Do your employees know what “loyalty” means?

In almost all states (Ohio included) all employees owe their employer a “duty of loyalty,” which, in the words of one court, means “a duty to act in the utmost good faith and loyalty toward his [or her] employer.” According to another court, “[A]n … employee is prohibited from acting in a manner inconsistent with his … employment and is bound to exercise the utmost good faith and loyalty in performance of his obligations.” Examples of employee misconduct that courts have found to be in breach of this duty of loyalty include acting in competition against one’s employer, giving away company property, using company funds as one’s own, taking bribes or kickbacks, and reaping secret profits.

A story I read yesterday serves as a good reminder that employees owe a responsibility to those who sign their paychecks not only to avoid breaches of this duty of loyalty, but also to avoid placing themselves in circumstances that could call their loyalty into question. While appearing on a local sports radio station yesterday, Philadelphia Eagles running back LeSean McCoy said the following about the replacement referees working in place of the locked-out regular officials: “One of the refs was talking about his fantasy team, like ‘McCoy, come on, I need you for my fantasy.’”

It is highly doubtful, even laughable, that an NFL referee would change a call to help his fantasy football team. Yet, this official exercised very poor judgment in cracking this joke. Employees must avoid even the appearance of a breach of their loyalty to their employer. Should this official lose his job or suffer some other discipline for this lapse in judgment? Probably not. Should the NFL talk to him and remind him of the importance of these issues? Absolutely.

Do your employees understand this issue? When you conduct training of your employees, you might want to consider tossing a discussion of these concepts into the materials.

No call, no show, no FMLA

Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer’s attendance policies. According to section 825.302(d) the FMLA’s regulations:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer’s policy to contact a specific individual…. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

This means that if you have a policy requiring employees to call-in if they are going to be late or absent, you can enforce that policy to the detriment of a non-compliant employee taking FLMA leave.

For example, in Ritenour v. Tenn. Dep’t of Human Servs. (6th Cir. 8/29/12), the employee, who mistakenly believed she had been approved for intermittent FMLA to care for her mentally ill son, did not comply with employer’s job abandonment or absenteeism policies, which required the employee to provide appropriate notice to avoid the accrual of unexcused absences. Because the employer terminated Ritenour because of her violation of the policy, her FMLA claims failed:

Even assuming that Ritenour was entitled to take FMLA leave and that TDHS interfered with Ritenour’s FMLA rights, TDHS has provided a legitimate reason for Ritenour’s dismissal that is not related to her request for FMLA leave—because Ritenour did not call in, in violation of the job abandonment policy….

Ritenour knew that the absenteeism policy required that absent employees call-in their absences in order to give their supervisor appropriate notice to make alternative work assignment arrangements. TDHS’s job abandonment policy applies to all employees who are absent from duty without approval. The enforcement of that policy against Ritenour was not related to Ritenour’s request for FMLA leave because the policy applies to employees who are absent from work without approval for any reason.

While it sometimes seems as if employees hold all the high cards in the FMLA poker game, as Ritenour makes clear, employers are within their rights to enforce neutral attendance policies against employees who fail to follow their rules. Now, go check your policies to make sure they contain these types of notice and call-in rules.

NLRB continues to attack facially neutral employment policies

The NLRB continues its assault on garden-variety employment policies, issuing three decisions over the last 10 days, each of which concluded that facially neutral employment policies violated employees’ rights to engage in protected concerted activity. The cases are Flex Frac Logistics, LLC [pdf], TT&W Farm Products, Inc. [pdf], and Costco Wholesale Corp. [pdf].

To place this issue within a legal context (and for the uninitiated), the National Labor Relations Act grants all private-sector employees (union and non-union) the absolute right to engage in protected concerted activity, which includes, among other things, the right to discuss, between and among themselves, their wages, hours, benefits, and other terms and conditions of their employment. An employer cannot maintain a work rule that reasonably tends to chill employees in the exercise of that right.

The NLRB used this doctrine to invalidate the following neutral work rules:

• A rule prohibiting employees from using the employer’s electronic systems to “defame any individual or damage any person’s reputation.”
• A rule prohibiting employees from going AWOL during their shifts, either by walking off the job, or leaving company premises, without management permission.
• A confidentiality policy which defines “confidential information” to include “personnel information and documents.”

Perhaps most telling is the Board’s explanation, in Costco, of its decision invalidating a rule against defamatory language:

In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications…. [T]he Respondent’s rule does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to—among other things—certain protected concerted activities, such as communications that are critical of the Respondent’s treatment of its employees.

In her analysis of the Costco decision, Molly DiBianca hit the nail on head insofar as the dangerous course charted by the NLRB:

If there’s one thing I’d give the NLRB, it’s consistency. If a workplace rule attempts to regulate employees’ online activities, it’s a safe bet that the Board is going to be skeptical of it, at the least. Even if the rule prohibits employees from harming their employer, the Board may find it to violate the NLRA. Harm away, employee. Harm away.

Under the guise of “protected concerted activity,” the NLRB is making it next to impossible for employers to maintain any work rules that regulate what employees cannot say or do. If I apply a tortured interpretation to any work rule, I can reach some far-fetched conclusion that it could deter employees from engaging in protected concerted activity. The NLRA only is supposed to concern itself with work rules that reasonably tends to chill employees. Yet, these tortured interpretations go well beyond the realm of what is reasonable.

Employers, I wish I could whisk up a magical elixir to solve this problem. Alas, at least for the time being, we are stuck with the NLRB’s intrusiveness into the world of work rules, and the grave uncertainty that comes along for the ride.

WIRTW #242 (the “on the road again” edition)

On Monday, I’ll be in Dayton, Ohio, at the LexisNexis campus, recording two video CLEs for its corporate legal curriculum:

• It’s Five O’Clock; Do You Know What Your Employees are Saying About You? — discussing my favorite topic, social media in the workplace
• Legal Issues in Labor and Employment: Leaves of Absence — discussing the various laws the require employers to grant leaves of absence to employees (FMLA, ADA, USERRA, and Title VII)

I will share clips with you after Lexis provides them to me. I’m also coming home with a cool video biography that I’ll be adding to the “About Me” section above.

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

Discrimination

• The EEOC Strategic Enforcement Plan Infographic — from Stephanie R. Thomas’s The Proactive Employer Blog
• Wal-Mart Settles EEOC Lawsuit on Refusal to Return Employee to Work Without Full Release — from Employer's Law Blog
• Another Case Involving Associational Discrimination and Employee Caregivers — from Employment Discrimination Report
• Rising Caregiver Responsibilities Fuel Push for Extra Worker Protections — from Dan Cafaro at Smart HR Manager

Social Media & Workplace Technology

• Five Years Later, The Biggest Impact on Employment Law Is… — from Dan Schwartz’s Connecticut Employment Law Blog
• Infographic: The biggest reason employees waste time at work — from Ragan.com
• More than half of all mobile subscribers in the U.S. own a smartphone — from Boy Genius Report
• Help - My employee spends all their time playing Fantasy Football — from Rob Radcliff’s Smooth Transitions
• Do You Know Who is Using Your Email at Work? — from Blogging4Jobs
• Employee privacy: How to avoid invading it — from HR Cafe
• Everything’s amazing, nothing’s perfect: exploring the limits of consumer technology — from The Verge

HR & Employee Relations

• Are Pretty People Better Employees? — from Fistful of Talent
• Civility in the Workplace: Can We Remember the Lessons from 9/11? — from TLNT
• Effort in harassment investigations is IMPORTANT — from Mike Haberman’s Omega HR Solutions
• Your employees’ freedom of speech — from WorkFace
• How to Work with Legal — from HR Examiner
• One word on political discussions at work: Shhh — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Is “casual conversation” of a parent's health enough to trigger FMLA? — from The Employer Handbook Blog
• Intermittent Leave—Handling Nine Tricky Aspects — from HR Daily Advisor
• The Rise of the New Contract Worker — from Harvard Business Review

Labor Relations

• Sticks ‘n Stones May Break Your Bones, But Workers Can Defame You — from Molly DiBianca’s Delaware Employment Law Blog
• Lookout Corner – unions@yourcompany.com? — from HR idiot
• “NLRB Goes Back to the ‘80s To Justify A Union-Notice Rule” — from Walter Olson’s Overlawyered

The 5 little words that will cause your company a huge headache

“Tell me how you’re paid.” The biggest wage and hour case I ever defended started with those five little words. A very disgruntled, and justifiably fired, ex-employee went to see a plaintiff’s employment lawyer about filing a wrongful discharge lawsuit. The lawyer correctly told him that that he had no case over his termination. Then, the lawyer uttered those five words. And, we were off to the races in a multi-million dollar wage and hour derby.

I was reminded of this story by a post I read earlier this week on EmployerLINC, entitled, Trolling for employees to sue their employers. The reality is that while discrimination cases remain the bread-and-butter of the plaintiffs’ bar, every plaintiff-side employment lawyer worth his or her salt is on the lookout for the huge payday of a juicy wage and hour class or collective action. While the Supreme Court has taken away some of their luster, the wage and hour class action remains the holy grail of cases.

I can almost guarantee that if one of your employees sits down with a lawyer to talk about filing a claim against your company, part of that lawyer’s intake will be asking the question, “Tell me how you’re paid.”

My opinion on this issue hasn’t changed since I first gave it almost five ago:

The question is not whether companies need to audit their workforces for wage and hour compliance, but whether they properly prioritize doing so before someone calls them on it. According to the BusinessWeek article: “While violations appear widespread, employees themselves rarely think to make wage and hour claims. Instead, they usually have it suggested to them by lawyers.”

It is immeasurably less expensive to get out in front of a potential problem and audit on the front-end instead of settling a claim on the back-end. The time for companies to get their hands around these confusing issues is now, not when employees or their representatives start asking the difficult questions about how employees are classified and who is paid what.

Criminal background checks remain on the EEOC’s radar

Four months ago, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. That Guidance prohibits employers from implementing broad-based blanket exclusions on any individuals with an arrest or criminal history. Instead, it provides that the consideration of criminal convictions requires a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.

Last week, the EEOC issued its Draft Strategic Plan for Fiscal Years 2012 – 2016, which provides that the identification, investigation, and litigation of systemic discrimination cases—pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area—is a top strategic priority for the agency.

On Monday, these two issues came together. The Nashville Business Journal [hat tip: employeescreenIQ Blog] reported that the EEOC will likely filing a lawsuit against Dollar General Corp., challenging that its criminal background check policy has a “disparate impact” on black job candidates and employees. Apparently, Dollar General Corp.’s policy “excludes from employment individuals with certain criminal convictions for specified periods.” This lawsuit comes on the heels of a $3.13 million settlement paid earlier this year by Pepsi to settle litigation with the EEOC over hiring policies that excluded anyone who had been arrested pending prosecution.

Needless to say, the EEOC continues to take a long, hard look at hiring practices—such as the use of arrest and conviction records—because of their potential adverse impact against African Americans and Hispanics. If you are considering using arrest or conviction records to aid in your hiring decisions, do not do so without a reason connecting the offense to the job, and without the input of employment counsel versed on these issues.

[photo credit: brizzle born and bred via photo pin cc]

Testing employees for legally prescribes medications must be done carefully

A recent settlement announced by the EEOC points out the risks that exist if you include lawfully prescribed medications in your drug testing programs.

According to the EEOC’s lawsuit, Dura Automotive Systems drug-tested all of its Lawrenceburg, Tennessee, plant employees in May 2007 for 12 substances—five that were illegal controlled substances, and seven that were legal medications lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose their underlying medical conditions, made it a condition of employment that the employees cease taking their prescription medications, and either suspended employees until they stopped taking the medications or fired those who were unable to perform their job duties without the benefit of their medications. For these transgressions, Dura will fund a $750,000 settlement.

You might be thinking to yourselves, “I have read lots of medicine bottles that caution against operating motor vehicles or heavy machinery. Why can’t I take steps to guarantee my employees’ safety against these dangers?” The answer is that you can, but only in limited circumstances defined by the ADA.

Asking questions about whether an employee currently is taking, or has taken, any prescription drugs or medications, or monitoring an employee’s taking of such drugs or medications is a “disability related inquiry” under the ADA. Testing for whether an employee currently is taking any prescription drugs or medications is a medical examination under the ADA. Disability-related inquiries and medical examinations made during employment must be job-related and consistent with business necessity. Thus, an employer can only inquire about an employee’s prescription medications under these limited circumstances.

In the words of the EEOC:

May an employer ask all employees what prescription medications they are taking?

Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat.

For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In the Dura Automotive case, the employer tested all of its employees for prescription medications, regardless of their job duties. This across-the-board testing runs afoul of the ADA. If you have safety-sensitive positions, in which employees will pose a direct threat by performing their essential job functions while impaired, then you may be able to test those employees for legally-prescribed medications. These issues, however, are highly sensitive, and employers must tread carefully to avoid violating the ADA.

Transfer preferences to vacant positions as an ADA reasonable accommodation continue to baffle courts

A disabled employee comes to you and asks for a transfer to an open and available position as a reasonable accommodation? Do you grant the request? For the time being, there is no clear answer to this difficult question.

The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. Courts have struggled, however, in deciding whether disabled employees are entitled to a transfer preference over more qualified, non-disabled co-workers. Five years ago, employers thought they were going to receive some clarity on this tricky issue, when the Supreme Court agreed to hear Huber v. Wal-Mart Stores. When Huber settled before the Supremes could have their say, the issue remained in limbo. Last week, in EEOC v. United Airlines [pdf], the 7th Circuit issued the latest pronounced by a federal appellate court on this issue, and its holding is diametrically opposed to Huber.

Huber held that an employer can hire the most qualified person for a position, even if means passing over a less qualified, disabled employee who requested a transfer to the vacant position as a reasonable accommodation. United Airlines, however, concluded that the ADA requires employers to provide a preference to the disabled employee, and pass over a more qualified individual in favor of providing the vacant position as a reasonable accommodation. In other words, this issue is more muddled and unsettled than ever, and remains ripe for clarification from the Supreme Court.

Going forward, employers are left with the following two very different options:

• Hire the most qualified person and deny the open position to a less qualified disabled employee.

– or –

• Automatically award an open position to a qualified disabled employee, if even a better qualified applicant is available and despite an policy to hire the best person for the job.

Employers must act cautiously if faced with this thorny issue. The answer, for now, will vary depending on the federal circuit in which your business operates. My advice from nearly five years ago rings as true today as it did then:

When you don’t hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA.

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