the dismissal of the underlying discrimination claim. Nevertheless, the employer still faces the risk of a trial on the retaliation claim.

2. When crafting a defense, it has to pass the B.S. test. Unsupported defenses that border on the ludicrous (I lost the mailbox key) better have some meat on their bones. Receipts from a locksmith? An affidavit from the mailman that mail was piling up inside the box? Other corroborating witnesses? The less support you can present, the less likely it will be that a judge or a jury will believe your cockamamie story. And, the less likely they are to believe you, the more zeros you can add to the verdict.

Courts inch closer to recognizing sexual orientation as a protected class

The Ohio Bell Telephone Company fired Plaintiff Jason Koren after he missed work for his father’s funeral. Koren suspected that Ohio Bell really fired him because he’s homosexual and took his husband’s last name. He sued for gender discrimination. Did the court: a) grant Ohio Bell’s motion for summary judgment because Title VII does not offer protections for sexual orientation; or b) deny the motion because Title VII does protect against the application of unlawful sex-based stereotypes? Give yourself a prize if you answered “b.”

Here’s what the court had to say in Koren v. The Ohio Bell Telephone Co. (N.D. Ohio 8/14/12) [pdf]:

“[A] plaintiff hoping to succeed on a claim of sex stereotyping [must] show that he fails to act and/or identify with his or her gender, … as all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Koren’s position is that changing his name upon marriage was a nonconforming “behavior” that supports his gender discrimination claim…. Ohio Bell disagrees and attempts to frame Koren’s claims as a simple attempt “to bootstrap protection for sexual orientation into Title VII.” …

The Court agrees with Koren: homosexual males do not “by definition, fail to conform to the traditional gender norms” by changing their surname upon marriage. And here, Koren chose to take his spouse’s surname—a “traditionally” feminine practice—and his co-workers and superiors observed that gender non-conformance when Koren requested to be called by his married name….

Koren has alleged just such a failure to conform. And he says that [manager] Miceli “harbored ill-will” because he changed his name but that she would not have done so if a female employee had changed her name. Koren testified that Miceli refused to call him by his married name, that Miceli went out of her way to call him by his previous last name, and that Miceli informed him that she did not recognize same-sex marriages. And that ill-will, Koren says, resulted in seven unexcused absences and, ultimately, his termination.

Nine out of the last 10 Congresses have tried to pass a version of the Employment Non-Discrimination Act, which among other things, would add “sexual orientation and gender identity” to the list of classes protected under Title VII. It has failed each time. Courts and the EEOC, however, continue to give the LGBT community that which the legislature has rejected.

As for me, I’ll simply repeat the opinion I gave after the EEOC issued its groundbreaking pronouncement on this issue earlier this year:

The time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

WIRTW #238 (the “Doc Hopper” edition)

What does a labor and employment lawyer do to relax on the weekends? If it’s this labor and employment lawyer, and it happens to be the second Sunday in August, the answer is frog jumping (the Valley City Frog Jump Festival, to be precise). Click here for a full recap of my family’s not so stellar, but oh so fun, showing at this year’s event.

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

Discrimination

• Sexual orientation and reverse discrimination — from EmployerLINC
• Harassment complaints by male Homeland Security employees — from Walter Olson’s Overlawyered
• Can a Netflixian Approach to Selection Decisions Eliminate Discrimination? — from Stephanie Thomas’s Proactive Employer Blog
• Employer wins lawsuit despite a "pattern of systematic sexual harassment" — from Eric Meyer’s The Employer Handbook Blog
• Helping Employers Against Employees Who Help Themselves to Company Information to Build a Discrimination Claim — from Jason Shinn’s Michigan Employment Law Advisor
• Discrimination claims by Muslims on the rise — from California Employment Law
• Employment Litigation: How Much Will You Pay? — from Mark Toth’s Manpower Employment Blawg
• Orders to “Go see the Doc” cost Baltimore County $475,000 — from Employment Discrimination Report
• The EEOC Came Knocking (Part Two): Effective Position Statements — from Suzanne Boy’s Southwest Florida HR Law & Solutions
• Virtually All of The Fortune 500 Companies Voluntarily Prohibit Discrimination On The Basis of Sexual Orientation — from Employment Discrimination Report

Social Media & Workplace Technology

• The Business BYO Craze: Has It Gone Too Far? — from hr bartender
• Use Your Email Signatures to Get Overeager Coworkers Off Your Back — from Lifehacker
• Does the Company or the Employee Own a Twitter Account? — from California Employment Law Report
• Social tools for tracking your employees — from Mike VanDervort’s The Human Race Horses
• CFO firing after Chick-fil-A post shows what's protected and what’s not in social media speech — from Phoenix Business Blog
• How to Use Social Media Evidence in Workplace Investigations — from i-Sight Investigation Software Blog

HR & Employee Relations

• “I Would Like To Extend You A Counter-Offer To Suck My Dick”: A Rejected Jobseeker Sends The Padres The Best Letter Ever — from Deadspin
• Separation Agreement or No Separation Agreement? — from Labor & Employment Law Perspectives
• Criminal Convictions and Arrests - To Hire Or Not To Hire? — from From the Sidebar
• Your employer sucks and isn’t going to change — from Ask a Manager
• My Employer Says I Have To Resign. What Should I Do? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Locking Janitors in Wal-Mart - False Imprisonment? — from Phil Miles’s Lawffice Space

Wage & Hour

• The One In Which I Try to Explain the Joint Employer Test — from Dan Schwartz’s Connecticut Employment Law Blog
• FLSA Lessons from Gordon Ramsay — from Molly DiBianca’s Delaware Employment Law Blog
• Can my boss track my hours? — from Suzanne Lucas, the Evil HR Lady, writing at CBS Money Watch
• Tenth Circuit Upholds Salary Basis (and Thus Exempt Status) Despite Deductions From PTO Bank — from Wage and Hour Law Update
• Overtime and Exotic Dancers — from Alabama Employment Law Report
• Federal Judge Severely Limits Scope of Auto-Deduct Collective Action — from Healthcare Employment Counsel
• Beware the loose thread that can unravel the entire garment — from Mike Maslanka’s Work Matters
• Why You Should Know Your Rights Under FMLA — from Workplace Fairness

Labor Relations

• NLRB Taking Aggressive Legal Positions in Attempt to Remain Relevant — from Russell Cawyer’s Texas Employment Law Update
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Does the Golden Rule Violate Section 7 of the NLRA? — from Labor Relations Institute
• NLRB Sets Sights on “At-Will” Provisions — from Hiring & Firing
• Free Speech is not Protected at Work but Some things you say may be. — from Mike Haberman’s Omega HR Solutions

Piercing the bulletproof employee

Retaliation comes in two flavors: participation and opposition. The former protects employees who have “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under” the relevant statute; the latter protects employees who have “opposed any practice made an unlawful employment practice.” Jackson v. Board of Education of Memphis City Schools (6th Cir. 8/15/12) [pdf] answers the question of how far the opposition clause goes to protect employees who make unreasonable or unfounded complaints about discrimination. It also teaches an important lesson that not every employee who complains about discrimination is bulletproof.

The Memphis City Schools employed Janice Jackson (African-American), as a teacher’s assistant. She worked at a school run by an African-American principal. Ninety-seven percent of the school’s staff was African-American, including 29 of the school’s 31 teacher’s assistants. After being admonished by the principal for unprofessional behavior, Jackson delivered a personal letter, in which she indicated that she felt unfairly singled out because her White co-workers were allowed “duty[-]free breaks,” while African-Americans were “criticized for taking breaks”—“a clear violation of the Civil Rights Act of 1964.” After her transfer to a different school, she sued, claiming retaliation.

The court of appeals affirmed the trial court’s dismissal of her retaliation claim. The court noted that to support a claim of retaliation under the opposition clause, an employee’s opposition must “be based on a reasonable and good faith belief that the opposed practices were unlawful.” In this case, Jackson did not come forward with any evidence that the school principal treated African-American employees differently than White employees. Instead, the court concluded that she was merely addressing a legitimate personnel issue raised by Jackson’s unprofessional behavior.

Critically, the court went out of its way to point out that employers do not always need to fear taking action when faced with a poor-performing employee who happens to complain about discrimination.

To hold that opposition is reasonable when the employer is addressing an apparent and legitimate personnel matter in a way that does not explicitly or implicitly implicate Title VII, with no other testimony or evidence of racial discrimination, would hamper an employer’s ability to address legitimate issues for fear that doing so could leave the employer vulnerable to liability under Title VII.

Many employees believe they can make themselves bulletproof merely by raising the specter of discrimination. They wrongly believe that the anti-retaliation statutes will automatically protect their jobs. Conversely, many employers have a paralyzing fear of terminating a complaining employee no matter the circumstances. Jackson demonstrates that both of these fear can be unfounded. The potential of a retaliation claim certainly ups the ante when terminating an employee who has complained about discrimination. Yet, in the right circumstances and for the right reasons, employers do not need to live in fear of firing a deserving employee, provided that they take the right steps and have the proper documentation.

The language of the modern workplace

Merriam-Webster's Collegiate® Dictionary just released its list of new words for 2012. Three caught my eye.

According to the publisher, Merriam-Webster adopts new words based on usage:

To decide which words to include in the dictionary and to determine what they mean, Merriam-Webster editors study the language as it's used. They carefully monitor which words people use most often and how they use them….

To be included in a Merriam-Webster dictionary, a word must be used in a substantial number of citations that come from a wide range of publications over a considerable period of time. Specifically, the word must have enough citations to allow accurate judgments about its establishment, currency, and meaning.

Because these words have crept into the American lexicon, they should be accounted for in your workplace policies. Technology policies should cover information stored in and accessed from the cloud. Harassment policies and training should teach employees about the dangers of texting and other co-worker communications via mobile phones, email, and social media. And, if you get into a hot legal mess because you omitted these ideas from your policies, drop a few f-bombs (then call your lawyer).

Don’t forget these 5 security issues in your BYOD policy

BYOD might be the corporate buzz word for 2012. If you’re in the dark, BYOD stands for Bring Your Own Device. It represents employees connecting their own mobile devices to corporate networks, instead of using employer-issued devices. There was a time, not all that long ago, when Blackberry was the mobile device of corporate America. Once iOS and Android started supporting email via Exchange, however, executives started questioning why they needed to carry a work device and a personal device. In short, they wanted their email and Angry Birds wrapped up in one tidy mobile package. Thus, the birth of BYOD. Today, Blackberry is going they way of Betamax, and BYOD is here to stay. I call the iPhone-ification of corporate America.

BYOD, however, is not without its risks. Over at The HR Capitalist, Kris Dunn offers the following sample BYOD Policy (c/o Scott Stone):

We expect each team member to provide their own device – you select it, you buy it, you pick the plan that makes the most sense for you.  Your phone, your phone number, your provider of choice, your contract with the provider

We strongly recommend a “Smartphone” of some type, to ensure you can receive emails or other critical communications on the device.

Our Company will provide you access to your work email address on the device, including assisting you with the setup.

If your device is a “Smartphone”, our company will reimburse you $75 per month to cover all work related communications on the device (email, text, voice, communications, etc).  We expect you to select a plan which can accommodate your business and personal needs for voice and data

If you select a PO Phone (plain ‘ol phone) which lacks the ability to receive and send emails, our company will reimburse you $15 per month for all work related communications

We won’t provide a “company phone” to anyone, preferring to allow you to “BYOD”, and provide everyone maximum flexibility.

If you ever choose to leave the company, take your phone, your number, and your existing agreement with a provider – no hassle, no number change, no problem.

These seven points have one glaring omission—security. The biggest risk that BYOD creates is the seemingly uncontrolled access to your network, both in terms of what information is accessed and take from it, and what happens to that information if a device is lost or stolen. In light of these security risks, any BYOD program should answer the following 5 questions:

1. What devices are permitted? Does BYOD mean any device, or does it simply mean iPhones or Androids? What about iPads or other tablets? Employee-owned laptops? Stick drives and other portable memory?

2. Are you going to mandate passwords or other security-screens on network-connected devices? Employees generally resist having to enter a four-digit pin code every time they turn on their iPhones. Your IT, legal, and risk management departments, however, should require them, since they make it that much harder for someone to access data on a lost or stolen device. If your organization deals in confidential information (e.g., doctors, lawyers, etc.), this requirement is that much more important (and might be mandated by law). Also, your BYOD policy should reference any other policies that address the handling of confidential and proprietary information.

3. What happens when a device is lost or stolen? IT must have the ability to remote-wipe a missing mobile device. Guess what happens, though, if an employee’s first call upon losing a phone is to their mobile carrier? The carrier turns off the device, and your organization loses the ability to remote wipe any data from it. Employees should be told that if they lose a mobile device, their first call should be to IT so that the device can be wiped of any corporate data.

4. Will you ban jailbreaks, roots, and other hacks? These practices void the phone’s warranty. Also, consider banning the installation of apps other than from the official iTunes App Store or Google Play. It will limit the risk of the installation of viruses, malware, and other malicious code on the devices.

5. What happens when an employee leaves? You should not only address what happens with the physical device, but also what happens with the data that lives on the device. You need a protocol to re-acquire or wipe all corporate information on the device. Otherwise, you are putting your confidentiality at risk.

Any successful BYOD program results from a synergy among the C-suite, legal, IT, HR, and risk management. Involve all of these departments to make sure that your BYOD program is successful, and addresses all necessary security issues.

Confidential workplace investigations are under attack … by the EEOC?

Earlier this month, I took the NLRB to task for its holding in Banner Estrella Medical Center that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. Lorene Schaefer, writing at One Mediation, brings us news that the EEOC has joined the fray and is also attacking the confidentiality of workplace investigations.

According to Ms. Schaefer, the EEOC’s Buffalo, NY, office has notified an employer of an investigation of its policy of warning employees not to discuss harassment investigations with co-workers:

You have admitted to having a written policy which warns all employees who participate in one of your internal investigations of harassment that they could be subject to discipline or discharge for discussing “the matter,” apparently with anyone.

EEOC guidance states that complaining to anyone, including high management, union officials, other employees, newspapers, etc. about discrimination is protected opposition. It also states that the most flagrant infringement of the rights that are conferred on an individual by Title VII’s retaliation provisions is the denial of the right to oppose discrimination. So, discussing one’s complaints of sexual harassment with others is protected opposition. An employer who tries to stop an employee from talking with others about alleged discrimination is violating Title VII rights, and the violation is “flagrant” not trivial.

I’m speechless. Confidentiality is a cornerstone of any thorough and meaningful internal investigation. As one of my readers astutely stated in a comment to my post about the NLRB’s attack on confidentiality:

Permitting folks to talk about the investigation impacts the investigator’s strategy, possible spoliation of evidence by witnesses who now know about the investigation when under normal circumstances we would have at best a pretty good chance of keeping the investigation confidential, interfering with work relationships the more and more people talk about the investigation, the more things become both diluted and exaggerated (remember the game of telephone?), it is so much more than just the word “Confidential.”

The EEOC is supposed to prevent workplace discrimination and harassment. How can it possibly take issue with a key component of the crucial tool employers use to weed out unlawful harassment? This position simply does not make any sense. The EEOC should be championing confidential investigations, not signaling that they constitute a “flagrant” violation of Title VII. Prohibiting employers from keeping workplace investigations confidential will render investigations meaningless. I do not think this is a result the EEOC wants to foster.

WIRTW #237 (the “don’t judge a book by its cover” edition)

One of my earliest law school memories did not occur inside the lecture halls, but instead was a passing meeting in the hallway. I recall noticing a classmate’s turban, beard, and dark complexion, and thinking, “terrorist.” Soon thereafter, when Amardeep Singh and I became good friends, I learned he was a Sikh (and definitely not a terrorist). My initial reaction to seeing Amar for the first time embarrasses me to this day.

When I heard the news on Sunday about the tragedy in Wisconsin, I immediately thought of my old friend, who, after law school, co-founded the Sikh Coalition and currently serves as its National Director of Programs. Earlier this week, The Guardian ran a poignant piece written by Amar, entitled The post 9/11 prejudice that menaces American Sikhs. This is part of what he said:

Fed a steady diet of Bin Laden and Taliban images, most Americans simply associate the turban, which Sikh men wear as an expression of faith, with terrorism. Turban equals terrorist in the minds of too many.

In part, Sikh Americans are collateral damage of a modern climate that rarely has time for explanations of our culture, our heritage, and our beliefs. This enduring legacy of 9/11 continues to stubbornly attach itself to our community. Not only do many people not know of the peaceful beliefs of our faith, but they wrongly associate us with acts of unspeakable terrorism….

We all deserve to live in a society where no one need fear violent attack—whether at a temple, mosque, synagogue or church—simply because of our ethnic and religious identity.

As a society (especially one that calls itself a melting pot), we should not need an excuse to confront our own biases and prejudices. This awful catastrophe reminds us that we should view people as people, and not as colors, religions, or stereotypes.

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

Discrimination

• Facebooking about "naked Twister" may doom one's sexual harassment claims — from Eric Meyer’s The Employer Handbook Blog
• Some Employers Health Plans Deny Pregnancy Coverage For Dependents — from TLNT
• Three New High-Visibility Lawsuits—Seven Types of Alleged Discrimination — from Employment Discrimination Report
• Construction worker too “manly” to win same‑sex harassment claim — from EmployerLINC
• “Court Revives Discrimination Lawsuit against … the EEOC” — from Walter Olson’s Overlawyered
• When the EEOC Goes Too Far--Part II — from Molly DiBianca’s Delaware Employment Law Blog
• Can I Be Fired for Being Gay? — from Jessica Miller-Merrell’s Blogging4Jobs
• Getting ADA accommodations right from the very beginning — from HR Cafe
• Chick Fil-A and the Trickle Down Effect — from Tim Eavenson’s Current Employment
• The EEOC Came Knocking (Part One): What Should I Do? — from Suzanne Boy’s Southwest Florida HR Law & Solutions

Social Media & Workplace Technology

• Will the Chick-fil-A YouTube firing pass legal muster? — from Robin Shea’s Employment and Labor Insider
• Facebook says 'Likes' fall under free speech, supports sheriff fired over political controversy — from The Verge
• Chris Rock: Social Media Disasters Only Matter If Your Fans Care — from Kashmir Hill’s The Not-So Private Parts
• Facebook And Twitter Subpoenas, Privacy And The Law — from From the Sidebar

HR & Employee Relations

• HR’s Same-Sex Marriage Policy — from Tim Sackett at Fistful of Talent
• “Ascent of the A-Word” — from Bob Sutton
• I don’t talk about my sex life at work — from Mike VanDervort’s The Human Race Horses
• Forced to resign: What are your options? — from Evil HR Lady, Suzanne Lucas
• Mergers & Acquisitions: Don't Forget About Employee Compliance with Nondisclosure Agreements — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• It Will Cost Me How Much? A Story of Misclassification and Improper Deductions — from Mike Haberman’s Omega HR Solutions
• Third Circuit Defines “Joint Employment” Under FLSA — from Phil Miles’s Lawffice Space
• What Is the Minimum Value of Work? — from Jim Brennan at Compensation Cafe
• Fourth Circuit: CEO's Administrative Assistant Properly Classified As An Exempt Administrative Employee — from Wage and Hour Law Update
• Litigation Over Unpaid Internships Under the FLSA Heats Up — from Workplace Prof Blog
• Employers Violating Overtime Laws On The Rise — from Overtime Lawyer Blog
• Seventh, Third Circuits Reach Opposite Conclusions in FMLA Cases — from Joe’s HR and Benefits Blog

Labor Relations

• Employers must be able to recognize a Weingarten request in order to avoid liability under the NLRA — from Employment Law Matters
• NLRB Decision Complicates Investigations in the Workplace — from Labor Relations Update

Richard Kimble and the ADA

Lt. Philip Gerard: Why don’t you stop running and turn yourself in, Kimble?

Dr. Richard Kimble: There’s a man I have to find. A one-armed man. When I find him, I’ll turn myself in.

Lt. Philip Gerard: Still sticking to that same tall tale? “A one-armed man killed my wife.” The truth is … you’re guilty not only in my eyes, but in the eyes of the law.

– The Fugitive (1965).

In Rosebrough v. Buckeye Valley High Sch. (6th Cir. 8/8/12) [pdf], the 6th Circuit concluded that an individual born without a hand was qualified under the ADA to work as a bus driver trainee.

Here are the facts. Tammy Rosebrough, born without a left hand, applied for cook’s position at Buckeye Valley North High School. During the interview process, a supervisor told her that if she was interested in a position the school was in desperate need of bus drivers. Rosebrough applied for the bus driver job. The Ohio Department of Education requires a waiver before an individual missing a limb is allowed to operate a school bus, for which Rosebrough also applied. While she was waiting to receive her waiver, the school district began Rosebrough’s training. Perceiving bias against her because of her missing hand, Rosebrough never finished her training, and ultimately sued for disability discrimination.

The Court never reached the issue of whether the school district discriminated against Rosebrough on the basis of her disability. Instead, it reversed the trial court’s determination that she was not “qualified” to work as a bus driver trainee, and remanded the case to be decided on the remaining issues.

The plain language of the ADA covers discrimination on the basis of disability during job training…. The statutory inclusion of “job training” protects individuals while they receive the training required to perform the essential functions of their ultimate job position; it protects them from discrimination that could deny them the means to obtain qualifications necessary to undertake that position. It cannot be disputed that the ADA covers individuals in training without regard to whether they are called employees, conditionally-hired employees, trainees, or a title specific to one employer.

When the events at issue in this litigation occurred, Rosebrough was in the job training period necessary to obtain her CDL and learn how to perform as a school bus driver…. It is unnecessary to speculate as to whether she was “otherwise qualified” for the training position because Buckeye Valley concedes Rosebrough “was qualified to be a ‘trainee,’ was in fact a ‘trainee,’ and was given the training.”

In other words, the Court did not permit the school district to argue that Rosebrough wasn’t qualified to work as a bus driver training because it permitted her to train for the position.

The odds are slim that you will have a one-armed applicant seeking to drive one of your commercial vehicles. Yet, the lesson from Rosebrough is much broader. Allowing an employee to work in a position makes it difficult to argue later that the employee was not qualified for that same position.

Do your agreements provide for waivers of collective actions?

Earlier this year, KeHE Distributors underwent a reduction in force. It offered a retention bonus to any sales representatives who would continue their employment for a period of time, as long as they signed a Separation and Release Agreement. Each Agreement contained a “General Release of Claims and Covenant Not to Sue,” which included a promise not to join “any class or collective action” against KeHE arising under the FLSA or other federal laws. 69 employees accepted the retention bonus and signed the agreement. Within weeks, two employees launched collective actions under the FLSA claiming that KeHE unlawfully denied them overtime compensation. In Killion v. KeHE Distribubtor (N.D. Ohio 8/3/12) [pdf] the Court dismissed from the lawsuit any employees who had signed the Agreement.

The plaintiffs argued that because of the relatively small amount of money at stake in any individual wage and hour claim, preventing employees from joining collective actions would gut their substantive rights under the statute. The court, however, disagreed:

This Court recognizes that the ability to form a collective action necessarily implicates policy considerations regarding the enforcement of the FLSA. Because the amount of money at stake may be small, the right to join a larger pool of similarly situated individuals enables the pool to attract counsel who, if victorious, is entitled to recover fees….

Here, this Court has no idea how much money is at stake…. Nor does the record disclose how many potential Plaintiffs would comprise the collective action, whether Plaintiffs can afford to pursue their claims individually, or how much it would actually cost them to pursue individual claims. Moreover, attorneys’ fees are mandatory…, which means individual Plaintiffs will still be able to vindicate their rights under the FLSA….

The statute permits a collective action, but it does not require one…. Section 216(b) is clear: Plaintiffs may proceed collectively, not shall. By signing the Agreement they waived that right.

Simple enough, right? An employee is permitted to waive his or her right to file or join a collective action under the FLSA. Killion involved a separate agreement signed as part of a reduction in force. This rule, however, is not limited to post-employment covenants. The same rationale would apply to employment agreements, or other pre-employment documents such as employment applications, offer letters, or other documents signed by an employee incidental to his or her employment.

Of course, Killion is but one opinion of one district court, and this issue is unsettled enough to warrant some cautious deliberation. Before embarking on a campaign to require that your employees sign away their participation in collective actions, you might want to wait for the 6th Circuit to have its say on the issue.

Telecommuting as a reasonable accommodation

More than two years ago, I hypothesized that the breadth of the ADA’s 2009 amendments would likely cover fringe medical conditions such as chemical sensitivities. I wrote:

The ADA amendments are intended to make it much easier for individuals to demonstrate that they meet the definition of “disability.” To have a disability, an individual must be “substantially limited” in performing a “major life activity” as compared to most people in the general population. An impairment need not prevent, or even significantly or severely restrict, the individual’s performance of a major life activity…. Major life activities include daily functions, as well as the operation of major bodily functions (which would include, for example, the respiratory system).If an employee has a chemical sensitivity to certain smells, that allergy will likely substantially affect the employee’s respiratory system, thus rendering the employee “disabled” under the ADA.

Core v. Champaign County Board of County Commissioners (S.D. Ohio 7/30/12) [pdf], confirms my prediction. In that case, an Ohio federal court ruled that an employee sufficiently pleaded a claim for disability discrimination under the ADA based on an alleged sensitivity to perfume. The plaintiff, Pamela Core, claims that her employer failed to accommodate her chemical sensitivity to certain perfumes worn by her co-workers. She had asked that her employer ban certain scents in the workplace. When it ignored her requests, she asked to be allowed to work from home as an accommodation, which the employer rejected.

The issue of whether a sensitivity to perfume qualifies as a disability protected by the ADA only begs this question—what is the appropriate accommodation for this disability? The court in Core concluded that telecommuting may be a reasonable accommodation in this case:

With regard to the assertion that working from home is an unreasonable accommodation as a matter of law, such blanket assertion is not necessarily supported by Sixth Circuit precedent. Certainly, the Sixth Circuit has agreed with the general proposition that an employer is not required “to allow disabled workers to work at home[;]” however, the court also recognizes the possibility of exceptions to the general rule “in the unusual case where an employee can effectively perform all work-related duties at home[.]”

Certainly, communications technology has advanced to such a state that the proposition of employees working from home is not quite as burdensome or untenable…. Today, in this Court’s view, it may not “take a very extraordinary case for the employee to be able to create a triable issue of the employer’s failure to allow the employee to work at home.” Nevertheless, the ultimate determination of reasonableness is a fact specific inquiry and a question for the fact-finder.

The Court did not go as far to conclude that telecommuting is a proper reasonable accommodation in this or any other case, but instead ruled that a jury should decide the reasonableness of the accommodation in this case.

Some employers, rightly or wrongly, believe that employees need to be present in the workplace to effectively perform their jobs. If you fall on this side of the debate, what steps can you take to safeguard against a court second-guessing your decision to deny a telecommuting request as a reasonable accommodation?

1. Prepare job descriptions that detail the need for time spent in the office.
2. Document the cost of establishing and monitoring an effective telecommuting program.
3. Engage in a dialogue with disabled employees to agree upon an alternative accommodation with which both sides can live.

The appropriateness of telecommuting as a reasonable accommodation will vary from case to case. As Core points out, telecommuting as a reasonable accommodation remains the exception, not the rule. The line that separates exception from rule, however, will continue to shift as technology makes telecommuting more feasible, widespread, and accepted.

[Hat tip: Employer Law Report]