A Muslim walks into a store… Corporate “Look Policies” and religious discrimination

I’ve written before about the tension between companies’ preferences for how employees look and the religious freedoms of those employees (here, here, here, and here).

One company that has gone many rounds in litigation over this issue is Abercrombie & Fitch. Anyone who has walked past an Abercrombie store knows the waft of its familiar fragrance. Abercrombie is not only interested in consistency in how its stores smell, but also how the employees who work in those stores look. To this end, Abercrombie maintains a formal “Look Policy,” detailing what employees are, and are not, permitted to wear. One of its bans is on headwear. According to Abercrombie, it has made at least 70 exceptions to its Look Policy in the last seven year, all on a case-by-case basis, including some religious accommodations for hijabs.

In EEOC v. Abercrombie & Fitch Stores (N.D. Cal. 4/9/13) [pdf], the EEOC alleges that a Milpitas, California, Abercrombie stored refused to accommodate Halla Banafa’s Muslim faith when it refused an exception to its Look Policy for her head scarf. The stored clued Banafa into the fact that her religion might be an issue when it asked her during the interview, “You're a Muslim, right?”
Abercrombie argued that it did not have to accommodate Banafa because it was an undue hardship to deviate from its Look Policy in her case. Specifically, Abercrombie argued that allowing the exception “would disrupt its careful branding efforts, resulting in customer confusion,” and that it would “hurt store performance.”

The court, however, sided with the EEOC, granting its motion to strike the store’s undue hardship defense:

Abercrombie does not offer any studies demonstrating a correlation between failure to comply with the Look Policy and either customer confusion or decreased sales. Nor does it offer into evidence any of the store reports that linked poor sales performance with lack of adherence to the Look Policy. Rather, Abercrombie offers only the seemingly speculative assertion on the part of its executives that the correlation exists…. Abercrombie’s executives consider adherence to the Look Policy important and part of their core strategy, yet they are unable to furnish any evidence outlining the degree to which Look Policy compliance affects store performance or brand image…. [T]he court finds that Abercrombie’s proffered evidence affords little basis upon which a reasonable jury could conclude that Abercrombie would be unduly burdened in permitting Ms. Banafa to wear a hijab at work.

This opinion is in line with that of at least two other courts that have ruled on the same issue under Abercrombie’s Look Policy (here and here).

The lessons to be learned?

1. No good comes from asking a potential employee about his or her religion during a job interview.
2. If you are going to selectively grant exceptions to work rules, your decisions will be scrutinized if later challenged in litigation, and your better have good reasons available.
3. If you hope to claim an undue hardship defense to a religious accommodation claim based on your company’s image, you need to have the hard data to back your claim. Hypothetical hardships likely will not carry the day.

[Hat tip: Chai Feldblum]

WIRTW #269 (the “roshambo” edition)

On Wednesday’s edition of DriveThruHR, Dan Schwartz challenged me to a game of Rock-Paper-Scissors to determine, once and for all, who reigns supreme in the world of employment law blogging. Dan, you’re on (and you’re going down). Just let me know when.

http://roshambo.me/

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

Discrimination

• Fired and told “your a little too old for your job,” Old Rose LOSES her age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• A Refresher Course For Employers On Retaliation — from Employment Discrimination Report
• Should Smokers be a Protected Category? — from Mike Haberman’s Omega HR Solutions
• Is It Religious Harassment To Hand Out Chocolate — from Evil Skippy at Work
• Can I Be Fired for Being Gay? — from Blogging4Jobs
• Five snips on workplace harassment (plus a bonus) — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Should You Fire Employees Who Use (or Misuse, However Defined) Social Media? — from Dan Schwartz’s Connecticut Employment Law Blog
• What’s your opinion of BYOD privacy? — from Consumerization Blog RSS
• Coping With the Rising Mobile Workforce and the BYOD Culture — from TLNT
• Internet and Email Use in the Workplace — from ERC Insights Blog
• The Duty To Preserve Social Media Information — from Social Media Employment Law Blog
• Employees who use social media are more efficient, survey says — from Ragan.com
• Law and Order: Human Resources Unit – LinkedIn Lockout — from HR Idiot

HR & Employee Relations

• Employee Theft Blacklist: What Could Possibly Go Wrong? — from Nolo’s Employment Law Blog
• Think Your Company’s Confidential Information is Safe? Think Again! — from HR Defense Blog
• Ethical failure at Rutgers: Abusive coach, bad management, questionable lawyering — from Minding the Workplace
• Cease and Desist Letters: Defamation May Not Be An Issue But Watch Out for Tortious Interference — from Trade Secret Litigator Blog

Wage & Hour

• The Employment Law You Are Probably Breaking — from Evil HR Lady, Suzanne Lucas
• High-Tech Employers Dodge Class Certification In Anti-Solicitation Antitrust Case — from Workplace Class Action Litigation
• What Happened, Dude?: Overtime Hours, Working Time, and Tracking Apps — from The Wage & Hour Litigation Blog

Labor Relations

• Quorum, Heck a Fully Appointed NLRB? — from Michael Fox’s Jottings By An Employer’s Lawyer
• Obama Re-Nominates Pearce, Names Two Others to Fill Republican NLRB — from Labor Relations Counsel
• White House to Nominate Three NLRB Members — from Workplace Prof Blog

New bill seeks to extend comp time to private employers

One question employers ask me all the time is whether they can provide employees comp time (extra time off) in lieu of overtime. For private-sector employers, my answer is always the same—no.

I am hoping, however, that I soon may have to change my answer. Earlier this week, the Working Families Flexibility Act of 2013 [H.R. 1406] was introduced in Congress.

This bill would do all of the following:

• Permit employers to provide compensatory time off, earned at the rate of 1.5 hours per hour of overtime worked, in lieu of overtime pay.
• Provide that any comp time program must be supported by a written agreement.
• Allow employers to exclude from any comp time program employees who have worked less than 1,000 hours in the prior 12 months.
• Cap the annual comp time allotment at 160 hours per employee.
• Require that employers pay out any unused comp time at termination.
• Permits employees to use comp time upon reasonable notice, unless it unduly disrupts the employer’s operations.

The FLSA already provides similar rights to public sector employers. It’s about time that the law is changed to provide the same rights to those in the private sector. I’ll keep everyone updated if there is any movement on this bill.

Bald is beautiful … unless you’re a Hooters waitress after brain surgery

Sandra Lupo took three weeks off from her job as a Hooters waitress for brain surgery. During her leave, her manager assured her that she would be able to return to work with a “chemo cap” or jewelry to distract customers from her buzz cut and large scar. Upon her return, however, Hooters changed course and told Ms. Lupo that she would have to wear a wig. When she could not comply because the wig irritated her scar, Hooters cut her hours until she was forced to quit. According to the St. Louis Post-Dispatch, she is now suing Hooters for disability discrimination.

Let’s first take care of the low hanging fruit. The insensitivity of Hooters’s reaction to this situation is easy to spot. Just because Hooters acted insensitively, however, does not mean that it acted illegally. Indeed, whether the wig requirement discriminated against Ms. Lupo is a tricky question.

The ADA protects three classes of individuals:

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

Actual Disability

Post-surgery, Ms. Lupo is going to have a difficult time claiming an actual disability. Even if her benign brain tumor was an ADA disability pre-surgery, after its removal she no longer had a current “physical or mental impairment that substantially limits one or more major life activities of such individual.” Therefore, as the 6th Circuit recently recognized in Blosser v. AK Steel Corp., a tumor that has been removed is not an actual disability. 

“Regarded as” Disability

Because of the temporary nature of her baldness, Ms. Lupo is also going to have a difficult time claiming that Hooters “regarded her” as disabled. To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental impairment, and that the impairment was one with a duration of more than six months. Thus, even if Hooters perceived Ms. Lupo as impaired because of her post-surgery appearance, that appearance would dissipate in six months with the regrowth of her hair.

“Record of Disability”

Ms. Lupo’s best claim is going to be that Hooters discriminated against her because of a “record of” an impairment. “Record of” disability claims are intended to ensure that employees are not discriminated against because of a history of disability. According to one court, “The ‘record of’ definition was tailor-made for plaintiffs who … claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it.”

Yet, Ms. Lupo’s claim under this provision of the ADA is not clean. As the Blosser court noted, when a brain tumor is temporary and resolved by surgery, and the employee is able to return to work without restriction, a “record of” disability claim fails. Ms. Lupo will have a hard time establishing this claim because of the short duration of her underlying medical condition, coupled with her return to work free of any residual medical issues. Also, if Ms. Lupo does not have a protected record of a disability, Hooters has no obligation to provide any reasonable accommodation.

While Hooters will take a beating in the press over its treatment of Ms. Lupo, it is not a slam-dunk that such mistreatment violates the ADA.

[Hat tip: Eve Tahmincioglu]

photo credit: greenfaerietree via photopin cc

28 days later? Passage of time justifies recertification of intermittent FMLA leave

The FMLA permits an employer to “require that [an] eligible employee obtain subsequent [medical] re-certifications on a reasonable basis.” The FMLA’s regulations define what constitutes a “reasonable basis.” Under the regulations, and employer cannot ask for a recertification more than once every 30 days, unless “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).”

In Graham v. Bluecross Blueshield of Tenn., the 6th Circuit recently held that the passage of time alone can constitute sufficiently changed circumstances to justify an employer’s early request for a recertification:

We agree with the district court's ruling as to the reasonableness of BCBST’s request for recertification after Graham’s 28 consecutive absences, in that they constituted “significantly changed circumstances….” As the district court observed, this period of absenteeism was twice as long as Graham’s longest previous episode in March 2007.

Because the employee failed to respond to a lawful recertification request, the leave was not FMLA leave, and the employer was entitled to consider the absences as unexcused.

Managing FMLA leave, and particularly managing intermittent FMLA leave, is one the most challenging tasks for employers. What qualifies as “significantly changed circumstances” will vary from case to case. Do not mistake this case as carte blanche to demand a recertification after every prolonged period of absence. Instead, consult with your employment counsel to determine the best course of action before your hasty actions get you in trouble under the FMLA.

A “wet one” renders him gay? 5th Circuit to reconsider same-sex harassment case

In EEOC v. Boh Brothers Constr. Co., ironworker Kerry Woods (male) asserted that his supervisor, Chuck Wolfe, subjected him to all of the following:

• Called Woods names such as “faggot” and “princess.”
• Approached Woods from behind to simulate sexual intercourse.
• Exposed his genitals to Woods numerous times.
• Accused Woods of being girlish because he used “Wet Ones” instead of toilet paper to clean himself after using the bathroom.

Neither Woods nor Wolfe is homosexual. According to the Court, the workplace was full of this type of misogynistic and homophobic epithets, and the recipients, including Woods, responded in kind.

After Woods’s termination, he filed a discrimination charge with the EEOC, claiming, among other things, same-sex harassment. In the subsequent lawsuit filed the EEOC, the jury returned a verdict in Woods’s favor, awarding him $200,000 in compensatory damages (statutorily reduced to $50,000) and $250,000 in punitive damages.

The 5th Circuit, however, reversed:

Title VII protects employees against workplace discrimination, not against all forms of mistreatment. The EEOC alleges that Woods was unlawfully harassed because he was not stereotypically masculine. Because the only evidence of non-stereotypically masculine behavior in the record is Woods’s use of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against “because of … sex.”

In other words, Woods could not establish unlawful same-sex harassment because Wolfe was not homosexual, was not hostile to men in the workplace, and worked in a single-sex workplace. The 5th Circuit left for another day the question of whether sex stereotyping is a cognizable form of same-sex harassment under Title VII.

It appears that day is upon us. Last month, the 5th Circuit agreed to rehear this case en banc.

The issue will resolve tension between two Supreme Court opinions:

• Price Waterhouse v. Hopkins, the seminal case on the illegality of sex-based stereotypes under Title VII.
• Oncale v. Sundowner Offshore Services, which permits same-sex harassment claims, but only if the harasser: (i) is homosexual, (ii) is motivated by a general hostility to the presence of the same sex in the workplace, or (iii) comparatively treated members of one sex differently than members of the other in a mixed-sex workplace.

If the 5th Circuit reverses course and permits the EEOC to pursue Woods’s claim for general same-sex harassment, it will signal a giant step towards doing that which Congress has refused—protecting sexual orientation from discrimination as a class.

[Hat tip: Workplace Prof Blog]

WIRTW #268 (the “… in a box” edition)

One of the stops my wife and I made when we honeymooned in Ireland was the Irish Jewish Museum in Dublin. Because Ireland is not necessarily known for its rich Jewish history, I joked before our trip that all we’d find at the museum was a small Plexiglas box, and that I would become the exhibit, locked inside until the next unsuspecting Jew stopped by to visit. 

Little did I know how prescient I was. The Today Show is reporting that the Jewish Museum Berlin has opened a new exhibit that is being called “Jew in the Box”:

To help educate postwar generations, an exhibit at the Jewish Museum in Berlin features a Jewish man or woman seated inside a glass box for two hours a day through August to answer visitors’ questions about Jews and Jewish life. The base of the box asks: “Are there still Jews in Germany?” “A lot of our visitors don’t know any Jews and have questions they want to ask,” museum official Tina Luedecke said. “With this exhibition we offer an opportunity for those people to know more about Jews and Jewish life.”

Yes, our country has a problem with discrimination, a lot of which is tied to some deep historical baggage. In other words, we are no different than the rest of the world.

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

Discrimination

• Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law — from Law and the Multiverse
• Calling a Co-Worker “Stupid” Not Enough to Prove “Disability”, Court Says — from Dan Schwartz’s Connecticut Employment Law Blog
• Fifth Circuit Agrees to Hear Appeal Regarding Same Sex Discrimination — from San Antonio Employment Law Blog
• Bell's Palsy Sufferer Fired Because Employer Believed That She Had A Stroke — from Employment Discrimination Report
• Straight Talk on Harassment from EEOC Regional Attorney, Robert Canino — from Texas Employment Law Blog
• Does Pre-Employment Testing Increase an Employer’s Exposure to Potential Lawsuits? — from The Emplawyerologist
• Minding Discrimination — from HR Examiner
• A Simple, Legal Way to Help Stop Employment Discrimination — from The Atlantic

Social Media & Workplace Technology

• Whom Do Social Media Followers Belong to—You, or Your Business? — from Knowledge@Wharton
• FireMe! app outs Twitter users who talk smack about their jobs — from Eric Meyer’s Employer Handbook Blog
• How To Stop Employers Digging Your Digital Dirt — from The Undercover Recruiter
• Social Media Rant by Employer Results in Retaliation Claim Added to Pending Litigation — from Michigan Employment Law Advisor
• BYOD plz — from HR idiot

HR & Employee Relations

• Hostile Environment: Porn in the Workplace – More Often Than We Know — from HR Gazette
• Being an Abusive Boss can get you Fined by OSHA — from Mike Haberman’s Omega HR Solutions
• Is It Unethical to Not Hire Smokers? — from Freakonomics
• Kim Jong-un in the workplace — from Michigan Employment Law Connection
• Should I Give References After Separation? — from Texas Employer Handbook
• Sometimes a “confidential” label doesn't hold up — from Work Matters
• Does your lawyer have to disclose your non-compete? — from Smooth Transitions

Wage & Hour

• The Dangers of Using Two Different Time Clocks — from Overtime Advisor
• How the Police Are Getting into the FLSA — from Compensation Café
• Pennsylvania Federal Court Decertifies FLSA Off-the-Clock Collective Action Against Citizens Bank — from Wage & Hour Counsel
• Obamacare for Employers in 87 Minutes — from Phil Miles’s Lawffice Space

Labor Relations

• Has The NLRB “Jumped The Shark”? — from Employment Essentials
• Court Overturns NLRB; Protects Company's Confidential Financial Information — from The Employment Beat
• Is There a Face-Off Under Way Over NLRB Decisions? — from Human Resource Executive Online

Photo credit: RustyTheDog (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons

The results are in: social media password survey

Last month, in response to the introduction of social media password legislation in the Ohio Senate, I posed a survey to gauge whether this is a problem that needs to be fixed, or an illusion created by the media.

Thanks to the hundreds who responded, I am happy to share my (very unscientific) findings, some of which are expected and some of which are surprising.

First, the not surprising. Employers are not engaging in this practice:

Has your company ever asked a job applicant or employee to provide the login or password to a social media or other online account?

• No: 90%
• Yes, an employee: 5%
• Yes, an applicant: 3%
• Yes, both: 1%

Have you ever been asked by an employer to provide the login or password to a social media or other online account?

• No: 95%
• Yes: 5%

Has your company ever denied employment, or fired an employee, because an individual refused to disclose the login or password of a social media or other online site?

• No: 98%
• Yes: 2%

It is fair to conclude that this supposed practice is not much more than an answer in search of a problem.

Nevertheless, despite the low incidence of these practices occurring, more than one-third of you still think we need this legislative answer to prohibit employers from requiring the disclosure of passwords and logins.

Do you believe that we need legislation to prohibit employers from asking or requiring individuals to disclose login or password information of social media and other websites?

• No: 64%
• Yes: 36%

How do I explain this apparent incongruence? Perhaps it’s the strong feelings that we hold about personal privacy, despite the very un-private nature of social media.

I believe that when one posts something online, that person forsakes any privacy he or she otherwise might have enjoyed in that communication. The majority of you, however, disagree:

Do you believe that employers have a legitimate interest in viewing social media accounts of job applicants before hiring?

• No: 71%
• Yes: 29%

Do you believe that employers have a legitimate interest in viewing social media accounts of employees during the term of their employment?

• No: 62%
• Yes: 38%

Do you believe that employees should have an expectation of privacy in what they post in their personal social media accounts?

• No: 45%
• Yes: 55%

As these survey results poignantly illustrate, there exists a tangible tension between the open nature of communications on social networks and personal privacy. It is going to be fascinating to watch these issues evolve over the coming years as the wall that separates the public and private continues to erode on social networks.

Can you hear me now? Unilateral deafness is not an ADA disability

I’ve long argued that 2009’s ADA Amendments Act changed the game for how employers defend disability discrimination cases. Because the ADAAA defines “disability” broadly, with the express goal of making it easy for employees to establish the existence of a protected disability, it is now exceedingly difficult for employers to win cases on summary judgment by arguing that an employee is not “disabled.” Here is the prediction and guidance I provided on this issue nearly two years ago:

Employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Because every rule is defined by its exception, I bring you Mengel v. Reading Eagle Co. (E.D. Pa. 3/29/13) [pdf].

Christine Mengel worked as a copy editor and page designer for Reading Eagle. In 2007, she became deaf in one ear following successful surgery to remove a brain tumor. 18 months later, Reading Eagle terminated Mengel’s employment as part of reduction in force. She claimed that she was included in the RIF because of her disability—deafness in one ear.

The district court disagreed, concluding that Mengel could not proceed on her ADA claim because she was not disabled.

However, Ms. Mengel only provided evidence of hearing loss in one ear rather than bilateral deafness…. Ms. Mengel failed to present evidence that her hearing loss in one ear substantially limited her hearing. She testified that her deafness in her left ear was not a distraction, and she did not mention any specific instances where her hearing loss caused a problem other than that she “didn’t hear some things.”

It is refreshing to see that courts are still examining the merits of a claim of disability, instead of glossing over it and assuming that the ADA protects all medical conditions. This case is significant because it proves the exception—that a subset of diagnosed medical conditions exists that does not qualify as an ADA-protected disability.

The key takeaway for employers, though, is to know that this subset is very small, and act accordingly when presented with an employee suffering from a diagnosed medical condition.

Deploy the Girl-Scout-cookie offensive to ward off labor unions

NewsOK reports that some employers have started banning their employees from promoting their kids’ fundraisers at work. At least one story has gone viral about a mom fired for hawking her daughter’s Girl Scout cookies to coworkers:

Tracy Lewis … was called into her boss’s office while working as a retail service manager for Bon Appetit, which provides various food services to the American University campus. Lewis claims her boss told her she was being fired for selling the cookies for her 12-year-old daughter’s Girl Scout troop out of her food cart, even though Lewis says she has done so for the past three years with no reprimand. 

This reaction may not be as outrageous as you might think. In fact, there is a great legal reason to ban Girl Scout cookie sales and other similar solicitations in your workplace. As crazy as it sounds, it might prove to be one of your best weapons against a union organizing campaign. The catch is that you need both a sufficient broad no-solicitation policy, and the enforcement of it in a non-discriminatory manner.

A lawfully drafted and sufficiently broad no-solicitation policy prohibits anyone from soliciting during work time and in work areas. To the contrary, an overly restrictive policy would either ban union-related communications on its face, or operate to treat union-related communications differently than similar non-union solicitations.

The former is easy to spot. What does the latter look like?

Consider an employer with a strict no-solicitation policy that ignores Girl Scout cookie sales or March Madness brackets. If that employer disciplines an employee for engaging in union-related solicitations, has it enforced its no-solicitation policy discriminatorily?

The answer depends on whether the exceptions are so common that they swallow the rule, or are merely isolated incidents.

• For example, in United Parcel Service v. NLRB, the 6th Circuit concluded that because employees “routinely distributed such materials as fishing contest forms, football pool material, and information about golf tournaments,” the employer could not enforce its no-solicitation rule against union-related distributions.
• However, in Cleveland Real Estate Partners v. NLRB, the same court concluded permitting occasional and sporadic distributions did not demonstrate discriminatory enforcement of a no-solicitation rule.

I am immune the charms of the Girl Scout cookie. While I love a Thin Mint as much as next person, my son has Celiac Disease, so I avoid bringing into my home glutened treated that he can’t enjoy. For the rest of you, however, consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that if a union organization drive rears its head, you will be left powerless to engage one of your key weapons—the no-solicitation policy.

photo credit: nettsu via photopin cc

Congress enacts the Americans with No Abilities Act

According to a trusted news source, Congress has enacted the Americans with No Abilities Act:

The act … is being hailed as a major victory for the millions upon millions of U.S. citizens who lack any real skills or uses.

The ANAA will:

• Prevent discrimination again the non-abled.
• Provide corporations with tax incentives to hire non-abled workers.
• Create more than 25 million important-sounding “middle man” positions in the white-collar sector for non-abled persons.

Employers best ready their businesses and HR practices for this important piece of legislation.

(Happy April Fools’ Day)

WIRTW #267 (the “may the font be with you” edition)

I’m a font geek. When I read a brief that has been drafted in Times New Roman, I get mad. It’s lazy, I think, to use a font just because you can’t figure out how to hit Ctrl-D, pick one more pleasing to the eye, and then click the “Set As Default” button.

Typography for Lawyers agrees with me:

When Times New Roman appears in a book, doc­u­ment, or adver­tise­ment, it con­notes apa­thy. It says, “I sub­mit­ted to the font of least resis­tance.” Times New Roman is not a font choice so much as the absence of a font choice, like the black­ness of deep space is not a color. To look at Times New Roman is to gaze into the void.

For the record, any document you receive under my signature will have been written in Constantia.

In which font do you draft, or are you a lazy Times New Roman writer? Leave a comment below, or tweet your answer using the hashtag #LawyerFont

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

Discrimination

• Sex(y?) Discrimination in Vegas — from Workplace Prof Blog
• Handling Complaints of Harassment Made Against Non-Employees — from Labor & Employment Law Perspectives
• Can A Corporation Sue For Hostile Work Environment, Or What Is A “Making-The-Owners-Miserable” — from Employment Discrimination Report
• The one thing an employer can do to prevent pay equity claims that’s easy, cheap, and doesn’t involve lawyers — from Employment and Labor Insider
• Sexual orientation discrimination: be ahead of the curve — from Sindy Warren
• Mandatory Employee Medical Exams — from Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Donglegate: HR Gone Wild — from Blogging4Jobs
• Survey Says: Are Facebook Profiles Fair Game for Employers? — from EmployeeScreenIQ Blog
• Social media and nonsolicitation agreements — from Work Matters
• Do You Have A Social Media Will? — from The Mac Lawyer
• Social Media’s Real Legal Issues — from HR Examiner
• BYOD: What’s Your Policy? — from Attorney at Work
• Who Owns Your Online Persona? Re: Social Media and Employment Litigation — from The National Law Review

HR & Employee Relations

• Non-competes: HR’s version of the Prenup — from Steve Boese at Fistful of Talent
• How to Conduct a Termination Meeting that Won’t Invite a Lawsuit — from i-Sight
• Your Employees Are Stealing Your Data — from Molly DiBianca’s Delaware Employment Law Blog
• Why I Don’t Fire the Jerks — from Evil HR Lady, Suzanne Lucas
• The Importance of Documentation in HR — from Mike Haberman’s Omega HR Solutions
• Lies Your Employer Tells You — from Donna Ballman’s Screw You Guys, I’m Going Home
• You’ll Get Sued Over the Office March Madness Pool? — from New Jersey Employment Law Blog

Wage & Hour

• Key Wage-and-hour Language to Have in Your Employee Handbook — from SmartHR
• The Beginning of the End for Wage & Hour Class Actions Through Arbitration Agreements? — from Dan Schwartz’s Connecticut Employment Law Blog
• Actual Duties Define Exempt Status of Managerial Retail Employees and Precludes Class Certification — from Wage & Hour Defense Blog
• Worker Misclassification: A Tough Issue, and Getting Tougher Every Day — from Workplace Insights
• Did The Earth Just Move? Comcast Suggests Individual Damage Calculations Prevent Class Certification — from The Wage and Hour Litigation Blog
• Feeling “maybe overworked” is not an FMLA “serious health condition” — from Eric Meyer’s The Employer Handbook Blog
• FMLA FAQ: How Long Can an Employer Rely on a Second or Third Opinion under the FMLA? — from Jeff Nowak’s FMLA Insights
• Employee on FMLA leave fired for “moonlighting” — from EmployerLINC

A cautionary tale on what happens when you botch a litigation hold

All the way back in October 2010, I provided 10 tips for issuing an effective litigation hold. What happens, however, if your litigation hold is not effective, or, worse yet, not issued in the first place? EEOC v. JP Morgan Chase Bank (S.D. Ohio 2/28/13) should be required reading for any company on the serious consequences that can occur from a botched litigation hold.

In this Title VII litigation, the EEOC claimed that the bank removed female employees from a mortgage call center queue and instead directed the more lucrative calls to male employees. In support of this claim, the EEOC sought the production of certain records that would show which calls an employee should have received based on their level of skill. According to the EEOC, a statistical analysis of that data would show sex discrimination. When the bank refused to produce the records, the EEOC filed a motion to compel, which the court granted for a limited period. The bank, however, could not produce certain of the records, as it had already destroyed them as the result of its routine purging of electronic records.

The court concluded that the bank’s admitted destruction of evidence was inexcusable:

Plaintiff provided Defendant with notice on numerous occasions of the need to retain the destroyed data…; these notices came immediately prior to the destruction of relevant data from the three years prior. This data likely would inform Plaintiff’s claims and Defendant’s defense….

Defendant’s failure to establish a litigation hold is inexcusable. The multiple notices that should have triggered a hold and Defendant's dubious failure if not outright refusal to recognize or accept the scope of this litigation and that the relevant data reaches beyond the statutory period present exceptional circumstances….

Defendant’s destruction of evidence under the auspices of routine purging has hampered the ease of if not the ability to uncover exactly what if anything impermissible has transpired here.

As a sanction, the court denied the bank’s motion for summary judgment and provided the EEOC with an instruction that the jury could draw an inference adverse against the bank based on its document destruction.

The importance of this lesson cannot be overstated. As soon as you reasonably anticipate litigation, you have an absolute duty to implement a written litigation hold that both instructs employees to preserve paper and electronic records relevant to the case, and suspends any automated processes that otherwise might result in the destruction of such records. If your lawyer is not having this conversation with you, it’s time to find a new lawyer. As JP Morgan Chase illustrates, the penalties for non-compliance can devastate your case.

More on retaliation for firing after complaints of third-party discrimination

Yesterday’s post on #Donglegate — the firing of Adria Richards after she tweeted her displeasure at the off-color jokes told by a pair of fellow attendees at an industry conference — created quite the debate.

On Twitter, Chris McKinney argued that I confused the questions:

Meanwhile, blog reader Kent Mannis commented that the employer should be liable because Richards was “opposing” unlawful harassment:

Richard’s employer isn’t potentially liable for what the conference attendees did, but it may be liable for what it did (e.g., retaliate against her for her complaint)…. So, does she lose protection for using social shaming as a way of opposing another harassing drip? We want employees to try (if they can) to say “stop that” to their harassers before suing; we want them to stand up for themselves. Isn’t that what Richards did? Wasn’t she protected for “opposing”?

Despite the criticism, I do not believe that my opinion that Ms. Richards’s termination is lawful is off-base. For Title VII to protect her complaints as opposition conduct, she must have a reasonable belief that she is complaining about something unlawful. Yet, Title VII does not protect an employee from a hostile work environment created by a non-employee unless the employer can exert some reasonable degree of control over the non-employee. If Ms. Richards’s employer cannot control the people about whom she was complaining, why should Title VII protect the complaints at all?

Additionally, recall that “venting” does not qualify as “opposition” under Title VII. There is a good argument to be made that Ms. Richards was not complaining about harassment or discrimination, but merely blowing off steam about the boorish behavior of some follow conference goers.

Moreover, even if Title VII protects Ms. Richards’s online venting as “opposition,” it is doubtful she will be able to establish a nexus between her comments and the termination. Her employer did not terminate her because of the contents of her tweet, but because of the very public nature of her complaints. Had she raised the issue privately with her employer, it is fair to assume that she’s still be employed and we would not be having this healthy debate.

What do you think about Ms. Richards’s termination? Eric Meyer wants you to answer a short, one-question poll and let him know whether you think her firing was fair. I can’t wait to read the results.

Should employers be liable for conduct they cannot control? Fired for tweeting about third-party misconduct

While attending a conference, Adria Richards became offended by two attendees sitting behind telling inappropriate jokes. So, she tweeted her grievance. Then, she blogged about it. Then, her employer fired her. Ars technica has the full details.

If the people about whom Ms. Richards complained were co-workers, or they made the offensive comments while in her place of employment, she would have an easy retaliation claim. The perpetrators, however, did not work with Ms. Richards, and the only relation between the alleged misconduct and her employment is the coincidence that she had the experience at a conference she was attending on her employer’s dime.

The question, then, is whether Ms. Richards can claim retaliation based on complaints about which her employer was powerless to remedy?

At his Employer Handbook Blog, Eric Meyer argues that Ms. Richards’s complaints are protected by Title VII:

If a conference attendee engaged in behavior that amounts to discrimination or sexual harassment, then Ms. Richards’s social media complaints could amount to protected activity.

Remember also that even if the law does not technically recognize the actions of which Ms. Richards complained as unlawful discrimination, to engage in “protected activity,” she need only have a reasonable belief that what she experienced was unlawful.

I disagree. For Ms. Richards to have a reasonable belief that she experienced unlawful discrimination or harassment, her employer needs to be able to do something about the alleged discrimination or harassment. What could Richard’s employer have done? It couldn’t conduct an investigation. It couldn’t discipline the alleged perpetrators. All it could do is alert the conference of the issue and suggest that Ms. Richards distance herself from the situation.

Ms. Richards did not complain about illegal discrimination. She complained about boorish behavior by two individuals completely outside of her employer’s sphere of control. I do not believe Ms. Richards’s complaints in these circumstances should be protected. To hold otherwise would hold employers accountable for the behavior of the entire world, whether or not the employer has the ability to influence the conduct or punish the misconduct. Title VII’s anti-retaliation provisions should not cast this wide of a net.

6th Circuit holds that an insurer’s “special investigators” are exempt administrative employees

One of the most difficult issues employers face under the wage and hour laws is properly classifying employees under the “administrative” exemption. Much of a difficulty comes from the FLSA’s use of the word “administrative.” Many employers confuse the exemption with the performance of administrative tasks.

The mere performance of administrative tasks, however, will not qualify an employee for this exemption. Instead, the exemption only covers salaried employees whose primary duties (1) are the performance of office or non-manual work directly related to the management or general business operations of the employer or its customers, and (2) include the exercise of discretion and independent judgment on matters of significance.

Last week, the 6th Circuit opined on the application of this exemption to an insurance company’s “special investigators” (SIs). In Foster v. Nationwide Mutual Ins. Co. (6th Cir. 3/21/13) [pdf], the court concluded that Nationwide properly classified this group as exempt administrative employee.

Nationwide’s SI investigate claims that the company’s adjusters flag as presenting certain indicators of fraud. The SIs are generally experienced investigators with prior background in law enforcement or insurance claims. The SIs work with the claims adjusters to develop a plan for the investigation, which the SIs then conduct free from any supervision. They spend most of their time investigating suspicious claims, but are not allowed to adjust claims or make any decisions on whether to pay or deny a claim.

The 6th Circuit concluded that these employees are fall under the administrative exemption:

1. The SIs’ investigative work is directly related to Nationwide’s business, as it “drives the claims adjusting decisions with respect to suspicious claims.”
2. The SIs use discretion and independent judgment on matters of significance, as they are not merely fact-gatherers, but are charged with applying those facts to resolve the indicators of fraud, and to determine whether to refer fraudulent claims to law enforcement.

The holding of this case is narrow. Unless you are an insurer or similar company employing similar Special Investigators, Foster likely will not impact your business.

This case, however, has a broader lesson to teach. FLSA exemptions are highly fact specific. Before classifying an employee, or group of employees, as exempt, you must engage in a careful analysis of all of the facts and circumstances of your business, their jobs, and how the latter impacts the former. It’s also a good idea to run your exemptions past an employment lawyer knowledgeable on these issues. Because courts give employees the benefit of any doubt with exemptions, you should not classify an employee an exempt unless it is a reasonably clear case. You may think you are saving a few pennies in overtime, but you will spend a whole lot more defending your decision in court if challenged.

WIRTW #266 (the “Reader is dead … long live Feedly” edition)

Today, I’m going to break down the 4th wall. To the outside observer, these weekly Friday roundups appear incredibly time consuming to compile. Often, I’m asked, “How do you track all of the links you post in your Friday wraps, and how long does it take you to write that post?”

The truth is that my “WIRTW” are the easiest posts I write all week. During the week, I use my RSS reader to save all of the blog posts that I find interesting from the blogs to which I subscribe. Then, it’s nothing more than cut, paste, and a little sorting to make the magic happen every Friday.

“What is RSS,” you ask? RSS stands for Really Simple Syndication. It is a web format used to publish frequently updated works—such as blog entries, news headlines, audio, and video. RSS feeds let publisher automatically syndicate content, typically through a feed reader. Users subscribe to a website’s RSS feed, and the site automatically pushes updates to the reader upon publication. In other words, instead of checking hundreds of websites each date, RSS lets me check one (my feed reader), which automatically updates every time a site to which I have subscribed publishes new content.

Up until this week, my RSS app of choice was Google Reader. Heck, I think it was the RSS app of choice of 99% of the blog-reading community. Then, tragedy struck. Google announced that it was closing Reader. My initial thought was how the heck am I going to keep writing “WIRTW” without my trusty Google Reader.

Then, I found Feedly. Feedly should be the go-to blog reading app for anyone who used Google Reader. Since Google announced Reader’s closure, 500,000 users (including me) have flocked to Feedly. Feedly was even so nice as to post an 8-step guide to migrating from Reader.

So, if you receive updated to my blog via RSS, I suggest you jump over to Feedly, import your Google Reader account through its automated process, and keep on reading as if nothing’s changed.

If you are new to the RSS game, give it a try. It will likely revolutionize how you consume Internet content. Or, you can always subscribe the old-fashioned way, via my daily email newsletter.

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

Discrimination

• Can We Be a Christian Company? — from Current Employment
• Man fired over zero-tolerance sexual harassment policy loses appeal — from West Virginia Record
• Dear Evil Skippy: Is It Harassment To Post Pictures Of The New Pope? — from Evil Skippy at Work
• Is rejecting a sexual advance, without reporting it, protected activity? — from The Employer Handbook Blog
• When Bad Things Happen to Good Employers: An Equal Employment Opportunity — from HR Defense Blog
• Can Body Odor Fall Under Religious Protection? — from Evil HR Lady
• Is the EEOC Really Out to Force Employers to Hire Applicants with Criminal Histories? — from The Emplawyerologist
• Survey Says: Criminal Records Aren’t Automatic Disqualifiers for Employers — from EmployeeScreenIQ Blog

Social Media & Workplace Technology

• Don’t Ignore The Risks Of BYOD Programs — from Employment Law Watch
• Court: Hijacking ex-employee’s LinkedIn account violates PA law — from Ars Technica
• More Trouble With Work-Related Social Media Accounts — from Socially Aware Blog
• Ex-BP Engineer Accused Of Deleting Voicemails — from The Huffington Post

HR & Employee Relations

• Non-competes: HR’s version of the Prenup — from Fistful of Talent
• Office Pools in Connecticut: Jump In? Maybe — from Connecticut Employment Law Blog
• Mediating Non-Compete Disputes in the Medical Device Industry — from Non-Compete and Trade Secrets
• Electronic Cigarettes in the Workplace — from Minnesota Employer
• Employees: You Have The Right To Say No — from Screw You Guys, I’m Going Home
• Workplace Investigations: Assessing Witness Credibility from WinWinHR
• Firing for insubordination – the right way — from HR Cafe

Wage & Hour 

• Supreme Court Rejects Plaintiff’s Attempt to De-CAFA-nate Class Action Lawsuit — from The Wage and Hour Litigation Blog
• Court Rules That Third Party Administrators Can Be Held Liable for FMLA-Related — from FMLA Insights

Labor Relations

• Can’t Say You’re Coming in if You’re Going to Strike — from Labor & Employment Law Perspectives
• NLRB Lightens Grip on At-Will Language in Employer Handbooks? — from Labor Relations Institute

How NOT to respond to a harassment complaint

An employee walks into your office and makes the following statement: “During my interview for a promotion, the CEO asked me about Asian massages and happy endings. I didn’t get the promotion, and now I feel that I was sexually harassed.”

What do you do?

1. Launch an immediate investigation into the CEO’s comments, and take the prompt, remedial action necessary to ensure he doesn’t recidivate?
2. Ignore the company’s written harassment policy and trust your “intuition and instinct” to conclude that nothing needs to be done?

If you chose #1, you would have acted prudently and within the law to exercise your responsibilities under Title VII and to protect your company from liability for sexual harassment. If you chose #2, as the employer did in Volland v. Mobile Mini (D. Ariz. 7/16/12), you would cost your company a chance at having the case dismissed on summary judgment, resulting in a costly and risky jury trial, or expensive settlement.

That’s how not to respond to a harassment complaint.

But, do you know what you should do when that complaint lands on your desk? Here are 8 steps you should be taking.

1. If you are not the person in your organization trained to address and investigation these situations, immediately refer the matter to the person who is. If no one is, hire a consultant or attorney who specializes in these issues to do the investigation for you. One word of caution. If you hire an attorney to do the investigation, do not make the mistake of assuming that the investigation will be privileged. It likely won’t be.
2. Separate the complaining employee from the accused harasser. If that means you need to send someone home, with pay, while you complete the investigation, so be it. Better you eat a few days pay than risk the accused making matters worse by harassing again.
3. As soon as possible, interview the complaining employee (or, if someone else made the complaint, the victim), the accused, and any witnesses.
4. Compile and review any pertinent documents. Don’t forget social media accounts, email, and text messages. They are your best friends in these cases.
5. Guard against retaliation, and ensure all employees that their participation will be free of retaliation.
6. Review all information and make a reasoned decision as to the credibility of those involved and what happened.
7. Take prompt and effective remedial action, and communicate your conclusions to the complaining employee.
8. Document the investigation.

Following these steps will go a long way to minimizing your company’s potential liability for harassment claims. Additionally, you will foster a work environment in which your employees know that harassment is not condoned, and misconduct is promptly investigated and resolved.

This post originally appeared on The Legal Workplace Blog.

Accommodating disabled job applicants is no game

When we think of employers’ reasonable accommodation obligations under the ADA, we usually think in terms of accommodating current employees. The ADA, however, equally extends this obligation to job applicants.

A recent lawsuit filed by the EEOC against Toys “R” Us illustrates this issue:

The EEOC charged that Shakirra Thomas, who is deaf, applied for a team member position at the retailer’s Columbia, Md., store in October 2011. Thomas communicates by using American Sign Language, reading lips and through written word. When the company contacted Thomas to attend a group interview, Thomas’s mother advised that Thomas was deaf and requested the company to provide an interpreter for the interview. The retailer refused and said that if Thomas wished to attend a group interview in November 2011, then she would have to provide her own interpreter, the EEOC alleges.

Thomas’s mother interpreted for her during a group interview, but the company refused to hire Thomas despite her qualifications for and ability to perform the team member position, with or without a reasonable accommodation, the EEOC said in its lawsuit.

What is the takeaway for employers? Don’t conflate the need for a job-related accommodation with an interview-related accommodation. If a job applicant need an accommodation to complete the interview process, and it does not impose an undue burden, provide it. If it turns out that someone cannot perform the essential functions of the job even with an accommodation, you are within your rights to deny employment. You cannot make that determination, however, unless you consider them for the job first.

At least we’re not France

I like France. I like French fries, French toast, and French wine (although not necessarily all at the same time). Today, I have another reason to like France. It has provided a fabulous reality check. No matter how bad off we believe labor relations are in this county, at least we don’t have the problems the French do.

From USA Today:

A law working its way through [the French] parliament would grant amnesty to workers who have ransacked their company's offices or threatened their bosses during a labor dispute…. In the next few weeks, the bill will be taken up by parliament's lower house, the National Assembly, where parties on the left have a substantial majority.

The amnesty would apply to people who caused property damage, issued threats or defamed management during a labor or housing dispute over the last six years, and were sentenced to five years in prison or less. Acts that caused physical harm to someone else would not be covered.

I've spilled a lot of digital ink railing against the pro-union agenda of the National Labor Relations Board. I’m not saying I’m going to stop. But, stories like this one at least make me grateful that my clients aren’t French.

See Me, hear me: Upcoming speaking engagements

Every now and then, I like to update everyone where you can see or hear me wax poetically on all things employment law.

Let’s start with tomorrow (March 19), when I’ll make my triumphant return to DriveThruHR, one of the web’s most popular radio shows discussing human resources. You can listen live at  1 pm on Blog Talk Radio or on DriveThruHR.com. You can also follow the conversation on Twitter @drivethruhr and with the hashtag #dthr.

Here’s what else I have planned through the summer:

• On April 11, I’ll be presenting Think Before You Click: Strategies for Managing Social Media in the Workplace for HR.com. It is a free webinar to all registered HR.com members (which itself is free). Registration information is available here.

• On April 23, I’ll in Chicago presenting, Is it Legal? Managing Legal Risks while Working with Legal to Build a Flexible Social Media Policy, at GSMI Social Media Strategies Summit. Information on the conference, including resigstration, is available here.

• On April 25, I’m at the Cleveland Metropolitan Bar Association 13th Annual Northern Ohio Labor & Employment Law Conference. I’ve been tasked with what I consider the Keynote, entitled, Federal and State 2012 Employment Law Update: Is Your Client Ready for This?

• Finally, I’m in NYC on July 31, presenting at the ACI Employment Discrimination Conference as part of a panel entitled, Social Media and Employment Law: Best Practices for Establishing a Social Media Employee Policy and Minimizing Exposure to Employment Litigation Arising from the Use of Social Media.

You can also keep up to date on where I am appearing throughout the year at the Speaking Engagements link at the top of the page. The page also indexes all of my old gigs.

If you are in attendance at any of the live events, please stop by and say hello.

Paying employees for accrued vacation upon termination—Yay or Nay?

One of the questions clients most frequently ask me is whether they have an obligation to pay employees for accrued, unused vacation days at the end of their employment. My default answer always is, “It depends. What does your handbook or vacation policy say?”

Under Ohio law, the default rule is as follows.

• If an employer has no policy under which an employee forfeits unused vacation time or other paid time off at the end of employment, an employer must pay out any unused time.
• If, however, an employer has a clear policy providing that paid vacation time or other paid time off is forfeited on resignation or discharge, then an employer is not obligated to pay out any unused time upon termination.

What does a policy look like that entitles an employer to withhold accrued, unused vacation time or other paid time off as a forfeiture at the end of employment? The employer in Broadstock v. Elmwood at the Springs (Ohio Ct. App. 3/15/13) [pdf] had the following policy:

When a team member leaves Elmwood, all accrued vacation time is paid to the end of the last pay period provided the team member requests the pay; a two (2) week notice is given and fulfilled; an exit conference has been conducted; all items (keys, uniforms, badges) have been returned; and the team member has not been terminated. (Emphasis added.)

According to the court, the employee handbook clearly stated that accrued vacation is forfeited to an employee upon termination. The employee was terminated. Therefore, the court held that the she was not entitled to her accrued vacation time.

To me, however, such as policy is draconian and overbearing. Instead, consider limiting vacation and other paid time off forfeitures to “for cause” terminations. In that case, you won’t benefit employees who lose their jobs because through their own misconduct, but you also won’t be punishing employees who lose their jobs through no fault of their own (i.e., downsizing, restructuring, etc.).

WIRTW #265 (the “Ides of March” edition)

Caesar:
Who is it in the press that calls on me?
I hear a tongue shriller than all the music
Cry “Caesar!” Speak, Caesar is turn’d to hear.

Soothsayer:
Beware the ides of March.

Caesar:
What man is that?

Brutus:
A soothsayer bids you beware the ides of March.

Julius Caesar Act 1, scene 2, 15–19

Today is March 15, the ideas of March. Two years ago, I used this day’s history to provide a lesson to employers of 10 types of problem employees to avoid in your workplaces. It’s worth reviewing.

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

Discrimination

• When Pregnancy Disability Leave Is Not Enough — from Hunton Employment & Labor Law Perspectives™
• Re-Visiting Leave as a Reasonable Accommodation Under the Americans with Disabilities Act — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Dear Evil Skippy: Is A Visit From Ellen’s Underwear Model Workplace Harassment? — from Evil Skippy at Work
• Applications and convictions: A new proposal — from John Holmquist’s Michigan Employment Law Connection
• Background Checks and the EEOC: Navigating the Minefield — from The Emplawyerologist
• “How Not To Handle A Sexual Harassment Charge”—A Case Study Involving The Mayor Of Toronto — from Employment Discrimination Report
• An EEOC complaint is not your free pass to goof off at work — from Eric Meyer’s The Employer Handbook Blog
• 3 Ways to Avoid Employment Discrimination Claims in 2013 — from i-Sight

Social Media & Workplace Technology

• Are You Googling Job Candidates? When You Do, Everyone Loses — from TLNT
• Nuts and Bolts for Terms Commonly Used in Trade Secret Computer Forensic Investigations — from Trading Secrets
• EEOC Sanctioned for Failure to Produce Social-Media Evidence — from Molly DiBianca’s Delaware Employment Law Blog
• When your company wants to hijack your social media accounts — from Ask a Manager
• Productivity and Technology – A Marriage Made in Heaven? Maybe Not from netWORKed Lawyers

HR & Employee Relations

• A Culture of Work or a Culture of Clock? — from Mike Haberman’s Omega HR Solutions
• You Don’t Always Have to Give Two Weeks Notice When Leaving Your Job — from Lifehacker
• More and More Workers Demanding Paid Sick Days — from Workplace Fairness
• Do you allow smoke breaks? — from The Tim Sackett Project

Wage & Hour

• Dog Days (of Winter) are Over: Audits for Worker Misclassification On Increase  — from Dan Schwartz’s Connecticut Employment Law Blog
• The Attack of the Unpaid Interns — from Overtime Advisor
• Are Journalists Exempt From Overtime? — from Donna Ballman’s Screw You Guys, I’m Going Home
• If You Complain To Your Employer About Overtime Pay Violations, Are You Protected From Retaliation? — from Overtime Lawyer Blog
• 5 Things You Need to Know about Hiring Contractors — from Evil HR Lady, Suzanne Lucas
• 20 Years Later, is FMLA Working? — from Stephanie Thomas at Compensation Café

Labor Relations

• NLRB to Seek SCOTUS Review of Noel Canning — from Phil Miles’s Lawffice Space
• NLRB Lightens Grip on At-Will Language in Employer Handbooks — from The National Law Review

Do employees have any privacy rights in personal emails sent from corporate accounts?

Earlier this week, a story broke reporting that Harvard University surreptitiously viewed the work emails of 16 residential deans as part of its investigation into a cheating scandal. Your level of outrage at Harvard’s investigation will depend entirely on the degree to which you believe employees have an expectation of privacy in a corporate email account.

According to U.S. v. Finazzo (E.D.N.Y. 2/19/13), employees enjoy no such expectation of privacy, provided that you have the right language in your email policy.

In Finazzo, the U.S. government alleged that Christopher Finazzo, an executive at the clothing retailer Aéropostale, received illegal kickbacks from transactions between his employer and one of its vendors. During an unrelated internal investigation, Aéropostale discovered an email in Finazzo’s Aéropostale email account between him and his personal attorney. That email contained a list of Finazzo’s personal assets, which included several companies he co-owned with the vendor from whom he received the illegal kickbacks.

In his subsequent federal criminal trial, Finazzo attempted to block the government from using that email against him. The trial court denied his motion, holding that he had no expectation of privacy in his work email account.

In reaching this conclusion, the federal court relied upon Aéropostale’s email policies, which stated:

Except for limited and reasonable personal use (e.g., occasional personal phone calls or e-mails), Company Systems should be used for Company business only. Any limited exceptions to this rule must be approved through the IT department. Under no circumstances may Company Systems be used for personal gain or profit; solicitations for commercial ventures; religious or political issues; or outside organizations. Company Systems may not be used to distribute chain letters or copyrighted or otherwise protected materials….

You should have no expectation of privacy when using Company Systems. The Company may monitor, access, delete or disclose all use of the Company Systems, including e-mail, web sites visited, material downloaded or uploaded and the amount of time spent on-line, at any time without notification or your consent.

The court concluded that Aéropostale’s policy, and Finazzo’s knowledge of it, disposed of any claim  that the email exchange with the personal attorney was private and therefore privileged:

Finazzo has no reasonable expectation of privacy or confidentiality in any communications he made through his Aéropostale e-mail account. Aéropostale had a clear and long-consistent policy of limiting an employee's personal use of its systems, reserving its right to monitor an employee's usage of the system, and making abundantly clear to its employees, including Finazzo, that they had no right to privacy when using them.

Do you have an email or workplace technology policy? Do your employees know that you have such a policy? Does  your policy—

1. Warn employees that they have no expectation of privacy in corporate emails or in their use of corporate systems?
2. Ban personal use of corporate systems or email, or limit such personal use to what is reasonable and occasional?
3. Reserve the right of the company to monitor employee use of its systems, including emails?

Following these simple steps will go a long way to dispelling any idea by your employees that their work email is private, while providing you sufficient coverage lest anyone challenge your ownership of employee corporate emails and or your right to search such emails.

Take a pregnant pause before firing that pregnant worker

Two pregnancy discrimination settlements recently announced by the EEOC illustrate the added risk employers assume when firing a pregnant worker.

• In the first case, a Chicago-based childcare center paid $31,000 to settle allegations that it had forced a pregnant employee to quit by refusing to allow her to work after her fourth month of pregnancy.

• In the second case, a Detroit-area hotel paid $27,500 to settle allegations that it had fired a housekeeper out of fear of potential harm to the development of her baby.

Last week, I wrote about whether an employer should choose to litigate a case or settle early. One consideration I did not cover, perhaps because it seems like common sense, is that the merits (or lack thereof) of the case can be a driving factor. In discussing the case involving the childcare center, the EEOC’s Chicago regional attorney underscored this important factor: “Really early resolution of this case—before any depositions were taken created a win-win situation for everyone. This employer avoided investing in litigation expenses which would not have yielded a different result and was able refocus on its business in a hurry.” Given the risk presented by these cases and the relatively low value settlement payments, it’s hard to argue with his opinion on the value of early resolutions.

Firing a pregnant employee is a risky proposition. You not only have to worry about Title VII, but also potential liability under the FMLA (if you are large enough to be covered), and the ADA (if the employee suffers from a pregnancy-related medical condition). Unless you want to face a settle-or-litigate Hobson’s choice, you need to think long and hard before firing, or taking any other adverse action against, a pregnant worker.

What do you do if you doubt an employee’s disability?

An employee asks you for time off and other accommodations for anxiety attacks. Do you—

1. Confirm her diagnosis and meet with her to decide the right accommodation to enable her to perform the essential functions of her job; or
2. Counter her claims with skepticism, fail to grant her leave or other accommodations, and fire her?

A Los Angeles waste disposal company chose option number 2. According to Judy Greenwald at businessinsurance.com, that choice cost the company a $21.7 million jury verdict.

I hope that I don’t have to lecture any of my readers about what is wrong about denying accommodations and firing disabled employees.

What rights do you have, however, if you doubt the legitimacy of an employee’s claimed disability? Here are six tips, culled from the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act:

• If an employee’s claimed disability is not obvious, an employer is entitled to receive “reasonable documentation” about the disability and its functional limitations.

• If an employee’s claimed disability is obvious, however, an employer cannot ask for any confirming documentation.

• Reasonable documentation means only that which is needed to establish that an ADA disability that needs a reasonable accommodation. Thus, in most cases an employer cannot request an employee’s complete medical records. If  an employee has more than one disability, an employer can request information pertaining only to those that require reasonable accommodation.

• An employer may require that the documentation about the disability and its functional limitations come from an appropriate health care or rehabilitation professional.

• An employer can ask an employee “to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.”

• Instead of requesting documentation, “an employer may simply discuss with the person the nature of his/her disability and functional limitations.”

Are employers really asking for social media logins and passwords? [survey]

Last month, I discussed the recently introduced Ohio Senate Bill 45, which would prohibit employers “from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.” As I’ve earlier noted, this bill has many problems. One of its biggest problems, though, is whether an issue even exists that this type of legislation needs to address.

Last week, the Senate’s Commerce & Labor Committee heard sponsor’s testimony on the bill. Gary Daniels, the Associate Director of the ACLU of Ohio, was among those who testified in favor of this bill.

Mr. Daniels’s testimony (which you can download in its entirety here), includes his unsubstantiated belief that this legislation is necessary to combat the “disturbing trend … developing across the country whereby prospective and current employers demand access to usernames and passwords….”

You would think that if the practice of employers requiring applicants and employees to disclose login and password information has reached epidemic proportions, I would have heard of or encountered at least one employer engaging in this practice. I haven’t. At his Connecticut Employment Law Blog, Dan Schwartz calls these password privacy bills “an answer in search of a problem.” I think Dan is spot on. Yet, is it possible that we are that far off-base, and the ACLU is correct?

Since my last survey (on the FMLA) worked out so well, I decided to try again. I’d like to gauge public opinion on whether employers are insisting on social media logins and passwords, or if this is an illusory problem trumped up by the news media and special interest groups.

Please take a few minutes to answer a short survey on your opinions about and personal experience with these issues. I’ll keep the survey open through March 22, and publish the results the following week.

You can answer the survey embedded below, or the survey is also available at this link. I thank you in advance for the few moments of your time in responding.