WIRTW #259 (the “luddite” edition)

Mozy recently published a list of the 50 Things We Don’t Do Anymore Because of Technological Advancements. It’s weird to think that my kids will never use an encyclopedia to write a last-minute term paper, scour the ground for payphone change because they forget to leave the house with a trusty dime, or dial *69 to figure out which of their friends is pranking us.

Scanning the list, though, I’m proud to say that I’m still a luddite in some key areas:

• Print photographs
• Go into the bank to conduct business
• Remember phone numbers
• Watch DVDs
• Fax documents
• Have a CD collection
• Watch TV shows at the time they are shown
• Try on shoes at the mall
• Buy flowers at a florist
• Buy newspapers

By my count, I’m 20 percent luddite. How do you rank?

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

Discrimination

• Jujitsu in EEOC v. Kaplan — from LaborRelated (and congrats on your new edition)
• The EEOC’s top three of 2012: retaliation, discrimination, and harassment — from Warren & Associates Blog
• 5 Things You Need To Know About Retaliation — from Employment Discrimination Report
• When single employees are “discriminated” against — from Employment Law Bits
• The EEOC on Transgender Employees and Sex Discrimination — from Workplace Prof Blog
• Gender Inequality Claims Make Headlines in Case and in New Study — from Dan Schwartz’s Connecticut Employment Law Blog
• 3d Cir. Issues a Bitchin' Constructive Discharge Decision — from Molly DiBianca’s Delaware Employment Law Blog

Social Media & Workplace Technology

• Do Your Employees BYOD? Here’s How to Reduce the Hassles… — from Hiring & Firing
• Who owns your Twitter followers? — from Evil HR Lady, Suzanne Lucas
• Employee posts “I wish I could get fired” on Facebook. Guess what happened? — from Eric Meyer’s The Employer Handbook Blog
• Should you monitor workers’ electronic communications? — from Technology for HR
• FaceWash Makes Sure Your Facebook Profile Is Clean and Interview-Ready — from Lifehacker

HR & Employee Relations

• Smoking Discrimination — from Texas Employer Handbook
• Employee Takes Too Many Bathroom Breaks — from hr bartender
• Psst… This Is What Your Co-Worker Is Paid — from Rachel Emma Silverman at the Wall Street Journal

Wage & Hour

• Employer’s Bane: Unpredictable FMLA leave. Is there a solution? — from Robin Shea’s Employment and Labor Insider
• Why Must Employers Train Their Managers About the FMLA? Here are 1.2 Million Reasons Why — from Jeff Nowak’s FMLA Insights
• What You Need To Know About RIght-To-Know — from Stephanie Thomas at Compensation Café
• Tell Us How You Misclassify Employees — from Mike Haberman’s Omega HR Solutions
• Former Athletics Department Intern Throws Flag On Hamilton College's Pay Practices — from The Wage and Hour Litigation Blog
• The Dirty Dozen Widely-Believed Myths of Wage/Hour — from HR Daily Advisor
• What Do You Mean I Have To Pay My Nanny Overtime?! — from Wage & Hour Insights

Labor Relations

• The Debate Continues: Recent Eighth Circuit Decision Adds to the Growing Tension between Federal Courts and the NLRB Regarding the Enforceability of Class Action Waivers in Arbitration Agreements — from Employment Class Action Blog
• Remember When “Recess” Meant Fun and Games? The Impact of Canning v. NLRB, and What Employers Need to Know While We Wait and See if the Decision Will Remain Intact — from Employer Law Report
• The NLRB is out of business … maybe — from Blogging4Jobs
• Circuit Court Invalidates President Obama's Purported Recess Appointments to National Labor Relations Board, Finds Lack of Quorum — from Seth Borden’s Labor Relations Today
• Court ruling may nullify rules against firing workers for complaining about their jobs on Facebook — from Boy Genius Report
• Obama Risked Executive Power To Give Labor Its Payback — from LaborPains
• Nonunion employers in the crosshairs — from Idaho Business Review

photo credit: Tony Fischer Photography via photopin cc

What can go wrong when employees date?

Since Valentine’s Day will be fast upon us, I thought I’d take a new look at a popular issue this time of year—the office romance.

Gerald v. University of Puerto Rico (1st Cir. 1/28/13) [pdf] is textbook example of the parade of horribles that can happen when an office romance sours.

During at at out-of-town conference, Dr. Melissa Gerald had a week-long sexual relationship with her supervisor, Dr. Edmundo Kraiselburd. According to Gerald, the affair embarrassed her and she rebuffed Kraiselburd’s pursuits after their return home. Two years passed without incident, after which Gerald alleges three separate incidents of harassment occurred, all within two months of each other: (1) Kraiselburd propositioned Gerald for sex, (2) Kraiselburd grabbed her breast, and (3) Kraiselburd asked her, “What will it take for you to f**k me?”.

The hospital defended against Gerald’s sexual harassment claim by arguing that Gerald often engaged in sexual and off-color banter with Kraiselburd, and therefore invited whatever she received in kind. In reversing the district court’s dismissal of Gerald’s lawsuit, the court of appeals shut down any argument that Gerald had “asked for” the harassment:

We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. Instead the evidence here was enough, at the very least, to raise a factual question as to whether Kraiselburd’s conduct was unwelcome….

Pointing to the fact that Gerald and Kraiselburd often engaged in off-color banter, the University says the supposed harassment was not severe. We disagree and think a jury could have seen things otherwise. Gerald says Kraiselburd grabbed her breasts, sexually propositioned her, and crassly asked in front of others why she would not have sex with him. The University is not denying these occurrences for summary judgment purposes. These offensive incidents, which involved sexual propositioning and uninvited touching, can reasonably be viewed as severe; and, in the case of the breast grabbing incident, physically threatening (not to mention criminal). Like we have said, it is clear that "behavior like fondling, come-ons, and lewd remarks is often the stuff of hostile work environment claims….”

While this case shows what can go wrong when employees become sexually involved, it is not a reason to ban office romances or trysts. I believe that employees’ business is their business. We expect employees to commit long hours to their jobs, and it is often the case that their only opportunity to socialize is at work. The heart goes where it wants to go, and no workplace rule or policy will stop employees from getting involved with each other.

Instead of banning office romances, companies should reinforce appropriate workplace behavior during harassment avoidance and response training.

• Tell employees that office romances are not prohibited, but that the company expects professional behavior regardless of the personal relationship (past or present) between employees.
• Offer examples, such as the Gerald case, of how to not to behave following a break-up.
• Advise employees that unprofessional behavior following an office relationship is not tolerated, and will lead to discipline, up to and including termination.

Following these simple steps will put you in a position to present the best defense possible to a harassment lawsuit stemming from an office dalliance. It also means that you won’t have to fall back on the “she asked for it” defense, which, as Gerald illustrates, rarely works.

Are employers screwing up the FLSA’s lactation mandate? Probably not.

At Business Insurance, Judy Greenwald quotes an attorney who believes that employers are doing an inadequate job of accommodating employees’ lactation requests. The article discusses a recent Freedom of Information Act request, in which the Department of Labor disclosed that it has conducted 54 investigations into claims of inadequate lactation accommodations between the date the Patient Protection and Affordable Care Act took effect, March 23, 2010, and June 11, 2012. Those investigations, in turn, uncovered 36 violations of the law. Based on that data, the article concludes that “the Labor Department is paying attention to and is prepared to enforce” the FLSA’s lactation mandate, and that “employers either are not aware of their obligations, or do not fully understand them.”

I wholeheartedly disagree. A little more than a year ago, I ran a post on this same issue. At that time, I pointed out that the DOL had only cited 23 companies, or 0.023 percent of all companies with 100 or more employees. Now, with an additional six months of data, the number of citations has jumped by 13, from 23 to 36.

By comparison, according to the EEOC’s recently updated charge filing statistics, individuals filed 99,412 separate discrimination charges during fiscal year 2012. In other words, discrimination complaints with the EEOC in the last year outpaced lactation complaints with the DOL in the last two and a quarter years by a factor of 1,841.

What is the reasonable explanation for this small number of lactation-rights complaints? Companies are not denying new moms the right to lactate in the workplace. Anecdotally, I have never come across the issue with a client in my 15+ years of practice, and I know of no colleague who has either. You would think that if this problem exists, someone would have dealt with it.

Nevertheless, if you are on the fence about your obligations under this provision of the Patient Protection and Affordable Care Act, here is what you should know:

• If you have 50 or more employees, you are required to provide a reasonable break time for an employee to pump breast milk. If you have fewer than 50 employees, you can deny the break time, but only if would pose an undue hardship, which the DOL considers to be a significant difficulty or expense.

• Employers are not required to compensate nursing mothers for breaks taken to expressing milk. The FLSA’s normal rules that govern unpaid versus paid breaks still apply. Thus, a break should be paid if it lasts 20 minutes or less and falls during an employer’s customary break time.

• In addition to adequate break time, an employer must also provide an appropriate lactation space. The space doesn’t have to be permanent. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, if the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom.

If you know of a company that has denied an employee the right to lactate, please either leave a comment below, or tweet me. I would like to know if there is any anecdotal support for the idea that companies are dropping the ball on this issue.

But he looked black… Court rebukes EEOC’s use of “race rating” in systemic lawsuit

According to the EEOC’s draft strategic enforcement plan for 2012 – 2016, the agency’s number one enforcement priority is ending systemic discrimination in recruiting and hiring. In EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) [pdf], the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. Yesterday, the court dismissed the lawsuit in its entirety, excluding the EEOC’s expert witness and concluding that without that expert, the agency could not prove its case.

To determine the race of a particular applicant considered by Kaplan, the EEOC’s expert witness used “race raters.” It subpoenaed the applicants’ DMV records, and used a panel of five people to determine if the photograph looked  “African-American,” “Asian,” “Hispanic,” “White,” or “Other.” The EEOC’s expert required that four out of the five race raters reach consensus to consider that applicant’s race.

Kaplan challenged that the judgment of these “race raters” was nothing more than guesswork, resulting in inherently unreliable data. In agreeing with Kaplan and dismissing the lawsuit, the court cited at least four different reasons for excluding the EEOC’s expert. It was the last reason, though, that caught my eye:

Plaintiff also presents no evidence that determining race by visual means is generally accepted in the scientific community. In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate “only if an employee refuses to self-identify.” … According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect “individual dignity.” Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.

In other words, the agency charged with ending racial stereotypes in the workplace based its entire case on stereotypical way in which different races “look.”

If there’s one thing I hate it’s intellectual dishonesty. Whether it’s the EEOC prosecuting a race discrimination case by using “race spotting,” or a Catholic hospital defending a wrongful death suit by arguing that a fetus is not a person because life begins a birth, not conception, intellectual dishonesty is nothing more than the sum of hypocrisy and laziness. I am grateful that we have federal judges in my home district who are willing to call the EEOC on the carpet for this tactic, and I am hopeful that the 6th Circuit will see things the same way when ruling on the inevitable appeal.

Employees, if you don’t want us to get your social media info in discovery, don’t post!

In EEOC v. The Original Honeybaked Ham Co.—a hostile environment sexual harassment brought by the EEOC on behalf of 20 female employees—the federal court compelled the plaintiffs to produce their social media profiles. Donna Ballman, writing at Screw You Guys, I’m Going Home, argues that the court botched this ruling because an order compelling the production of social media information in a sex harassment suit can only lead to an employer arguing that that the plaintiffs “asked for it.” Donna argues:

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, “Cu**” on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can’t be offended when someone else uses it toward them.

Donna’s argument, however, misses the mark. The court did not compel the production of the employees’ social media accounts to bolster a “they asked for it” defense. The court ordered the production because one of the employees “posted on her Facebook account statements that discuss her financial expectations in this lawsuit,” and wrote about “her post-termination employment and income opportunities and financial condition.” She also wrote about other potential causes for any emotional harm (a lost pet), and her positive outlook on life following her termination. Other of the plaintiffs joined in at least some of these posts.

There are two key issues in any case: liability and damages. The court primarily ordered the production of the social media information to permit the employer to build a defense as to the latter. An employee’s financial motivations and emotional well-being are relevant to showing that she has not been harmed to the extent she is claiming, if at all.

Moreover, the court did not compel the free and unfiltered production the employees’ social media accounts. It required an in camera inspection by the court, along with of a forensic special master and detailed questionnaires for each plaintiff to complete concerning their online activities. This case is not an example of a court irresponsibly ordering a prying into plaintiffs’ private lives under the guise of discovery. This court went above and beyond to prevent any unnecessary invasions of privacy while ensuring the employers’ right to gather relevant information.

The bottom line is that social media profiles are a potential treasure trove of information in litigation.  Employees, if you do not want your social media posts to be reviewed in a lawsuit you file, stop posting. Stop writing about your post-termination state of mind. Stop communicating with former co-workers. Stop writing about your lawsuit. And, stop posting photos of yourself wearing a “cu**” t-shirt. If you post, rest assured it will likely be fair game to use against you in the lawsuit you chose to file. As the Honeybaked Ham court reminds us: “If all of this information was contained on pages filed in the “Everything About Me” folder, it would need to be produced. Should the outcome be different because it is on one’s Facebook account?”

WIRTW #258 (the “imitation is the sincerest form of flattery” edition)

This week, the Connecticut General Assembly (hat tip: Dan Schwartz) introduced Proposed House Bill 5236, which would create an “Employer’s Bill of Rights.” Hey, that sounds kind of familiar. Didn’t someone wrote a whole book called The Employer Bill of Rights?

Representative Kupchick, I’m waiting for my licensing fee. I’m sure the check’s in the mail.

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

Discrimination

• Rethinking Discrimination — from Heather Bussing at HR Examiner
• Fact or Fiction: Your employee's nasty facial scar may be a disability — from Eric Meyer’s The Employer Handbook Blog
• Limits on reemployment rights under USERRA — from EmployerLINC
• Can you terminate an employee covered by USERRA? — from Warren & Associates Blog

Social Media & Workplace Technology

• You Can (Sort Of) Talk Smack About Your Boss Online Now — from Workplace Diva
• Facebook trashing your boss may be OK — from CareerDiva
• The Great Employer/Employee Social Media Passwords Debate — from Jessica Miller-Merrell’s Blogging4Jobs
• How “bring your own cloud” could kill BYOD — from Consumerization Blog

HR & Employee Relations

• Video of Ohio Man Lifting Weights Ends His Workers’ Comp Benefits — from EmployerBrief
• You’re Damned if You Don’t Have the Right Inclement Weather Policy — from damnedif
• Catfishing "Employers" — from Workplace Prof Blog
• Manti Te’o, Notre Dame and the Art of the Crappy HR Investigation — from The HR Capitalist, Kris Dunn
• The Batmobile Employee Handbook Provision — from Employment & the Law
• Four Words the Fair Credit Reporting Act has Class Action Plaintiffs and Their Lawyers Repeating: “Show Me The Money!” — from Employment Class Action Blog

Wage & Hour

• Sex, lawyers, and “independent contractor versus employee” – believe it or not! — from Robin Shea’s Employment and Labor Insider
• DOL Issues Guidance on FMLA for Adult Children — from Phil Miles’s Lawffice Space
• Clarification of FMLA Leave for Children with a Disability — from Jason Shinn’s Michigan Employment Law Advisor
• DOL’s Misclassification Initiative Continues — from Wage & Hour Insights
• “Right to Know” Back On The Table? — from Wage and Hour Laws Blog
• The FLSA's Emergency Exception — from Stephanie Thomas at Compensation Café
• Under Federal Law, Are You Required to Pay Your Employees for Their Breaks or Not? — from Overtime Advisor

Labor Relations

• Another Dizzying Ride on the NLRB Roller Coaster — from Molly DiBianca’s Delaware Employment Law Blog
• The NLRB Hits Just Keep Coming. This Time, Possible Front-Pay — from Trade Secret / Noncompete Blog
• The NLRB Hinders Confidentiality in Nonunion Companies — from Michael Haberman’s Omega HR Solutions
• Union Membership Plummets, According to Today’s Bureau of Labor Statistics Report — from LaborPains

Damn You Auto Correct! (train your employees to proofread)

Do you have employees under the age of 35? If so, the odds are that they communicate with each other with text messages on their mobile devices. If you’ve ever texted, you know the evils of autocorrect. For the uninitiated, autocorrect is a function of today’s smartphones that automatically changes an unrecognized word to its closest match.

Sometimes, these auto-corrects have hilarious results.

Of course, one employee’s hilarious is another’s offensive, which brings us to today’s HR lesson.

When you hold your annual harassment training (you hold annual harassment training, right?) you might want to consider mentioning the evils of autocorrect. You will never succeed in having the Gen-Y’ers and Gen-Z’ers exchange their iDevices for more face-to-face conversations. You may succeed, however, in educating on the importance of proofreading messages before they are sent, which, in turn, could save you the time and expense of an internal harassment investigation, or, worse, defending a lawsuit.

This post originally appeared on The Legal Workplace Blog.

How do you spell civil rights? ENDA

Yesterday, the EEOC announced that it has filed a lawsuit against a Charlotte security-services company on behalf of a group of male employees who claim that their same-sex captain and lieutenant sexually harassment them.

This news comes on the heels of President Obama’s Inaugural Address, which The New Yorker calls, “America’s most important gay rights speech.” It was not only what the President said, but also the context in which he said it—on Martin Luther King Day, as part of a larger discussion about the civil rights movement.

Here are the President’s remarks, courtesy of ABC News:

We, the people, declare today that the most evident of truths—that all of us are created equal—is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall….

It is now our generation’s task to carry on what those pioneers began…. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law—for if we are truly created equal, then surely the love we commit to one another must be equal as well.

What does this mean for you, as an employer? It means that President Obama’s second term will likely be the point in history when sexual orientation achieves equality. It means that sometime between now and 2016, the Employment Non-Discrimination Act (ENDA) will become the law of the land, amending Title VII to include sexual orientation and gender identity as protected employment classes on par with race, sex, religion, national origin, disability, and age. It’s about time.

The time is coming when LGBT discrimination will no longer be acceptable. As an employer, you can get ahead of this issue. According to the Human Right Campaign, 88 percent of the Fortune 500 has non-discrimination policies that include sexual orientation, and 57 percent include gender identity. ENDA or not, we should be at 100 percent. It’s appalling that 13 years into the twenty-first century, it is still legal in the United States of America to treat people differently solely because of their inclusion in a marginalized group. 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.

Requests for unpaid medical leaves should be stamped, “Handle With Care”

If I had to rank questions I get from clients in order of frequency, questions on medical leaves would be near, if not at the top of, the list. These questions usually take the form of, “Sally has been out of work on a medical leave for a few weeks (or months), and tells us she needs to be out for a few more. We need to get her work done. Can’t we just replace her and move on?” The easy answer, whether or not you are covered by, or the employee is eligible under, the FMLA, is a big fat “no.”

Regardless of the FMLA, the ADA will require that you consider, and likely grant, an unpaid leave of absence as a reasonable accommodation for a disability. How long is too long? Bimberg v. Elkton-Pigeon-Bay Port Laker Schools (6th Cir. 1/17/12) [pdf] provides some guidance.

Cynthia Bimberg took an unpaid leave of absence from her teaching position to care for her husband, diagnosed with metastasized melanoma. The employer granted her 12 weeks of leave under the FMLA, extended that leave by 6 months until the end of the school year, and again extended it to the one-year anniversary date of her leave. When she then failed to return to work, the school district terminated her employment.

In affirming the decision dismissing Bimberg’s ADA lawsuit, the 6th Circuit commented on the duration of her leave in relation to the legal merits of her discrimination claim:

The alleged factual dispute concerns Bimberg’s insistence that her year of unpaid leave ended on January 4, 2010, not on December 18, 2009. But Bimberg conceded in her deposition testimony that she would not have returned to work in January 2010 in any event, because she could not leave her terminally ill husband in Houston. Indeed, she did not return to Michigan permanently until a week after his death on February 11, 2010….

It is apparent that Cynthia Bimberg was motivated by the hope that Laker Schools would relent and, on humanitarian grounds, allow her to take what, from their point of view, constituted an indefinite leave. The school district’s failure to do so clearly did not constitute a violation of the ADA.

What should you take away from this case?

• 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.

• You must consider a finite unpaid leave as an accommodation. Even finite leaves, however, can reach a point that tips the leave from reasonable to unreasonable.

• If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to have an open dialogue with the employee about a return date, and prepare to be flexible (to a point). 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. Then, when the employee asks for “one more extension” to his or her leave of absence, no one will fault you as an unreasonable ogre if you decline.

[Photo credit: jenny louise johnson via photopin cc]

Something different for MLK Day

Today is Martin Luther King Jr. Day, celebrating not only the life of Dr. King, but, more importantly, the lessons of inclusion and respect to be learned from his life and untimely death.

In years past, I’ve provided some words of wisdom for employers from this important day:

• 2012: What Dr. King fought for … and what he didn’t
• 2011: MLK Day calls for reflection about how far race relations have come, and how far we have left to go
• 2008: Some words to ponder on MLK Day

If you’ll indulge me, I thought I’d try something a little bit different to memorialize this day: humor—both in the SFW and NSWF variety—each with something important to say about race relations in our society.

 

Archie Bunker's historical meeting with Sammy Davis Jr. (SFW)

 

Chris Rock asking, "Can white people say nigger?" (NSWF)

And, if humor’s not your thing, I’ll be back to regularly scheduled programming tomorrow with a post answering the age-old disability discrimination question, “How long is too long for a medical leave of absence?”

WIRTW #257 (the “Lawsuit of the Year?” edition)

The year is young, but we already have a strong candidate for the lawsuit of 2013. Above the Law brings us the story of a teacher who claims that her school failed to accommodate her disability—a fear of children.

Above the Law, quoting the Huffington Post, provides the details:

Waltherr-Willard, 61, claims in her lawsuit against the Mariemont school district that for 35 years, she taught Spanish and French to high school students in the system. But when she helped fight the district’s decision to cut French class in favor of an online course, officials retaliated by reassigning her to younger students at a middle school in 2009, ignoring her hypertension, specific phobia and general anxiety disorder, Waltherr-Willard says, according to Cincinnati.com…

Working with younger children at the middle school “adversely affected [Waltherr-Willard's] health, due to her disability,” the lawsuit claims, according to ABC News.

What’s next? Lance Armstrong suing the International Cycling Union for failing to accommodation his fear of winning without PEDs?

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

Discrimination

• Who are YOU to tell ME that I'm not offended by sexual harassment?!? — from Eric Meyer’s The Employer Handbook Blog
• Can You Fire the “Temptress”? — from Michael Haberman’s Omega HR Solutions
• EEOC Lawsuits: “Don’t Fire Qualified Employees Based on Fears, Myths or Stereotypes” — from Employment Discrimination Report
• Vegan Hospital Worker’s Flu Vaccination Refusal May Be Protected Religious Belief — from Healthcare Employment Counsel

Social Media & Workplace Technology

• Teacher's Facebook Firing Upheld by N.J. Appellate Court — from Molly DiBianca’s Delaware Employment Law Blog
• Employees Lie, Get Busted on Facebook – But It’s Their Boss That Gets Fired — from Augmented Legality
• Ten of the Biggest Social Marketing Fails of 2012 — from Social Media Strategies Summit Blog
• Discovery of Social Media Accounts Might Be a Toss-up if Requests are Too Broad – Two Conflicting Federal Points of View — from netWORKed Lawyers
• Notre Dame, Manti Te’o, Catfishing, Online Impersonation, and the Law — from Shear on Social Media Law

HR & Employee Relations

• Bereavement Leave in Connecticut — from Dan Schwartz’s Connecticut Employment Law Blog (with condolences)
• 25 weirdest job interview questions of 2012 — from Evil HR Lady, Suzanne Lucas
• More Vacation Policies to Hate: One Week Off Every Quarter… — from The HR Capitalist, Kris Dunn
• Ignite HR 7: Why You Should Trash Your Policy Manual — from TLNT
• News You Can Use (?) – Flatulence in the Workplace — from Evil Skippy at Work
• Flatulence Warning Withdrawn — from Phil Miles’s Lawffice Space
• Employers Subject to the FCRA Must Use New Forms for Background Checks Effective January 1, 2013 — from Minnesota Employment Law Report

Wage & Hour

• Top Issues for Employers in 2013: Social Media & Independent Contractors — from Employment Matters Blog
• DOL’s Wage and Hour Division Seeks Input on Proposed Worker Classification Survey — from Washington D.C. Employment Law Update
• Unlawful Retaliation Against Nursing Mothers? — from Wage & Hour Defense Institute
• Fifth Circuit Holds Employer’s Mandatory Travel Program Does Not Constitute Compensable Travel Time — from Russell Cawyer’s Texas Employment Law Update

Labor Relations

• NLRB Continues Pro-Union Agenda — from Health Employment and Labor
• Labor and Human Relations Professionals Face More Challenges In Light of Recent NLRB Decisions — from Labor Relations Today

Say it ain’t so: court holds an employer does not have to accommodate a pregnant employee

Last year, I railed against the Pregnant Workers Fairness Act, a bill that, if passed, would require employers to make a reasonable accommodation for an employee’s pregnancy, childbirth, and related medical conditions. I argued that the law does not need alteration because Title VII, through the Pregnancy Discrimination Act, already requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition.

Last week, in Young v. UPS, the 4th Circuit Court of Appeals held that Title VII does not require employers to provide pregnant women a “reasonable accommodation” when, as a result of pregnancy, they are limited in their ability to perform work duties. Was my musing about the evils of the Pregnant Workers Fairness Act off-base?

The facts of Young are simple. UPS required Ms. Young to be able to lift up to 70 pounds as part of her job as a package delivery driver. After she became pregnant, her doctor limited her lifting. Ms. Young requested that UPS move her to a light duty assignment. UPS’s collective bargaining agreement allowed an employee to work a light duty assignment only because of an “on-the job” injury or when “disabled” under the ADA. Because Ms. Young did not meet either of these categories UPS denied her request.

Ms. Young argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree the employer accommodated a disabled employee. The 4th Circuit rejected her argument, finding that where an employer’s policies treat pregnant workers and non-pregnant workers alike, it has complied with Title VII:

Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her healthcare provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work—i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress's intent in enacting the PDA.

Reading this decision, you might be thinking to yourself, “Hyman, you’re wrong. Title VII does need to be amended to grant accommodation rights to pregnant women.” You, however, would be jumping the gun.

As Robin Shea astutely observed at her Employment & Labor Insider, because of 2009’s ADA Amendments Act, today’s ADA is very different than the statute in effect during Ms. Young’s 2006 pregnancy:

In 2007, the “old” Americans with Disabilities Act was in effect, which had some pretty stringent definitions of who was considered “disabled.” Not only was a 20-pound lifting restriction generally not considered “disabling,” but virtually no temporary impairment, no matter how severe, was. And pregnancy is not a “disability” in itself because the ADA says so. Accordingly, Ms. Young was out of luck.

The ADAAA, of course, greatly expanded the definition of “disability,” and the interpretations of the Equal Employment Opportunity Commission indicate that a temporary condition that lasts more than six months could indeed be considered “disabling.” Ditto for a 20-pound lifting restriction.

In other words, today an employer could be required to provide a reasonable accommodation to a pregnant employee to the same extent it provides a non-pregnant disabled employee an accommodation, or face the possibility of a pregnancy discrimination lawsuit.

Handling accommodation requests by pregnant employees is a thorny area of the law. My recommendation is instead of trying to sort through these issues for yourself, you contact your employment counsel before denying an accommodation request made a pregnant employee.

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Thanks to Justine Konicki for her help on this post.

Putting the human back in human resources, redux

As a parent of a child with some medical issues, I am very sensitive to the needs of working parents. Luckily for me, I work at business that understands these needs and has never batted an eye when my son spent 19 days in the hospital, or I want to attend an echocardiogram or some other appointment with one of his doctors. Some employees, however, are not as blessed.

Consider, for example, the case of Wegelin v. Reading Hosp. & Med. Ctr. (11/29/12). Rachel Wegelin’s daughter, Carolyn, suffers from pervasive developmental disorder, which manifests by delays in social and emotional functioning, sensory integration difficulties, and attention deficit. Carolyn attends before and after daycare at a facility to and from which she can be transported to school. When the hospital moved Wagelin’s parking space to a more distant lot, she no longer had sufficient time to pick up Carolyn from the daycare before it closed. So, she requested FMLA leave for the express purpose of finding a suitable daycare that would accommodate her new work schedule and her daughter’s medical needs. The employer refused and fired the employee when she took off the time anyway.

In defending against the inevitable FMLA lawsuit, the employer argued that the FMLA does not provide leave for a parent to locate childcare. The court, in denying the employer’s motion for summary judgment, vehemently disagreed:

Making arrangements for “changes in care” is expressly covered by the regulations. Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s daycare is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her. Bowmansville daycare center was suitable, but no longer available. Therefore, when Reading Hospital changed Wegelin’s parking assignment, she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.

I’ve written before about the importance in putting the human back in human resources. I also discuss this idea in detail in my latest book, The Employer Bill of Right: A Manager’s Guide to Workplace Law. This case perfectly illustrates this principle. How hard would it have been to accommodate this employee? And, no, I’m not suggesting that the hospital should have given her back her old parking space. As someone whose first question after making partner was, “Do I get a better parking space,” I understand the turmoil that accommodation would almost certainly cause. All kidding aside, this employee did everything she could to balance her job and the unique needs of her family. All she requested was some small amount of unpaid time off to find a childcare solution to accommodation her new work schedule and her child’s serious medical needs.

Or, let me put it this way for those of who are more dollars-and-cents oriented in your thinking. Employers, what do you think costs more? Accommodating a few days of unpaid time off, or defending this lawsuit?

[Hat tip: Pennsylvania Family Law Blog, c/o Employment Discrimination Report]

Can you hear me now? Employer cannot reject disabled employee without individualized inquiry of the ability to do the job

Nicholas Keith has been deaf since birth. He is also, apparently, a pretty good swimmer. He successfully completed the Oakland County, Michigan, lifeguard training course with the assistance of sign language interpreter to communicate instructions. The county rescinded its conditional job offer for a lifeguard position after Keith’s pre-employment physical. The examining doctor approved Keith’s employment as a lifeguard if his deafness was “constantly accommodated.” Without any consultation with Keith, the county unsuccessfully brainstormed possible accommodations, and, ultimately, rescinded the job offer.

In Keith v. Oakland County (1/10/13) [pdf], the 6th Circuit reversed the district court’s order dismissing Keith’s disability discrimination lawsuit. The court relied upon the ADA’s requirement for an “individualized inquiry in determining whether an [employee’s or applicant’s] disability or other condition disqualifies him from a particular position.”

In this case, the county made no individualized inquiry.

After Dr. Work entered the examination room and briefly reviewed Keith’s file, he declared, “He’s deaf; he can’t be a lifeguard.” Dr. Work made no effort to determine whether, despite his deafness, Keith could nonetheless perform the essential functions of the position, either with or without reasonable accommodation. Indeed, Dr. Work has no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. Dr. Work’s cursory medical examination is precisely the type that the ADA was designed to prohibit.

What is the takeaway for employers? If you are dealing with disabled applicants or employees, you cannot make the employment decision in a vacuum. You must act based on the actual disability and its effect on the particular individual’s ability to perform the job. You should consider:

• the individual’s personal characteristics;
• the actual medical condition; and  
• the effect, if any, the condition may have on the ability to perform the specific  job in question.

Most importantly, you should include the individual in the assessment. No one is a better judge of one’s real-world abilities and limitations than the individual himself or herself.

If you failing to engage in this individualized inquiry, it will look like you are making the employment decision based on stereotypes and generalizations, which the ADA is supposed to rid from the workplace. That perception will not bode well for your defense of an ADA lawsuit.

Be careful what you bring upon yourself when suing an ex-employee

Last week—in Quicken Loans,Inc. (1/8/13) [pdf]—an NLRB administrative law judge invalidated the confidentiality and non-disparagement provisions in an employment agreement between Quicken Loans an an ex-mortgage banker, Lydia Garza. This decision continues the NLRB’s march towards the overly broad expansion of the definition of protected concerted activity. Molly DiBianca, at her Delaware Employment Law Blog, sums up the decision thusly:

Admittedly, the ALJ's conclusion that an employer is not free to contract with its highly compensated professional employees that those individuals will not disparage their employer or steal its confidential and proprietary information is a bit depressing. But keep in mind the remedy, friends. Having found that the provisions violated the NLRA, the remedy ordered by the ALJ was that the provisions be revised. Or, if the employer didn't want to go to the trouble of reprinting new agreements for all of its highly compensated brokers, it could simply provide a single-page addendum, notifying those highly paid employees that the two provisions were rescinded.

I want to focus on another business lesson from the decision—why the employee filed the case in the first place. Here’s the ALJ’s summary of the charging party’s motivation for filing the charge with the NLRB.

Garza testified that shortly after she left the Respondent’s employ, she and five other former employees of the Respondent were sued by the Respondent for an alleged violation of the no contact/no raiding and the non-compete provisions of the Agreement.

I’m fairly certain that Garza never even thought filing a challenge to her employment agreement with the NLRB until she got sued and had to hire a lawyer, who, in turn, reviewed the agreement and saw an opening.

If you are going to sue an employee, current or former, make sure you do your diligence of your own potential liabilities. If you uncover something that can come back and bite you, make sure it is a claim with which you can live. Depending on what you unearth, leaving well enough alone with your employee may be the most prudent course of action.

WIRTW #256 (the “crystal ball” edition)

Last week, I shared the 2013 resolutions of some of my favorite blogs. This week, I’m sharing some employment law predictions for the coming year from two of the best employment law blogs out there.

• Reading the Tea Leaves for Employment Law in 2013 (Harry Potter Edition) — from Dan Schwartz’s Connecticut Employment Law Blog
• And The Crystal Ball Says: My Predictions for 2013 Employment Law — from Donna Ballman’s Screw You Guys, I’m Going Home

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

Discrimination

• How to Avoid Employment Litigation — from Heather Bussing at HR Examiner
• Surprise! Pay Equity a Top Priority for EEOC — from Stephanie Thomas at Compensation Cafe
• Could Your Sexual Harassment Policy Land You in Court? — from i-Sight Investigation Software Blog
• Representing an Overweight Female Defendant? Male Jurors May Be Biased, Study Says — from ABA Journal Daily News
• Following the rules does pay off — from EmployerLINC
• You’re Damned if You Turn a Blind Eye to a Disabled Employee’s Ability to Perform the Essential Functions of the Job — from damnedif
• Three Take-Aways from the EEOC's Strategic Enforcement Plan by Commissioner Chai Feldblum — from Workplace Fairness

Social Media & Workplace Technology

• This is my new go-to social-media-discovery judicial opinion — from Eric Meyer’s The Employer Handbook Blog
• LinkedIn now has more than 200 million users in more than 200 countries — from The Verge

HR & Employee Relations

• When Work Sucks: How to Terminate Your Employee — from Jessica Miller-Merrells’ Blogging4Jobs
• Dealing With Workplace Bullies As A Temporary Worker — from Workplace Diva
• Should Employers “Ban the Box”? — from Mike Haberman’s Omega HR Solutions
• Here Comes the Test Of Your Sick Time Policy — from Workplace Diva
• Trying to reason during the flu season — from John Holmquist’s Michigan Employment Law Connection

Wage & Hour

• An Employee Requests and is Denied Vacation Leave but Later Takes FMLA Leave for the Same Time Period. What Recourse Does an Employer Have? — from Jeff Nowak’s FMLA Insights
• Internship Class Action Settles for $250,000 — from San Antonio Employment Law Blog
• Tough Questions For The Interviewer: Charlie Rose Settles Class Action Intern Lawsuit Alleging Employee Status — from Wage & Hour - Development & Highlights
• DOL Regulatory Agenda: More Aggressive Activity Expected — from Wage and Hour Law Update

Trade Secrets & Competition

• What Can the NHL Lockout Teach Us About Mediating Non-Compete and Trade Secret Disputes? — from Trade Secrets & Non-Compete Blog
• Call Me, Maybe. Discovery of Employee Identities — from Molly DiBianca’s Delaware Employment Law Blog
• Trade Secret and Noncompete Survey – National Case Graph 2013 — from Fair Competition Law
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Conclusion — from The Emplawyerologist

Labor Relations

• Obama NLRB Presents Employers With Several Lumps Of Coal — from Stoel Rives World of Employment
• Investigation alert: The NLRB takes aim again at confidentiality — from Warren & Associates Blog
• When Does an Employer Have to Hand Over Witness Statements to a Union? — from Labor & Employment Law Perspectives
• NLRB Finds Employees’ Facebook Posts Venting about Coworker Are Protected — from netWORKed Lawyers
• New Media and Old Precedent under the National Labor Relations Act — from Employer’s Law Blog

Internet-Use Disorder: The Newest Disability?

The DSM-5, the official psychiatrist’s diagnostic manual, has accepted Internet Use Disorder for inclusion, albeit in a section devoted to conditions that require further research.

This “disease” has its roots in a 1995 satirical hoax by Dr. Ivan Goldberg. Despite its dubious origins, over the past decade its acceptance as a legitimate clinical disorder has grown, culminating in its upcoming inclusion in the DSM-IV.

What does this mean for your workplace? If Internet addiction is a psychiatric disorder, then employees who suffer from it may be protected by the ADA. This development has potentially significant implications for your workplace.

• Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, might you have to engage those employees in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area? 
• Do you have a policy that prohibits non-work-related Internet use? If so, such a policy might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

The inclusion of Internet-Use Disorder in the DSM-IV raises many more questions than answers for employers. Businesses need to be aware of the possibility that a cyber-surfing employee will raise this issue, and must prepare to address this problem a way that will not walk the employer into the trap of a costly ADA lawsuit.

This post originally appeared on The Legal Workplace Blog.

What isn’t a reasonable accommodation?

Employers spend a lot time with employees figuring out reasonable accommodations they can make for disabled employees. There are many accommodations that employers must consider if necessary to enable a disabled employee to perform the essential functions of the job. One type of accommodation that typically beguiles employers is job restructuring, including reassignments to other positions.

Wardia v. Justice & Public Safety Cabinet Dept. of Juvenile Justice (6th Cir. 1/3/13) provides an example of how these principles can play out.

John Wardia was a Youth Worker at the Campbell County Regional Juvenile Detention Center. Following neck surgery, he became unable to perform physical restraints on juveniles, an essential function of his job. Wardia initially requested, and the employer granted, a temporary accommodation working a light-duty position in the control room. After Wardia’s doctor made clear the disability was permanent, he asked for one of two accommodations—being relieved by coworkers whenever the need to restrain arises, or a permanent reassignment to the control room. The employer denied both requests and terminated Wardia’s employment.

The court upheld the dismissal of Wardia’s disability discrimination lawsuit.

• Rejecting Wardia’s request that a co-worker relieve him when the need arose to restrain someone, the court concluded, “The ADA does not require employers to accommodate individuals by shifting an essential job function onto others.”
• Rejecting Wardia’s request for a permanent assignment to the control room, the court concluded, “Employers cannot be required to convert either rotating or temporary positions into permanent positions … [and] temporary light-duty positions for recuperating employees need not be converted into permanent positions.”

Just because a disabled employee asks for an accommodation does not mean that you have to grant the request. Engage in the employee in the interactive process, and make a reasoned decision that the accommodation will enable the employee to perform the essential functions of the job while protecting your business from undue hardship.

Firing of “irresistible” employee does not equal sex discrimination?

She’s unavoidable, I’m backed against the wall
She gives me feelings like I never felt before
I’m breaking promises, she’s breaking every law
She used to look good to me, but now I find her
Simply irresistible

Robert Palmer. “Simply Irresistible.” Heavy Nova. EMI Records, 1988.

Every now and again an employer wins a case that offends my sensibilities as an advocate for employers’ rights. This is one of those stories.

By now, you’ve likely read about the employee fired because her boss found her too attractive. You’ve also probably read how the Iowa Supreme Court concluded that an employee fired under these circumstances cannot pursue a claim for sex discrimination under that state’s civil rights laws.

Melissa Nelson worked as a dental hygienist for Dr. James Knight for ten-and-a-half years. Dr. Knight terminated Nelson at his wife’s request. Nelson never flirted with Dr. Knight or sought an intimate or sexual relationship with him. Dr. Knight, however, was attracted to her, and made several comments to her about the tightness of her clothes, and their effect on the tightness of a certain area of his clothes.

Following Nelson’s termination, Dr. Knight replaced her with another female. In fact, every hygienist who ever worked for Dr. Knight was female.

In Nelson v. Knight (12/21/12), the Iowa Supreme Court concluded that Nelson had not presented a sex discrimination claim.

So the question we must answer is … whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction….

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet … Dr. Knight's unfair decision to terminate Nelson … does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson….

Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.

It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination…. If Nelson could show that she had been terminated because she did not conform to a particular stereotype, this might be a different case. But the record here does not support that conclusion. It is undisputed, rather, that Nelson was fired because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.

The media has heavily criticized this decision. That criticism is warranted. Yes, Dr. Knight only employs female hygienists, and replaced Nelson with another female. One could also argue that the doctor only fired Nelson because of her looks, not because of her gender. Those arguments, though, ignore the fact that if  she was a he, her looks would not have been an issue in her employment at all. The sex discrimination laws are supposed to insulate employees from employment decisions based on sex-based stereotypes, not protect the employers who make those decisions.

Nelson, a ten-plus-year employee, should not have to look for a new job merely because her boss might not be able to control himself around her. If the sex discrimination laws do not protect an employee like Nelson, then I fear we are taking a huge civil rights step backwards. 

Fringe “religions” (veganism?) raise interesting problems for accommodation requests

Like most medical facilities, Cincinnati Children’s Hospital appears to require that all of its employees receive an annual flu shot. It fired Sakile Chenzira, a customer service representative, for refusing to comply. Chenzira sued, claiming that because the flu vaccine contains eggs the requirement violated her religion—veganism—which prohibits the ingestion of any animals or animal by-products.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 12/27/12) [pdf], the federal court denied the hospital’s motion to dismiss the religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation.

In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

In other words, the court punted. It allowed the parties to test in discovery whether Chenzira’s veganism rises to the level of a sincerely held religious belief. For what it’s worth, the lone other case I could find that discussed whether veganism is a religion worthy of protection under employment discrimination laws—Friedman v. Southern Cal. Permanente Med. Group (Cal. Ct. App. 9/24/02)—concluded that veganism is not a religion, but a personal philosophy and way of life.

This case raises an interesting question—how far should businesses go to accommodate employees’ requests for special treatment. I cover this issue in depth in The Employer Bill of Rights: A Manager’s Guide to Workplace Law, concluding, “Sometimes, the path of least resistance makes sense.”

For a hospital, there may not be a path of least resistance when comes to public health issues such as flu vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Probably. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Possibly.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How your incorporate those other factors into your accommodation decision-making is often more important than simply answering the legal question.

[Hat tips: The Employer Handbook Blog, Employment & Labor Insider, and Jottings by an Employer’s Lawyer]

WIRTW #255 (the “back to the future” edition)

This week’s “WIRTW” is all about looking ahead. On Wednesday, I shared the one New Year’s resolution all employers should make for 2013. This week, some of my blogging brethren also shared their thoughts on resolutions employers should make for the coming year.

• 2013 New Years’ Resolutions for Employers — from Tim Eavenson’s Current Employment
• Countdown to 2013: Five Key Predictions for the Future Workforce — from EmployerBrief
• Evil Skippy’s Workplace Resolutions for 2013 — from Evil Skippy at Work
• The Top 4 Employment Law Concerns for Small Businesses in 2013 — from CPEhr
• HR Predictions for 2013 — from Mike Haberman’s Omega HR Solutions
• Top Five New Year’s Resolutions for Wage/Hour in 2013! — from Wage & Hour Defense Institute
• HR’s 2013 “To Do” List — from China Gorman
• 6 HR tech resolutions for 2013 — from Technology for HR

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

Discrimination

• With employers like THIS, it's gonna be a busy 2013 for the lawyers — from Eric Meyer’s The Employer Handbook Blog
• Who Says I’m a Girly Man? Doth Sayeth the EEOC — from Molly DiBianca’s Delaware Employment Law Blog
• Company Fires “An Old Penny That Keeps Coming Back?” — from Employment Discrimination Report
• Bad “Business Judgment” is not Discrimination – Veronese v. Lucasfilm — from California Labor and Employment Defense Blog
• Policy for Requesting Medical Info Runs Afoul of ADA, Says EEOC — from The Proactive Employer Blog
• Critics are Unfairly Attacking the Iowa Supreme Court's Sex Discrimination Ruling in Nelson v. Knight — from Iowa Employment Law Blog
• The EEOC’s Strategic Enforcement Plan for 2013 — from Warren & Associates Blog

Social Media & Workplace Technology

• Should C-suites and Boards of Directors be Exempt from Social Media Training? — from Social Media Today
• BYOD: It’s Way Ahead of the Law, But You Need a Policy — from HR Daily Advisor
• Someone sent a dirty email from my work account — but it wasn’t me! — from Ask a Manager
• Defining who speaks for a company and when important in age of social media — from The Shreveport Times
• Six states outlaw employer snooping on Facebook — from CNET

HR & Employee Relations

• Is There Room for Humanity in HR? — from We Know Next
• President Obama Signs Trade Secrets Clarification Act and House of Representatives Considers Enhancing Economic Espionage Act Penalties — from Trading Secrets
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Part I and Part II — from The Emplawyerologist
• 6 Action Steps When Confronting Employee Theft — from i-Sight Investigation Software Blog

Wage & Hour

• My coworker is working off the clock — from Evil HR Lady, Suzanne Lucas
• 2 Recent Cases Draw Distinction Between Volunteers and Employees — from Overtime Law Blog

Labor Relations

• NLRB Continues to Assert Its Influence Over Non-Union Employees — from Labor Relations Counsel
• National Labor Relations Board Rules Employers Must Bargain With Union Representatives Over Discretionary Discipline — from Labor Relations Today

Lactation rights case teaches valuable lesson on responding to employee complaints

Believing that her employer, Roche Surety & Casualty Co., had deprived her of her right under the Fair Labor Standards Act for a time and place to express breast milk, Danielle Miller put her request in writing via an email to her supervisor. She claimed that the company retaliated against her after she emailed her supervisor with her request. That email stated:

Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.

In Miller v. Roche Surety & Casualty Co. (11th Cir. 12/26/12) [pdf], the appellate court concluded that Miller had not filed a complaint sufficient to raise the protections of the FLSA’s anti-retaliation provision:

Although the filing of a complaint … need not be in the form of an official complaint, … or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance….

Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism. Miller decided to express breast milk in her office without notifying any Roche supervisors. She did not complain or ask for a different location….

This case appears to have been an easy call for the 11th Circuit, since no one could possible interpret Miller’s email as a complaint. Nevertheless, this case teaches employers an important lesson: respond when an employee raises an issue, no matter how silly or trivial it may seem. Although the opinion is vague, it is safe to assume that the genesis of Miller’s lawsuit was a lack of any response to her email. Could this company have staved off a lawsuit by a simple reply to the email? Next time an employee communicates an issue with you, think about whether it is worth the risk to let the concern go un-addressed.

[Hat tip: Wage & Hour Law Update and Joe’s HR & Benefits Blog]

Your New Year’s resolution: draft a social media policy

Recently, Proskauer Rose published the results of its second survey covering social media in the workplace. Social Media in the Workplace Around the World 2.0 [pdf] questioned 250 multinational businesses on their social media policies and practices.

The results?

• 75 percent of businesses reported using social media for business purposes
• 77 percent permit at least some employee to access social media sites at work for non-business purposes,
• 69 percent have a social media policy,
• 46 percent have a social media policy that covers on-duty and off-duty activities.
• 33 percent their employees on the appropriate use of social media.

Employers, here is your New Year’s Resolution for 2013—draft a social media policy and train your employees on what it means.

Social media is still novel. Most of your employees do not understand how their off-duty online activities can impact their jobs. If you want to hold your employees accountable for what they say and do online both at work and outside of work, establish expectations. Put it in writing and explain to your employees what the policy means. That way, if you have to take action against an employee for something he or she says online, no one has any excuses.

According to a recent study, 88 percent of New Year’s resolutions fail. Strive to be among the minority that succeed in keeping their resolutions. Your employees will thank you.

Happy New Year!

Best of 2012: Numbers 2 and 1

The last day of 2012 brings my year-end countdown to a close. Here are my two favorite posts of the past year.

2. How to avoid your organization’s muppet manifesto

1. A letter to the NLRB on its latest position against confidential workplace investigations

Best of 2012: Numbers 4 and 3

Today, numbers 3 and 4 on the countdown.

4. New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

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

Best of 2012: Numbers 6 and 5

My year-end countdown continues with the my number 5 and 6 favorite posts of the year.

6. Even terminations over “genitalia sandwiches” can generate lawsuits

5. Does your social media policy educate about being “profersonal?”

Best of 2012: Numbers 8 and 7

Let’s continue our walk through my favorite posts of the past year.

8. When defending employment cases, chasing attorneys’ fees is a snipe hunt

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

Best of 2012: Numbers 10 and 9

Today, I start my annual year-end countdown of the year’s top posts. In years past, I’ve done the 10 most important issues and the 10 most popular posts based on page views. This year, I ‘m simply using my 10 favorite posts from the past year. Enjoy my nostalgic walk down memory lane.

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

9. Firing an employee? Tell them! (don’t Milton the termination)