WIRTW #281 (the "is it live or is it Memorex" edition)

Earlier this week, I appeared on Huffington Post Live, in a segment discussing discrimination laws, at-will employment, and the rights of employers to terminate employees. If you missed it live, here’s your chance to see me live and in Internet-buffered color:

Also, if you missed this month’s Employment Law Blog Carnival, hosted by Robin Shea, it is worth a trip down Route 66 to read the best employment-law posts from the past month.

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

Discrimination

• Roadmap for Responding to an Employee’s Request for Religious Accommodation — from Employment Law Lookout
• What Do You Mean I Can’t Ask That Question????!!!! — from The Emplawyerologist
• Boss fired breast-feeding mother: Was it pregnancy discrimination? — from HR Café
• Dear Evil Skippy: Was It Harassment For My Supervisor To Give Me A Massage? — from Evil Skippy at Work
• Court Resists “Irresistible” Employee’s Lawsuit... Again — from Phil Miles’s Lawffice Space
• Beware the Dark Side: “But For” Doesn’t Mean “Sole Cause” In Retaliation Claims — from Donna Ballman’s Screw You Guys, I’m Going Home
• What Exactly Does Vance v. Ball State University Mean to Employers? — from Employment & the Law

Social Media & Workplace Technology

• How 3 NFL players’ mea culpa will improve your social media policy — from Eric Meyer’s The Employer Handbook Blog
• You, Too, Can Move Your Company Into the Cloud — from Harvard Business Review
• What Are Your Rights to Life, Liberty and the Pursuit of Privacy? — from The Sociable Lawyer Blog
• Security is Key to “BYOD” Policies — from Pennsylvania Labor and Employment Law Blog
• BYOD: Do You Feel Lucky? Well, Do Ya Punk? — from Ride The Lightning
• Employers, Facebook, and the SCA Do Not a Love Triangle Make — from Molly DiBianca’s Delaware Employment Law Blog
• Service of Process Via Social Media – a Comparative Approach — from Augmented Legality
• What happens to your smartphone after it’s stolen — from The Verge
• Electronic media use policies must be applied evenly and consistently — from EmployerLINC

HR & Employee Relations

• Top Ten Things to Consider When Drafting A Non-Compete Agreement — from Trade Secrets & Non-Compete Blog
• Would You Hire Someone With a Visible Tattoo? — from hr bartender

Wage & Hour

• When using temps, make sure temp agency retains control of employment relationship — from Business Management Daily
• Why Interns Are Suing ‘Saturday Night Live,’ Hollywood, and Other Dream Employers — from Businessweek
• Sixteen Types of Wage & Hour Records Employers Need to Keep — from Dan Schwartz’s Connecticut Employment Law Blog

Labor Relations

• NLRB General Counsel Keeps Unfriending Employer Social Media Policies — from Employment Law Watch
• “Nuclear Option” Averted (For Now), NLRB Likely To Reach Full Strength Soon — from Labor Relations Institute
• NLRB Truth: 10 Reasons Why the National Labor Relations Board Matters — from Workplace Fairness
  
  
  
  
  
  
  
  
  
  
  

Ohio Supreme Court strikes blow to class action lawsuits

In recent terms, the U.S. Supreme Court has shown some hostility to class action lawsuits. 

• In Wal-Mart v. Dukes, the Court concluded that a district court must examine the underlying merits of a claim to determine if class certification is appropriate, and that a class must have some glue binding disparate decisions to justify certifying all of those decisions for consideration in one class. 
• In Comcast v. Behrend, the Court expanded upon Dukes by concluding that a class that requires individualized proof to establish damages for each class member cannot survive as a class action.

The impact of these two decisions might to send class litigants, if possible, to state court. Dukes and Comcast are federal decisions under Federal Civil Rule 23. If a state’s class-action-certification rules are more lenient, then the class’s attorney will do whatever it takes to keep the class in state court. 

Yesterday, however, the Ohio Supreme Court made this strategy much more difficult. Stamcco, LLC v. United Telephone Co. of Ohio [pdf], is not an employment case. It involves allegations of cramming — claims that the defendant added unauthorized charges the class members’ telephone bills. Yet, this case has huge implications for how all class actions are litigated under Ohio law, including classes alleging, for example, violations of Ohio’s employment discrimination or wage and hour laws.

With extensive citations to, and discussion of, Dukes, the Court held:

At the certification stage in a class-action lawsuit, a trial court must undertake a rigorous analysis, which may include probing the underlying merits of the plaintiff’s claim, but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.

Implicitly adopting the logic of Comcast, the Court also held:

We now recognize that the need for individualized determinations is dispositive in concluding that the class does not comport with Civ.R. 23.

Rejecting the plaintiff’s claim that a court could apply a simple formula to data provided by the defendant to determine each member’s claim, the Court concluded that this case cried out for individualized determinations:

Unauthorized third-party charges are better resolved on an individual basis with the third party or UTO. UTO’s phone bills identify third-party charges, the entity responsible for the charge, and a toll-free number for billing inquiries. Moreover, UTO claims that it has a policy of removing third-party charges for the purpose of maintaining good will with its clients. Finally, for larger charges or where the charge cannot be resolved over the phone, small-claims court is also an option. Accordingly, because ascertaining whether third-party charges are authorized will require individualized determinations, common issues do not predominate.

One could apply the same logic to wage and hour claims. If an employer has, for example an open-door policy, and will consider providing redress to employees on a case-by-case basis for complaints about missing wages, one cannot apply a simple formula to calculate class-wide damages. Moreover, while the plaintiffs’ bar will lose their minds over the idea of small-claims court, it remains a viable option for employees to inexpensively litigate their right to missing wages. The $3,000 limit for small claims will cover the vast majority of individual wage and hour claims.

Stamcco is a huge victory for Ohio businesses. It is now that much harder to establish a class action, confirming that Ohio’s class-action rules fall in line with their federal counterparts.

Who owns personal email on an employer-issued smartphone?

The following scenario is playing out in companies all over America. A company issues a smartphone to an employee. The company owns and pay for the device, but allows the employee to use the device for personal reasons, including accessing a personal email account, such as Gmail. The employee returns the phone, but does not first erase her personal email from the device. Is it legal for the employer, who owns and pays for the phone, to access the employee’s personal email account after the device’s return?

According to Lazette v. Kulmatycki (N.D. Ohio 6/5/13), the answer is no. In Lazette, the facts alleged are significantly worse than my fact-pattern above. After Lazette returned the phone, her supervisor, over the course of 18 months, surreptitiously read 48,000 of Lazette’s personal emails, including those involving her family, career, financials, health, and other personal matters.

The meat of the decision concerns whether the employer violated the Stored Communications Act (although Lazette also brought federal- and state-law wiretap claims, and common law claims for invasion of privacy and intentional infliction of emotional distress. The Stored Communications Act prohibits the unauthorized access of personal email and other Internet accounts. Think of it as an anti-wiretapping law for the Internet. The court refused to dismiss the Stored Communications Act claim, concluding that Lazette had pleaded sufficient facts in her complaint for the case to proceed to discovery. if you are at all interested in the SCA, what it covers, and how it works, I commend this case to your reading list.

Aside from the legal intricacies of the Stored Communications Act, this case raises important practical considerations about the risks companies are taking via the use of mobile devices at work. Smartphones aren’t going away. Indeed, if you’re anything like me, it’s become more of an appendage than a phone. So, how should companies manage the risks of these devices under increasing judicial scrutiny and application of the Stored Communications Act? Let me offer three practical tips:

1. Draft a policy. Under the Stored Communications Act, personal data is sacred. Telling employees that they do not have any expectation of privacy in company-owned mobile devices might not save you from a Stored-Communications-Act claim if one employee surreptitiously accesses another employee’s personal email account. For sure, have a policy that spells out an employee’s reasonable lack-of-privacy expectations, but have a similar policy statement prohibiting employees from accessing the personal email or other Internet account of others.
2. Wipe the device. Curiosity might have killed the cat, but you shouldn’t let it kill your company. Left to their own devices, people will snoop. Don’t give them the opportunity to do so. When a mobile device is returned by an employee, wipe it clean of all personal information and data.
3. But, quarantine it first. I suggest, however, that before you wipe a device you pause to make sure that you don’t need any data on the device. Once it’s wiped, it’s going to be very hard, if not impossible, to recover that data. Are there pending lawsuits for which data on that phone might be discoverable? If so, you better save it until you can determine what, if anything, needs to be preserved or produced. Are you concerned that the ex-employee might have been talking to a competitor or walked off with your trade secrets or other confidential or proprietary information? if so, you better check the phone to see if there is any evidence you can use to build your claim before you wipe it clean.

(Hat tip: Privacy & Information Security Law Blog)

The one thing you can never release in a settlement agreement

Legal disputes end in one of two ways—either with a judgment by a court or an agreement between the parties. The vast majority of cases follow the latter course.

When parties enter an agreement to settle a dispute—either in a settlement agreement ending litigation or a severance agreement ending one’s employment—the goal is to release all claims brought, or that could have been brought. An employer is paying the employee, in part, for the certainty that the employee will not file other claims against it in the future for past acts. Thus, these agreements typically contain general releases, along with covenants not to sue.

Do not, however, make the mistake of including in your agreement a covenant forbidding the employee from filing a discrimination charge with the EEOC or other agency. The EEOC will view such a provision as retaliatory under Title VII.

Last week, the Agency announced that it had reached a settlement with Baker & Taylor over claims that the company “violated Title VII by conditioning employees’ receipt of severance pay on an overly broad, misleading and unenforceable severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC.” The EEOC alleged that the company required employees “to sign a release agreement that could have been understood to bar the filing of charges with the EEOC and to limit communication with the agency” in order to receive their severance pay.

The offending provisions (taken from the EEOC’s Complaint) were as follows:

• “I further agree never to institute any complaint, proceeding, grievance, or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, country, or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company, the Severance Pay Plan, and/or any other occurrences up to and including the date of this Waiver and Release, other than for nonpayment of the above-described Severance Pay Plan.”

• “I agree that I will not make any disparaging remarks or take any other action that could reasonably be anticipated to damage the reputation and goodwill of Company or negatively reflect on Company.  I will not discuss or comment upon the termination of my employment in any way that would reflect negatively on the Company. However, nothing in this Release will prevent me from truthfully responding to a subpoena or otherwise complying with a government investigation.”

How could this problem have been avoided, while still providing the employer relative certainty that it will not have future legal dealings with the releasing employee? A simple disclaimer tacked onto the back-end of the release language, stating that nothing in agreement prevents, or is intended to prevent, the employee from filing a charge of discrimination with the EEOC, or with a state or local civil rights agency. You can couple that language with a covenant providing that in the event that the employee files such a charge, the employee disclaims the right to seek or recover money damages from such a filing.

With this language, the employee retains the right to file a charge (minus damages), the EEOC retains the right to seek redress of civil rights violations, and the employer retains peace of mind that the employee has signed as strong of a release as Title VII allows.

Fight the power! A timeless lesson on employee relations from "What's Happening!!"

As I settled in for a quiet Friday night in front of the TV, I stumbled upon one of my guilty pleasures — “What’s Happening!!” If your unfamiliar with this late 70s sitcom gem, it tells the story of three high-school friends growing up in the Watts section of Los Angeles, Raj, Dwayne, and Rerun, along with Raj’s pest of a little sister, Dee, their strong-willed single mom, Mabel, and the wise-cracking waitress at the local diner, Shirley.

The episode upon which I stumbled is called One Strike and You’re Out. It’s not as good as the classic “Doobie Brothers” episode, but, beggars can’t be choosers, right?

Here’s the synopsis, courtesy of Wikipedia:

Rerun being fired from the supermarket is the last straw for Raj, who rallies the rest of the workers to take some action against their boss Mr. Pronson. However, when the staff goes on strike, Raj finds himself in a jam, since Mama has lost her job and the family now has no source of income.

Enjoy this little slice of sitcom history, which teaches the important and timeless lesson that appearances aren’t always what they seem with your employees, what motivates their actions might not be what you think, and employees have lives outside of work that can, and often do, impact how they behave on the job.

Part One:



Part Two:

WIRTW #280 (the “has it been a year already” edition) #blawg100

The ABA Journal is, again, seeking nominations for its list of the 100 best legal blawgs, the “Blawg 100.” The nomination process is simple. Go here and answer a few simple questions touting your favorite blawgs. If you are so inclined, please take a few moments between now and August 9 to show some love for the blawgs you regularly read. If you take a look at this week’s list of links below, you’ll get a flavor for some the blawgs I’ll be nominating.

Also, I cannot let the week go by without giving a huge thank you to fellow blawger, Phil Miles, who, at his Lawffice Space blog, posted a review of my book, The Employer Bill of Rights. Phil’s words are much appreciated. The best compliment anyone can pay a lawyer is that you don’t write like a lawyer. Phil, from one to another, thanks.

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

Discrimination

• Is Obesity a Disability? — from WSJ.com: Law Blog [Thanks for the link to my earlier post]
• Obesity as a workplace disability? One court bucks the trend and says no. — from Eric Meyer’s The Employer Handbook Blog
• Gays And Lesbians Turn Fight To Workplace Discrimination Ban — from NPR’s All Things Considered
• No Brazilian Wax, No Job — from Phil Miles’s Lawffice Space
• An Employee Is Stealing Company Documents … That Can’t Be Protected Activity, Right? — from Trading Secrets
• The SCOTUS Decisions Every Employee Should Be Talking About — from Harvard Business Review
• Whole Foods Revises Its English-Only Policy — from Employer's Law Blog [background here]

Social Media & Workplace Technology

• Is a Candidate’s Profile Picture Worth a Thousand Words? — from EmployeeScreenIQ Blog
• The 2013 Social Media Landscape — from Social Media Today
• What Google Glass Means for Workplace Policy — from Mashable
• School board axes law firm after attorney’s viral video rant — from ABA Journal Daily News
• Are “Sent From My Phone” Signatures Useful or Annoying? — from Lifehacker
• Happy Birthday George Orwell, here's your surveillance society — from The Verge
• Common Law Invasion of Privacy Claims in Social Media — from Augmented Legality

HR & Employee Relations

• Restaurant Wars: Restrictive Covenants for Chefs & Tandoori Chicken Tikka — from Dan Schwartz’s Connecticut Employment Law Blog
• An Introduction to Background Checks for Employers — from ERC Insights Blog
• A cautionary tale about out‑of‑state telecommuting — from EmployerLINC
• Is bullying in the workplace legal? — from Mike Haberman’s Omega HR Solutions

Wage & Hour

• The Last Word: In Defense of Unpaid Internships — from Rick Bell at Workforce.com
• Supremes' DOMA decision may simplify some spousal FMLA administration — from Robin Shea’s Employment and Labor Insider
• The Questions to Ask Before Adopting an ESOP — from You’re the Boss Blog
• FLSA Status of Mortgage Loan Officers Remains Unsettled — from Minnesota Employment Law Report
• The “Fluctuating Work Week” — An FLSA Mirage — from New York Labor and Employment Law Report
• Are Mortgage Loan Officers Exempt or Non-Exempt? That's an Excellent Question. — from Wage & Hour Defense Blog
• Avoiding Court by Calculating “Regular Rate of Pay” the Right Way — from Blogging4Jobs
• Failing to Recognize an Employee's Need for FMLA Leave Can be A Costly, Painful Mistake — from Jeff Nowak’s FMLA Insights

Labor Relations

• Supreme Court to Consider Labor Issues Next Term — from Washington D.C. Employment Law Update
• Does Your Email Policy Pass Muster? New NLRB Decision Offers Guidance — from Labor & Employment Law Perspectives
• No Changing of the Guard: NLRB Continues to Uphold Policies Barring Union Use of Employer Email Systems — from Labor Relations Counsel
• NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected — from Labor Relations Update

The long and short of height discrimination under the ADA

A couple of week ago I wrote about why the ADA likely protects against obesity as a disability (thank you Wall Street Journal Law Blog for the linkage).

If the ADA is starting to protect physical characteristics such as weight, what about height? McElmurry v. Arizona Dept. of Agriculture (D. Ariz. 6/11/13) offers some guidance, and employers will not be happy about it.

Barbara Joy McElmurry, 4'10" tall, worked for the Arizona Department of Agriculture as a lab technician fighting the Asian citrus psyllid. Her job consisted of screening traps set by her co-workers in the field. Over time, tension developed between McElmurry and her supervisor, Mary Garman. After McElmurry threatened to file harassment charges against Garman, the supervisor accused her of sabotaging lab results and demoted her to field work. McElmurry demurred, protesting that at 4'10" she was too short to drive the vehicles necessary to do field work. Garman, however, forced the demotion. Ultimately, McElmurry was injured in the field, and Garman terminated her.

Among other claims, McElmurry sued her ex-employer for disability discrimination, claiming that the ADA protects her shortness of stature.

The district court refused to dismiss the disability discrimination claim, concluding that McElmurry had stated enough in her complaint for her disability discrimination claim to proceed to discovery:

McElmurry, however, has alleged that her height is outside the normal range. She stands around 4'10". The Department has claimed that height can never be a disability…. The Court is unable to make such a conclusion on the very limited record before it on this Motion to Dismiss. It is plausible that "short stature" could, in some contexts, "substantially limit[ ] one or more of the major life activities of an individual."

Typically, height is not a disability protected by the ADA. As this case illustrates, however, the ADA (as amended in 2009) is now sufficiently broad such that an employee can plausibly argue that a host of normal physical characteristics can become protected disabilities if they fall "outside the normal range." This case concerns height. But, it is not a stretch for one to imagine similar claims of discrimination based on other typical characteristics that fall outside the norm—weight, for example.

This case is a good illustration of how dangerous the ADA has become for employers, and how carefully businesses must tread when dealing with any physical or mental condition.

This post originally appeared on The Legal Workplace Blog.

6th Circuit’s definition of “supervisor” under the NLRA has broad implications

In Vance v. Ball St. Univ., the U.S. Supreme Court held that for purposes of vicarious liability for harassment under Title VII, a supervisor must have taken a tangible employment action (i.e., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits) against the victim.

In footnote 7 to the opinion, the Court noted that the meaning of supervisor can vary depending on the federal statute being applied:

Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates.... The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect.

Indeed, the NLRA applies a less strenuous definition than Title VII to determine supervisors status. The question is how much less strenuous.

In GGNSC Springfield LLC v. NLRB (7/2/13), the 6th Circuit concluded that charge nurses who have the authority to exercise their independent judgment to discipline subordinate employees are supervisors under the NLRA. In reaching this conclusion, the 6th Circuit rejected the Board’s argument that the power to discipline must involve an immediate suspension, termination, or other employment action:

The Board’s position on discipline is essentially that, to be considered “discipline,” the employee must suffer some immediate adverse employment action as a result of receiving an employee memorandum, such as suspension or termination, and because RN charge nurses cannot suspend or terminate a CNA’s employment unilaterally, they lack authority to discipline.... The term discipline must capture something less....

Generally, where an employer maintains a defined progressive discipline policy, and cited violations of company policy count toward the number of missteps permitted before termination, those with independent authority to issue the citations are supervisors....

The larger question is whether the RNs must consult with a superior and obtain approval before issuing a memorandum; if they must, their judgment is unlikely “independent.” The record shows that consultation and approval is neither required nor typical.

Thus, as a general rule, an employee who possesses sufficient authority to issue any disciplinary action (even warnings that could lead to later suspension or termination) without consulting with a superior, qualifies as a “supervisor” under the NLRA. The immediate decision need not result in a tangible employment action.

Make no mistake, this holding is significant. The NLRA does not cover or protect “supervisors.” Given the scope of the NLRA’s current agenda to further employees’ rights to engage in protected concerted activity, broadening the scope of who qualifies as a supervisor removes those employees from the Act’s protections. Thus, for example, a “supervisor” fired for complaining on Facebook about wages, benefits, or other goings-on in the workplace cannot claim that the termination violated the NLRA’s prohibitions against adverse actions for engaging in protected concerted activity.

In a political environment that is broadening the NLRB’s power, GGNSC Springfield’s broad interpretation of the definition of “supervisor” is a big win for employers.

Is your company looking at the wrong info to screen candidates using social media

According to recent survey by CareerBuilder.com (hat tip: The Employer Handbook Blog), 39 percent of companies use social media sites to research job candidates, up only two percent from last year. Yet, there was a nine percent jump (from 34 to 43 percent) in the number of hiring managers who report using information found on a social media site to disqualify a candidate from consideration.

Among the types of disqualifying information found on social media sites:

• Provocative/inappropriate photos/info — 50 percent
• Info about drinking or drug use — 48 percent
• Bad mouthing a previous employer — 33 percent
• Poor communication skills — 30 percent
• Discriminatory comments related to race, gender, religion, etc. — 28 percent
• Lying about qualifications — 24 percent

Interesting, North Carolina State University’s Journal of Cyberpsychology, Behavior, and Social Networking just published an article entitled, “Big Five Personality Traits Reflected in Job Applicants’ Social Media Postings.” According to a press release announcing the article’s publication, “Companies may have a fundamental misunderstanding of online behavior and, as a result, may be eliminating desirable job candidates.”

To compile data for the article, researchers tested 175 people to measure the personality traits that companies look for in job candidates (such as conscientiousness, agreeableness and extraversion), and then surveyed their Facebook behavior to link it to the specific personality traits.

The findings were eye-opening:

• There is no significant correlation between conscientiousness and Facebook posts about alcohol or drug use.
• Extroverts are significantly more likely to post about drugs or alcohol of Facebook.

In other words, the 48 percent of the companies in the CareerBuilder survey that reported disqualifying a job candidate because of social media posts about drinking or drug use may have done themselves a disservice. That disservice might be compounded if the position for which the company is hiring favors extroverted personalities (such as a sales position).

All is not bad news from the NC State survey. Study participants who rated high on both agreeableness and conscientiousness were also very unlikely to “badmouth” other people on Facebook, including their former bosses. So, the one-third of companies in the CareerBuilder survey who reported disqualifying a job candidate for bad mouthing a previous employer are likely making a good hiring decision.

Stats are just stats, and should not be taken as the bible on the issue on which they are reporting. Indeed, there are reasons other than agreeableness and conscientiousness for which a company might consider disqualifying a candidate who posts about drug use or drinking. For example, I would question the judgment of anyone posting any info or pictures of drug use, and question the judgment of active job seekers posting photos or other information on excessive drinking.

These two surveys, however, make for an interesting juxtaposition, and show that there might be some science behind how employers are using social media posts to screen applicants and hire employees.

Moreover, regardless of how you use the information you find online, the guidance for the process you should be using the obtain the information remains the same — companies need to ensure that the information upon which they are making hiring decisions is lawful, and that appropriate screens are in place to prevent protected information (such as EEO information) from leaking into the hiring process.

Why Paula Deen loves gay marriage

Lost amid the news of salacious allegations of workplace misconduct, historically bad depositions, a food empire going down in flames, and the meaning of the N-word in 2103 American society is the fact that the employee suing Paula Deen and accusing her of racial harassment is White. 

The fact a White employee is complaining about harassment against African-Americans, in and of itself, does not bar the plaintiff’s harassment claim. As the 6th Circuit held in Barrett v. Whirlpool Corp., a White employee can bring a lawsuit asserting racial harassment against an African-American co-worker, but only if the employee claiming the harassment was also discriminated against because of his or her race.  In other words, it’s not enough for the plaintiff in the Paula Deen case to show that Ms. Deen created a racially hostile work environment in her restaurant. She must also prove that Ms. Deen discriminated against her because of her race (White).

Last week, Ms. Deen’s lawyers supplemented an earlier-filed motion seeking the dismissal of, among other claims, the racial harassment claim. They claim that the plaintiff cannot seek the protections of Title VII because she is not claiming that she was discriminated against, but merely that a racially hostile work environment existed targeting other races.

In support of this argument, Ms. Deen cites to Hollingsworth v. Perry, the recent U.S. Supreme Court case that dismissed, on the basis of a lack of standing, the challenge to the illegality of California’s gay marriage ban. Ms. Deen claims that per Hollingsworth, the plaintiff lacks standing to claim racial harassment. Per Hollingsworth:

Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision…. In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.”

In other words, Paula Deen argues that a White employee lacks standing to claim racial harassment against her African-American co-workers because she is not seeking a remedy for a harm personally against her.

Regardless of how the court decides this issue, employers should not use the standing issue as carte blanche to ignore certain harassment complaints. When an employer handles a harassment complaint, the race, gender, religion, national origin, etc. of the employee complaining should not matter. An employer should still investigate and take prompt and appropriate remedial measures to ensure that any harassment that occurred ceases.

The Constitutional argument raised by Paula Deen’s legal team is a nice weapon to have once you are in the thick of litigation, but following my practical tip will help keep you out of litigation in the first place.

Hat tip: Deadline

A reminder about holiday pay

Tomorrow’s July 4th holiday is a paid day off for many American workers. Last year, I wrote a post entitled, “8 things you need to know about holiday pay.” In light of tomorrow’s holiday, I thought it was a good idea to revisit that list.

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1. Do you have to pay for holidays? You are not required to pay non-exempt employees for holidays. Paid holidays is a discretionary benefit left entirely up to you. Exempt employees present a different challenge. The Fair Labor Standards Act does not permit employers to dock the salary of an exempt employee for holidays. You can make a holiday unpaid for exempt employees, but it will jeopardize their exempt status, at least for that week.

2. What happens if holiday falls on an employee’s regularly scheduled day off, or when the business is closed? While not required, many employers give an employee the option of taking off another day if a holiday falls on an employee’s regular day off. This often happens when employees work compressed schedules (four 10-hour days as compared to five 8-hour days). Similarly, many employers observe a holiday on the preceding Friday or the following Monday when a holiday falls on a Saturday or Sunday when the employer is not ordinarily open.

3. If we choose to pay non-exempt employees for holidays, can we require that they serve some introductory period to qualify? It is entirely up to your company’s policy whether non-exempt employees qualify for holiday pay immediately upon hire, or after serving some introductory period. Similarly, an employer can choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.

4. Can we require employees to work on holidays?Because holiday closings are a discretionary benefit, you can require that employees work on a holiday. In fact, the operational needs of some businesses will require that some employees work on holidays (hospitals, for example).

5. Can we place conditions on the receipt of holiday pay? Yes. For example, some employers are concerned that employees will combine a paid holiday with other paid time off to create extended vacations. To guard again this situation, some companies require employees to work the day before and after a paid holiday to be eligible to receive holiday pay.

6. How do paid holidays interact with the overtime rules for non-exempt employees? If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. Also, an employer does not have to pay any overtime or other premium rates for holidays (although some choose to do so).

7. Do you have to provide holiday pay for employees on FMLA leave? You have to treat FMLA leaves of absence the same as other non-FMLA leaves. Thus, you only have to pay an employee for holidays during an unpaid FMLA leave if you have a policy of providing holiday pay for employees on other types of unpaid leaves. Similarly, if an employee reduces his or her work schedule for intermittent FMLA leave, you may proportionately reduce any holiday pay (as long as you treat other non-FMLA leaves the same).

8. If an employee takes a day off as a religious accommodation, does it have to be paid? An employer must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. One example of a reasonable accommodation is unpaid time off for a religious holiday or observance. Another is allowing an employee to use a vacation day for the observance.

Here comes the disclaimers. The laws of your state might be different. If you are considering adopting or changing a holiday pay policy in your organization, or have questions about how your employees are being paid for holidays and other days off, it is wise to consult with counsel. Also, these 8 tips assume that your company lacks a collective bargaining agreement.

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Friday, July 5 is also a paid holiday for me. WIRTW will not run this week, and will return on Friday, July 12, with WIRTW #280.

The FMLA, the ADA, and no-fault attendance policies

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues. These policies, however, carry, a certain degree of risk—namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy.

• In Green v. Wal-Mart Stores (S.D. Ohio 6/25/13), the district court denied the employer’s motion for summary judgment on an employee’s FMLA claim because the employer admitted to counting FMLA-days for purposes of progressive discipline under its no-fault attendance policy.
• In July 2011, the EEOC reached a $20 million settlement with Verizon Wireless over claims that the wireless company denied reasonable accommodations to disabled employees by disciplining or firing them pursuant to its no-fault attendance policy.

Employers have a lot to gain from no-fault attendance policies, both in ease of personnel management and certainty in attendance calculations. In deciding whether to adopt or continue a no-fault attendance policy,however, employers must carefully to balance those benefits against the risk of FMLA or ADA violations. Moreover, with a no-fault attendance policy in place, employers must be careful to train those responsible for administering the policy with the exceptions required by the FMLA and ADA for protected absences.

Today’s post is brought to you by the letters W, A, R, and N

Last week, CNNMoney reported that the Sesame Workshop is laying off approximately 10 percent of its employees. The layoff will not affect enough employees to trigger the WARN Act, the federal statute that governs advance notice for certain plant closing and mass layoffs. It does, though, provide a good jumping-off point for a short discussion about the WARN Act and its requirements.

WARN Act is shorthand for the Worker Adjustment and Retraining Notification Act. In general, it requires 60-day advance notice of either a plant closing or a mass layoff.

It covers all employers with 100 or more employees, not counting those who worked less than 6 months in the last 12, and those who work less than 20 hours per week. Even though short-term and part-time workers are not counted for purposes of determining WARN Act coverage, they still must receive notice if affected by an otherwise qualifying plant closing or mass layoff.

For purposes of WARN Act notice, a plant closing is the shut-down of an employment site that will result in an employment loss for 50 or more employees during over 30-day period.

The WARN Act covers a mass layoff that will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33 percent of the employer’s active workforce.

An employment loss for purposes of the WARN Act means either (1) a termination, other than a discharge for cause, voluntary departure, or retirement; (2) a layoff longer than 6 months; or (3) a reduction in an employee’s hours of work of more than 50 percent in each month over any 6-month period.

The WARN Act requires employers to provide 4 different notices—to the affected employees, to the employees’ union representative (if any), to the State dislocated worker unit, and to the chief elected official of the unit of local government. The Act’s regulations detail the information that must be included in each notice.

An employer who violates the Act by closing a plant or affecting a mass layoff without providing sufficient notice is liable to each aggrieved employee for back pay and benefits for the period of violation, up to a maximum of 60 days. An employer can reduce its liability, however, by paying employees during the period of the violation. For example, if an employer is worried about employee sabotage after announcing a layoff, the employer can lay off the employees immediately and pay in lieu of providing the WARN notice.

The Act provides exceptions for faltering companies, unforeseeable business circumstances, and natural disasters that, if met, would excuse an employer from providing the 60-day written notice required by the WARN Act.

If you are near or above the WARN Act’s 100-employee threshold, and you are considering closing a plant or laying off a large number of employees, it behooves you to check with employment counsel to determine whether the WARN Act will be triggered, and, if so, what specific notices you must provide and to whom.

photo credit: Looking Glass via photopin cc

WIRTW #279 (the “stand your ground?” edition)

Having recently settled a nasty harassment case on the day of trial, I read with great interest Molly DiBianca’s post, Why Employers Settle Lawsuits, at her Delaware Employment Law Blog. One of the key reasons Molly provides to consider settlement is the employer’s ability to return to normal:

Often times, employers find that the most attractive part of settlement is the ability to put an end to the drain on resources that litigation absolutely involves. Litigation is costly in attorney’s fees and other expenses. But there are other critical costs, too, including the time key decision makers must devote to the case and the general distraction that it causes in the workplace. Every hour spent in depositions and discovery is an hour that cannot be devoted to achieving the organization’s objectives. I’ve never had a client who didn’t take a deep sigh of relief once the case was resolved and they realize they’re able to return to running their business.

Molly’s thoughtful post is worth reading by any business facing the decision of whether to stand its ground and litigate, or move on and settle.

I’ve also previously covered this issue, in Fight or flight? When an employee sues you, should you litigate or settle?

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

Discrimination

• Vance v. Ball State: the press miscoverage begins — from Walter Olson’s Overlawyered
• Are Employers Racist for Conducting Employment Background Checks? — from employeescreenIQ Blog
• The Government Checks Criminal Records. Why Can’t Private Employers? — from Forbes
• When a hostile work environment isn’t a hostile work environment — from Eric Meyer’s The Employer Handbook Blog
• Breast Feeding on the Job — Is a Mother Protected? — from Maryland Employment Law Developments
• What Not To Do When An Employee Is Pregnant — from Employer’s Corner Blog
• Q&A: Five Areas of Employment Discrimination Law Sparking Scholarly Interest — from Bloomberg BNA
• The Employment Non-Discrimination Act might actually pass in 2013 — from Employment Law Bits
• Paula Deen, Racism and Employment Lawyers — from The Cynical Girl

Social Media & Workplace Technology

• Facebook Introduces Instagram Video Which Promises New Social Media Headaches for Corporations — from from Technology Law Source
• Can You Control Your Employees’ LinkedIn Profiles? — from Evil HR Lady, Suzanne Lucas
• “Tweet” becomes an official word — from Ragan
• The Five Rudest Things You Can Do Online — from Wall Street Journal
• Laid-Off ESPN Employee Of 26 Years Fights Back On Facebook — from AOL Jobs

HR & Employee Relations

• Can I fire an employee by phone or email? — from Ask a Manager
• The Internal Struggle When We Must Make Make Ridiculous Terminations — from TLNT
• The New Rules of Tattoos In the Workplace — from The HR Capitalist, Kris Dunn
• How to “Listen In” to Workforce 2.0 — from Fox Business
• Rogue Employees - What to do? — from Smooth Transitions

Wage & Hour

• If Unpaid Interns Don’t Like Their Bosses, They’ll Hate Justice Alito — from Above the Law
• Smartphone Overtime: The FLSA Knows No Bounds — from Corporate Counsel
• The Perils of “Rewarding” FLSA Exemption — from Compensation Force
• Why the New Internship Ruling is Bad For College Students — from Inc.
• Employer Obligations Under the Affordable Care Act — from Inhouse Blog
• How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits? — from Jeff Nowak’s FMLA Insights

Labor Relations

• The Next Frontier for NLRB: Videos & Photos in the Workplace? — from Dan Schwartz’s Connecticut Employment Law Blog
• Union 2.0: how a browser plug-in is organizing Amazon's micro-laborers — from The Verge
• SCOTUS to Decide Noel Canning (NLRB Recess Appointments) — from Phil Miles’s Lawffice Space
• Cheat Sheet: A guide to the NLRB recess appointment controversy — from Inside Counsel

Happy 75th Birthday, FLSA

75 years ago yesterday, President Franklin D. Roosevelt signed the Fair Labor Standards Act. By establishing a minimum wage, setting an overtime premium for any hours worked in excess of 40 in any week, and creating child-labor protections, the FLSA is one of the most important pieces of employment legislation ever enacted.

In the 75 years since its passage, the FLSA has morphed into one of the most confounding statutes with which employers must comply.

To celebrate the FLSA’s Diamond Jubilee, please take a walk through 10 of my greatest wage-and-hour hits from the archives (in no particular order):

1. Taking issue with the term “wage theft”
2. We ♥ our phones, but should employees be paid for using them off-duty?
3. Are employers screwing up the FLSA’s lactation mandate? Probably not.
4. The 5 little words that will cause your company a huge headache
5. SCOTUS rules pharmaceutical reps are exempt outside salespeople
6. “Eat Shop Sleep” underscores the importance of proactively addressing wage and hour issues
7. “If I could press a button and instantly vaporize one sector of employment law?”
8. Paying overtime to salaried, non-exempt employees
9. Administrative employees vs. the administrative exemption
10. The ticking time bomb of overtime

 

 

Vance v. Ball St. narrows employer liability for harassment

In its prologue to yesterday Supreme Court opinion in Vance v. Ball. St. Univ. [pdf], Justice Alito, writing for the five-member majority, frames the importance of the issue facing the Court:

Under Title VII, an employer’s liability for such har­assment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employ­ment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the em­ployer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unrea­sonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Under this framework therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.

Ultimately, the Court held that to qualify as a supervisor for purposes of vicarious liability for harassment, one must be able to impart a “significant change in [the] employment status” of the plaintiff:

An employer may be vicariously liable for an employee’s unlawful harassment only when the em­ployer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “sig­nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits.”

Make no mistake, this is a huge victory for employers. Vicarious liability for unlawful harassment is a huge problem for employers. It means that that if the unlawful harassment occurred, the employer is liable, whether or not it knew about it, should have known about, or even took efforts to stop it from occurring. This case limits that vicarious liability only to those are in an actual position to affect the plaintiff’s terms and conditions of employment/

The majority made it clear that it was drawing this bright line to aid parties embroiled in harassment litigation:

The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervi­sor, and in others, the alleged harasser’s status will be­ come clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolv­ing the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.

In other words, the court’s bright-line rule is meant to weed out for resolution those cases in which vicarious liability exists. As Kevin Russell correctly pointed out at SCOTUSblog, these cases “will provide judges greater authority to prevent the case from getting to a jury in the first place.”

To ensure that employers avail themselves of the benefits of this decision as often as possible, it is best that businesses review organizational charts, chains of authority, and job descriptions. Businesses should spell out, in detail, those supervisors who have the authority to effect a “sig­nificant change in employment status.” They should also spell out which supervisors have the express authority to hire, fire, demote, or reassign which employees. Businesses should spell out which supervisors lack that authority. By establishing clear chains of authority, employers will place themselves in the best position to limit the risk of vicarious liability.

The importance of Vance as a win for employers cannot be understated. When you couple this decision with the Court’s retaliation decision in Nassar, it’s fair to say that yesterday, employers had their best day in recent memory at the Supreme Court.

BREAKING: SCOTUS decides on but-for causation standard for retaliation under Title VII

In a busy, end-of-term day at the Supreme Court, the Court has issued its decision in University of Tex. S.W. Med. Ctr. v. Nassar. In this 5-4, partisan-line decision, the Court decided that but-for causation is the appropriate standard for retaliation claims under Title VII.

Thus, going forward, an employee cannot succeed on a Title VII retaliation claim without proving that the employer would not have taken the adverse employment action but for an improper, retaliatory motive.

Needless to say, this is huge win for employers by narrowing an employee’s likelihood of proving retaliation. It eliminates mixed-motive retaliation. Retaliation must be the cause for an employee to prove retaliation.

Aside from its legal implications, this case is significant because it is the first retaliation case that this Court has decided in favor of the employer.

Perhaps the most curious part of the opinion, however, comes from Justice Ginsberg, who calls for passage of a “Civil Rights Restoration Act” in light of this opinion and the opinion in Vance. Given the political climate in Congress, I’d say this is unlikely. The drumbeats of employment-law reform, however, will begin to beat loudly from the left.

The Court’s opinion is available for download here.

BREAKING: SCOTUS issues decision in Vance v. Ball St. Univ.

Hot off the presses, the Supreme Court just issued its decision in Vance v. Ball St. Univ.

Via SCOTUS Blog, the Court held that “an employer is a supervisor for vicarious liability under Title VII only if she has the power given by the employer to take tangible employment actions against the victim.”

The opinion was 5-4, split down partisan lines.

You can download a pdf of the opinion here. The case background is here and here.

I’ll have analysis of the opinion later today.

Employee medical information and social media

Hopefully, you know that the ADA protects employee medical information as confidential. According to the EEOC:

The basic rule is that with limited exceptions, employers must keep confidential any medical information they learn about an applicant or employee. Information can be confidential even if it contains no medical diagnosis or treatment course and even if it is not generated by a health care professional. For example, an employee’s request for a reasonable accommodation would be considered medical information subject to the ADA’s confidentiality requirements.

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.” Regardless, these examples potentially implicate the ADA’s confidentiality provisions.

What can a company do to guard against this type of ADA violation? Businesses should build confidentiality protections into their social media policies. Just as companies should be reminding employees that employee medical information is confidential and should only be disseminated on a need-to-know basis, so should they carry over those protections to their social media policies.

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. I can almost guarantee that a violation of the ADA’s confidentiality protections is the furthest from a manager’s or supervisor’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, some training—on this issue could save you a headache in a disability discrimination lawsuit down the road.

Title VII does not give employees the right to proselytize

I believe that everyone’s relationship with God (whether you call that deity Yahweh, Jesus, Allah, Vishnu, Buddha, or something else) is personal. I have no opinion on your spiritual relationship, as should you have none on mine. Thus, I get mad whenever someone tries to shove their religious beliefs down my throat. Not only do I not care, but I can guarantee that you will not change my mind. Proselytism is one small step removed from fanaticism, and rarely, if ever, has anything good come from religious fanaticism.

I share the above as prologue to today’s discussion, which centers on Hall v. Tift County Hosp. (M.D. Ga. 6/10/13). In that case, the court rejected an employee’s religious discrimination case stemming from discipline for sending a Christian-themed email sent to a gay co-worker.

Pamela Hall, a Baptist, learned that one of the her co-workers, Amanda Dix, was a lesbian. Believing that she had a duty to save Dix from the “sin” of “homosexuality,” Hall placed a pamphlet, entitled, “How Should Christians Respond to ‘Gay’ Marriage?” in Dix’s locker. Rightfully concerned that Dix would ignore the pamphlet, Hall sent her a follow-up email, which said in part:

I saw that book in Kentucky when we went to the creation museum. I don’t want to hurt your feelings but I felt led to leave that for you and I would not be a true friend if I ignore the responsibility that God has left for his children to share the message and hold each other accountable…. Sodomy is a sin, gay people live in sin. It is not about self gratification…. When we are in God’s will we will WANT to live right and live for him and do what the Bible says and that is to go and tell! Everything else is not important…. There is only one way to heaven.

Dix complained to management, which investigated and demoted Hall from her supervisory position. In her lawsuit, Hall alleged that when the HR Administrator communicated the demotion, she said, “We could not share our faith at work. We could not talk about Jesus at work.”

Hall claimed that discipline for discussing religion at work discriminated against her because of her religion. In dismissing Hall’s case, the court disagreed.

Other employees have been disciplined for sending offensive or harassing emails. Two employees were terminated in April of 2009 for distribution of racial, ethnic, and religious materials in the form of an email that was offensive to other employees. The email makes specific reference to Islam, blacks, black Muslims, and Hispanics….

The question is whether Plaintiff was discriminated against because of her religion — was she discriminated against because she is a Christian? Without producing evidence of a non-Christian employee in the same job being treated differently after engaging in the same activity, Plaintiff cannot establish a prima facie case.

As I’ve said before, religious proselytization does not belong in the workplace. If you permit one employee to share his or her religious views in the workplace, you will have a difficult time disciplining or terminating another for the same reason. Employers and their employees should keep religion where it belongs—in the home and in places of worship.

photo credit: danny.hammontree via photopin cc

Classification of obesity as a “disease” has huge employment law implications

News broke yesterday that the American Medical Association voted to re-classify obesity from a condition to a disease.

Conventional wisdom has been that normal, run-of-the-mill obesity, unlinked to an underlying medical condition such as diabetes, is not a disability protected from discrimination by the Americans with Disabilities Act.

This decision by the AMA, however, will likely flip that conventional wisdom on its head. The ADA, as amended in 2009, is so broad that it covers virtually any diagnosed medical condition as a “disability.” Now, employers will have to consider reasonable accommodations for anyone with a body mass index of 30 or over. Also, anyone who appears to have that BMI will have potential protections from terminations and other adverse actions related to that perceived “disease.”

While this expanded coverage of the ADA is problematic, this issue raises a deeper, more troubling problem. The goals of the ADA are commendable. Yet, as we expand the ADA to cover non-traditional medical conditions, a backlash is inevitable. Protecting the unworthy will erode the desire to protect the worthy. Every time an overweight worker sues for disability discrimination will cost those suffering from illnesses that deserve to be protected.

Congress was correct in amending the ADA to restore the original intent of the statute. Obesity protections, however, illustrate that perhaps those amendments went too far.

Paula Deen gave the worst deposition ever

Until now, celebrity chef Paula Deen was best known for high cholesterol and high incidence of diabetes. After this week, however, she might now be better known as the worst deponent ever.

Ms. Deen was recently deposed in a race discrimination case brought by a former employee. Among her testimonial gems, according to Talking Points Memo (which includes a copy of the full deposition transcript):

• Deen describes her dream restaurant: “I remember telling [my employees] about a restaurant that my husband and I had recently visited. And I’m wanting to think it was in Tennessee or North Carolina or somewhere, and it was so impressive. The whole entire wait staff was middle-aged black men, and they had on beautiful white jackets with a black bow tie. I mean, it was really impressive. And I remember saying I would love to have servers like that, I said, but I would be afraid that somebody would misinterpret.”
• Deen details nice ways to use the N-word: “We hear a lot of things in the kitchen, things that they — that black people will say to each other. If we are relaying something that was said, a problem that we’re discussing, that’s not said in a mean way.”
• Deen responds to whether jokes using the N-word are hurtful: “That’s kind of hard. Most — most jokes are about Jewish people, rednecks, black folks. Most jokes target — I don’t know. I didn’t make up the jokes, I don’t know. They usually target, though, a group. Gays or straights, black, redneck, you know, I just don’t know — I just don’t know what to say. I can’t, myself, determine what offends another person.

As for me, I’m saving a copy of the transcript to use with my clients as the example of how not to perform at a deposition.

Employment Law Blog Carnival: The Summer Blockbuster Edition

It’s hard to believe, but the summer blockbuster—the high budget, slickly marketed, big action, and bigger box-office-return movie that has everyone talking—was born 38 years ago tomorrow. On June 20, 1975, Jaws hit theaters. It earned $470 million total, which, I don’t have to tell you, is a lot of chum, especially in 1975 dollars.  In hindsight, Jaws changed the film industry by changing how we go the the movies. There had been plenty of movies before Jaws that made lots of money, but after Jaws, movie studios began to plan their entire annual release schedule around the release of one big summer movie.

In honor of this week marking the anniversary of Jaws, I present the Summer Blockbuster edition of the Employment Law Blog Carnival.

Jaws (1975): $470,653,000 total worldwide box-office 

Is there anything scarier than a the world’s biggest great white shark terrorizing a sleepy New England beach community? How about reviewing 403(b) plan documents? Yikes! According to Employee Benefits Unplugged, you might be able to put that fear away, as the IRS Paves the Way for “Boilerplate” 403(b) Plan Documents.

 

Star Wars (1977): $775,398,007

Despite the tense battle between Darth Vader and Obi-Wan Kenobi in the original trilogy’s original film, you could sense the mutual respect that rested at the heart of their complicated relationship. At The HR Bartender, Sharlyn Lauby (along with yours truly) shares how Employee Respect Is an Unfair Labor Practice.

 

Raiders of the Lost Ark (1981): $389,925,971 

In the original Raiders…, Indiana Jones had to overcome some spectacular traps. None is more famous, though, than the giant boulder that chased him out of the cave in the film’s opening sequence. Of course, Indy escaped. The Emplawyerologist helps you avoid the 10 most common pitfalls of the I-9 form.

 

E.T. the Extra-Terrestrial (1982): $792,910,554

Is there anything more beautiful than E.T. healing Elliot’s finger? Ask Mike Haberman, who, over at Omega HR Solutions, offers us The Good, the Bad and the Ugly about Hiring only Beautiful People.

 

Ghostbusters (1984): $291,632,124

I ain’t afraid of those ghosts. Apparently, the 3rd Circuit ain’t afraid of those NLRB recess appointments, according to Third Circuit Agrees with Noel Canning; Is the 2nd Court to Invalidate NLRB Recess Appointments from Employment Essentials.

 

Back to the Future (1985): $383,874,862 

Is there anything more depressing that traveling 30 years in the past only to find out that you mom has the hots for you? Ask Heather Bussing, who, over at The HR Examiner, writes about Depression and Work.

 

Top Gun (1986): $356,830,601 

You will be the top gun of employers if you document your employees’ performance and disciplinary problems (says CPEhr’s Small Biz HR Blog), successfully enforce termination clauses in employment agreements (says First Reference Talks), and provide for your employees bad-mouthing your company online (says Jessica Miller-Merrell’s Workology).

 

Batman (1989): $411,348,924 

“Where does he get those wonderful toys,” asks Jack Nicholson’s Joker. Some employers feel like the joke is on them when dealing lately with the EEOC. John Holmquist’s Michigan Employment Law Connection shares some insight into the Agency’s thought process in A conversation with the EEOC.

 

Indiana Jones and the Last Crusade (1989): $474,171,806

The third installment in the saga of Indiana Jones concerns the quest for the Holy Grail, the mystical chalice out of which Jesus supposedly drank at the Last Supper. Blogging4Jobs, in Creating a Company “Bible” Can Save Time and Attorney’s Fees, suggests that your company create its own grail of best practices and corporate knowledge to aid your attorney in representing you in litigation.

 

Jurassic Park (1993): $969,851,882 

You want scary? How about being chased by an honest to goodness T-Rex? Or, courtesy of Robin Shea’s Employment & Labor Insider, Is your reason for termination honest, logical, and complete? If not, you may get a scary result in your discrimination case.

 

The Lion King (1994): $951,583,777 

The circle of life starts with pregnancy. Eric Meyer’s The Employer Handbook shares the most cockamamie excuse evah for firing a pregnant employee.

 

Finding Nemo (2003): $921,743,261

Dory tried to talk to the whale. She should have listening to its warning. Fitzpatrick on Employment Law reports on a different type of warning, in Fourth Circuit Holds That Supervisor’s “Warning” Constitutes Adverse Action.

 

The Dark Knight (2008): $1,004,558,444 

The Dark Knight has some spectacular violence, most of which is wrought by the film’s amazing antagonist, The Joker. How do you handle home-grown violence that permeates your workplace? Ask the author of this piece at Musings, discussing a Victim of Domestic Abuse Fired from Teaching Job.

 

Toy Story 3 (2010): $1,063,171,911

I live in a Toy Story world. Just ask my almost-five-year-old, Donovan, and his collection of a few-dozen Buzz Lightyears of various sizes and features. For this reason, no list of summer blockbusters compiled by me would be complete without including the most successful animated film of all time, Toy Story 3. The movie concerns a jail break from Sunnyside Daycare by Andy’s beloved toys. If they were real criminals, and the city of Seattle had its way, employers would be limited in learning of their conviction records, says Washington Workplace Law’s Seattle Bans Consideration of Criminal Background in Early Stages of Hiring Process.

 

Black Swan (2010): $329,398,046

Okay, so Black Swan neither premiered in the summer, nor is it properly classified as a blockbuster (although $300+ million in international box-office and a Best Actress Oscar for Natalie Portman is nothing to sneeze at). There is no movie, though, more appropriate to discuss the recent happenings with the legality and illegality of unpaid internships. See Black Swan Unpaid Interns Win FLSA Claim from Phil Miles’s Lawffice Space, and Top 6 Signs Your Unpaid Internship Should Be Paid from Donna Ballman’s Screw You Guys, I’m Going Home.

 

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Robin Shea, the author of the fabulous Employment & Labor Insider, will host next month’s Employment Law Blog Carnival, on July 17. If you want to participate, email her a link to your employment-law-related blog post by July 12. If you want to host a future edition of the Carnival, email its curator, Eric Meyer.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #279.

He’s a lumberjack and, apparently, he’s not okay

An employee who posed in Playgirl magazine is suing his former employer for sexual harassment, reports ABC News.

18 years ago, Daniel Sawka posed as a nude lumberjack in Playgirl. Sawka alleges that when his co-workers discovered the pictures online, they began teasing him with chants of “Timber!” According to Sawka’s lawsuit [pdf], the harassment included jokes about “his genitals, and a comment about what homosexual men viewing the photos … would be doing while viewing the photos.” Sawka also claims that his co-workers downloaded or viewed the photos during work hours and on work computers.

The lessons here are two-fold:

1. Just because an employee posed nude for money in his 20s does not mean that he is comfortable with it becoming a workplace joke in his 40s. If an employee complains, the company has an obligation to investigate and take reasonable measure to stop the harassing behavior from continuing. This rule holds true whether the employee is male or female.
2. The Internet is permanent. Google has approximately 47 billion webpage indexed for searching. The odds are pretty good that if someone wants to dig up some dirt on your, they’ll be able to find something.

Also, this story gives me great excuse to share this:

Fox Searchlight case confirm that unpaid interns are a dying breed

Out of the millions of page-views this blog has received over the six-years of its existence, the most popular post (by an almost three-to-one margin over its closest competitor) is You should pay attention to this post if you have unpaid interns. In that post, I discussed a lawsuit filed by two unpaid interns who claimed that they should have been paid while working for Fox Searchlight pictures.

Last week, the United States District Court for the Southern District of New York agreed.

In Glatt v. Fox Searchlight [pdf], the Court applied the Department of Labor’s six-factor test and determined that that the internships should have been paid.

1. Is the training similar to what would be given in a vocational school or academic educational instruction?

While classroom training is not a prerequisite, internships must provide something beyond on-the-job training that employees receive…. Footman did not receive any formal training or education during his internship. He did not acquire any new skills aside from those specific to Black Swan’s back office, such as how it watermarked scripts or how the photocopier or coffee maker operated.

2. Is the training for the benefit of the trainees or students?

Undoubtedly, Glatt and Footman received some benefits from their internships, such as resume listings, job references, and an understanding of how a production office works. But those benefits were incidental to working in the office like any other employee and were not the result of internships intentionally structured to benefit them…. On the other hand, Searchlight received the benefits of their unpaid work, which otherwise would have required paid employees

3. Do the trainees or students work under their close observation of regular employees without displacing them?

Glatt and Footman performed routine tasks that would otherwise have been performed by regular employees…. His supervisor stated that “[i]f Mr. Glatt had not performed this work, another member of my staff would have been required to work longer hours to perform it, or we would have needed a paid production assistant or another intern to do it.”

4. Does the employer derive no immediate advantage from the activities of the trainees or students, and on occasion are the employer’s operations actually impeded?

Searchlight does not dispute that it obtained an immediate advantage from Glatt and Footman's work. They performed tasks that would have required paid employees. There is no evidence they ever impeded work at their internships. Menial as it was, their work was essential. The fact they were beginners is irrelevant

5. Are the trainees or students not necessarily entitled to a job at the conclusion of the training period?

There is no evidence Glatt or Footman were entitled to jobs at the end of their internships or thought they would be.

6. Do the employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training?

Glatt and Footman understood they would not be paid. But this factor adds little, because the FLSA does not allow employees to waive their entitlement to wages.

Based on the balancing of these six factors, the Court concluded the the employees “were classified improperly as unpaid interns and are ‘employees’ covered by the FLSA.”

This issue is not going away. According to Friday’s New York Times, last week two former interns sued Condé Nast for unpaid wages. I think it’s fair to say that the sun in quickly setting on the use of unpaid internships in corporate America.

In light of these cases, it bears repeating the conclusion I reached in The Employer Bill of Rights (p. 159):

Employers that use unpaid interns should pay careful attention to this issue. It is far better to scrutinize interns under the DOL’s six factors before the agency, or a group of plaintiffs, swoop in and do it for you. It is even better to formalize the relationship in a written internship agreement that formally spells out how each of these six questions is answered in your favor. Or maybe it is best simply to assume that except in rare cases, there is no such animal as an “unpaid intern,” and you should simply accept the fact that if you are going to label entry-level employees as interns, you need to pay them for their services.