WIRTW #324 (the “Wir werden du bald sehen” edition)

I have used this space to write a lot about my family. You know I’m married, have two amazing children, Norah and Donovan, and a dog. But, you may not know that my family includes a teenager too. We call her our German daughter. She’s been living with us for the past 10 months. Next week, she leaves us to go home. You never know what the experience will bring when you permit someone to share your home and your lives for a year. We hoped for the best, and with our year coming to a close, I can say we got it. We gained another member of family, albeit one that lives more than 4,000 miles away. I will always think of Zarah as our German daughter.

For more on the experience, please read my wife’s thoughts on her blog.

As for Zarah, this is not, “Auf Weidersein,” but, “Wir werden du bald sehen.”

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

Discrimination

• Sex at work: test your knowledge! — from Robin Shea’s Employment and Labor Insider
• Management-Side Firm Whines Because EEOC Mediators Are Doing Their Jobs — from Donna Ballman’s Screw You Guys, I’m Going Home
• The EEOC is Focusing on Systemic Harassment. So Should You. — from Jonathan Segal
• Does Telling Me To Stop Complaining Count As Discrimination? — from Evil Skippy at Work
• Miles on Pregnant Workers Fairness Act — from Phil Miles’s Lawffice Space
• “Racism In The Everydayness” — from Employment Discrimination Report

Social Media & Workplace Technology

• “This man says he’s willing to die so he can post naked pictures without getting fired” — from How Appealing
• Why Social Media is Becoming an HR Issue — from GMS Blog
• Employers crack down on social media abuse — from Business Management Daily
• 20 cool iOS 8 features that Apple barely even mentioned at WWDC 2014 — from Boy Genius Report

HR & Employee Relations

• What Single Policy Could Ease Americans’ Time Crunch? — from Time
• Employment at-will trumps the 2nd Amendment (Yes, you can fire the employee who shoots a gun at work) — from Eric Meyer’s Employer Handbook Blog
• By 2020 Millennials Will Represent 40% of the Workforce. Are You Ready? — from Blogging4Jobs
• Employment Protections for Medical Marijuana — from Minnesota Employer

Wage & Hour

• FLSA Transparency Threat Persists — from Compensation Cafe
• Overhauling overtime — from HR Hero Line
• Telecommuters, Minimum Wage and Overtime — Oh My! — from The Emplawyerologist
• FLSA Overtime, Minimum Wage Lawsuits Continue to Skyrocket — from Wage & Hour Insights

Labor Relations

• One Is the Loneliest Number….But Even Acting Alone Employees May Be Engaged in Concerted Activity — from All in a Day’s Work
• NLRB Round-up: The Long Arm of Labor Law — from Blogging4Jobs
• Threatening the boss: the NLRB weighs in — from Michigan Employment Law Connection
• NLRB Finds Employee’s Profane and Insubordinate Conduct Shielded by Protected Activity — from Labor Relations Today

Federal court blows up EEOC's stance on medical leaves of absence

I had this long elaborate post written about Hwang v. Kansas State University (5/29/14) [pdf], in which the 10th Circuit court of appeals held an employer did not have to offer a leave of absence greater than six months to accommodate an employee’s disability, and that an employer can have an inflexible leave of absence policy that places a hard cap on an employee’s medical leave of absence.

Grace Hwang, an assistant professor at Kansas State University, signed a written one-year teaching contract. Before the start of fall term, Ms. Hwang was diagnosed with cancer.  She sought, and the University granted her, a six-month (paid) leave of absence for treatment.  Near the end of her leave, Ms. Hwang’s doctor advised her to seek more time off. She asked the University to extend her leave through the end of spring semester, promising to return in time for the summer semester. The University, however, refused, citing an inflexible policy allowing no more than six months’ time off.  In response, she sued, claiming that by denying her more than six months’ leave the University violated the Rehabilitation Act.

The 10th Circuit held that Hwang’s need for an extended leave of absence disqualified her from the protections of the disability discrimination laws:

Still, it’s difficult to conceive how an employee’s absence for six months—an absence in which she could not work from home, part-time, or in any way in any place—could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.… 

Neither is there anything inherently discriminatory in the fact the University’s six-month leave policy is “inflexible,” as Ms. Hwang would have us hold. To the contrary, in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled—by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency. 

My post would have provided you insightful analysis of Hwang, discussing how this case in an outlier. That employers should still think long and hard (and only after engaging in the interactive process) before denying an extended unpaid leave of absence under the ADA. And that employer’s are most safely served by having a flexible leave of absence policy instead of a hard-capped one.

But, three of my favorite employment law bloggers beat me to the punch with their own thoughts.

• Are Inflexible Leave Policies Lawful After All? One Court Leaves Employers Salivating — from Jeff Nowak’s FMLA Insights
• Just how badly did a federal appellate court trash extended leave as a reasonable accommodation? — from Eric Meyer’s Employer Handbook Blog
• Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes. — from Dan Schwartz’s Connecticut Employment Law Blog

Jeff went so far as to Twitter-challenge me to pick the best of the three posts.

@danielschwartz @Eric_B_Meyer, we all were thinking the same blog post this weekend. Should we have @jonhyman vote on which 1 is best? :)
— Jeff Nowak (@jeffreysnowak) June 3, 2014

Haven’t I already done enough?

What the f‽ NLRB allows employee to curse out the boss

During a meeting about commissions, minimum wage, and employee breaks, an employee lost his temper, angrily calling his supervisors words such as “f***ing mother f***ing,” f***ing crook[s],” and an “a**hole.” He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14) [pdf], the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.

We conclude that affording the Act’s protection to Aguirre here serves the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s interest in maintaining order and discipline in its establishment because the outburst was not witnessed by, and was not likely to be witnessed by, other employees. Thus, Aguirre’s outburst occurred in a closed-door meeting in a manager’s office away from the workplace; the Respondent chose the location of meeting in the manager’s office where the outburst occurred; and no employee overheard Aguirre’s obscene and denigrating remarks to the owner.

We also conclude that affording the Act’s protection to Aguirre will further the Act’s goal of protecting Section 7 rights without unduly impairing the Respondent’s legitimate interest in maintaining workplace discipline and order for the additional reason that the Respondent provoked Aguirre’s outburst…. Aguirre’s outburst occurred contemporaneously with Plaza’s twice suggesting that Aguirre could quit if he did not like the Respondent’s policies, Plaza’s censure of Aguirre’s protected activities as a lot of negative stuff, and Plaza’s telling Aguirre that he should not complain about Respondent’s pay structure, all of which made clear that he would not engage in the merits of Aguirre’s complaints.

This case should be troubling to all employers. Apparently, we live in a world in which an employee can call his boss a f***ing mother f***er” and get away with it, merely because it was said during a meeting in which the employee also happened to be discussing certain working conditions. If an employer cannot enforce reasonable restrictions agains insubordination (especially to this level), then we are. It that far from the NLRB letting the chickens run the workplace henhouse. How will employers be able to effectively manage then?

[Hat tip: Today’s General Counsel]

A black and blue lawsuit: Tiffany & Co. sued for race discrimination

My dog’s name is Loula Mae. “Loula” is name of the dog on the kids cartoon Pocoyo, which my son was obsessed with when we got her. “Mae” just sounded right to pair with Loula, and gives her a bit of a gentile, southern charm. Little did we know, however, that the birth-name of Holly Golightly, the iconic lead played by Audrey Hepburn in Breakfast at Tiffany’s is also Lula Mae. Now we know why our dog is so damn classy.

I only tell this story because today’s post is about the famous jewelry store, Tiffany & Co., which has gotten itself into a little legal mess over the racial composition of its management team and its alleged treatment of its lone African-American manager.

The New York Times reports that Michael McClure, a group director Tiffany since 1993, has sued the jeweler, claiming a “systemic, nationwide pattern and practice of racial discrimination.” According to McClure’s lawsuit, he is the only African-American to hold one of the more than 200 management positions at Tiffany. He further alleges that that despite consistently glowing reviews since his hire, the company gave him a “warning for termination” earlier this year. McClure claims that his new boss provided that warning after meeting McClure for the first time, and then telling a group of vice presidents that he was surprised “a black man is representing the Tiffany brand.”

A lawsuit is merely a collection of alleged, unproven facts. For its part, Tiffany says that the lawsuit is meritless, and that it “welcome[s] and value[s] diversity in all forms.”

An employer like Tiffany likely does not have any affirmative action requirements—that is, it does not have an obligation to hire a racially balanced workforce. Having said that, however, it does not look good when defending a race-discrimination lawsuit if only 0.5% of your managers are African American. Companies should hire the best employees and fire the worst. Yet, you also need to think about what your business looks like, if for no other reason than having an “almost-all-white” management team is not going to make it any easier to defend the race claim brought by your lone black manager.

photo credit: Shereen M via photopin cc

Employers beware: EEOC appears to be stepping up disability discrimination enforcement

Last month, the EEOC announced that it was seeking “public input on potential revisions to the regulations implementing Section 501 of the Rehabilitation Act of 1973.” That Act governs employment of individuals with disabilities by the federal government, and was the ADA’s precursor. Without explanation, the Rehabilitation Act’s regulations impose an obligation on federal agencies to be “model employers” of individuals with disabilities; the EEOC is seeking to revise those regulations to provide a detailed explanation of that “model employer” obligation.

On the heels of that news, 10 of the 22 lawsuits filed or settlements reached by the EEOC in May included allegations of disability discrimination. That’s a .455 batting average for the ADA, which is none too shabby in anyone’s book. Some of the issues addressed by the EEOC in the past month include—

• A $72,500 settlement with an Akron, Ohio, medical transportation services company, which fired an EMT-paramedic with multiple sclerosis instead of providing additional leave as a reasonable accommodation.
• A $110,000 settlement with Norfolk Southern Railway Company, which medically disqualified a track maintenance worker because of degenerative disc disease without doing an individualized assessment of whether he could perform the essential functions of his job.
• A $90,000 settlement with a Tennessee nursing home facility, which terminated an HIV-positive nurse. 
• An $18,000 settlement with an Alabama athletic apparel retailer, which fired a legally blind sales clerk (who lost his full use of his sight while serving in the Army) without any consideration of whether an accommodation, such as a magnifying glass or a new computer monitor, might be reasonable.
• A lawsuit claiming a Wisconsin energy company fired an wheelchair-bound employee instead of providing his requested reasonable accommodation of an automatic door opener.
• A lawsuit claiming a Tennessee steel company refused to hire an applicant for a maintenance position after learning through a pre-employment medical examination that the applicant took prescription medications for an anxiety disorder and high blood pressure.
• A lawsuit claiming a Connecticut electrical contractor refused to hire a dyslexic carpenter, without first exploring any possible reasonable accommodations for his disability.

What do all of these cases have in common? They all involve employers that failed, in some way, to engage an employee or applicant in the interactive process to determine if he or she could perform the essential functions of the job with, or without, a reasonable accommodation. Instead, the employer appears to have made snap judgments based on the individual’s disability and related stereotypes.

Disability discrimination is very much on the EEOC’s radar. Is your business sufficiently protected? Answer these questions—

• Do you have a reasonable accommodation policy? 
• Do you have accurately written job descriptions? 
• Do your managers and supervisors know what the interactive process is, and how to engage in it? 
• Have you trained your employees on disability awareness and reasonable accommodations? 

Unless you have answered “yes” to each of these important questions, your business is exposed to potential disability-discrimination issues. Considering how closely the EEOC is looking at these issues, is this risk is one your business wants to take?

photo credit: ratsinis via photopin cc

WIRTW #323 (the "why I hate lawyers" edition)

YouTube is filled with examples of lawyers behaving badly. Yet, this example from Above the Law, entitled, “Pro Tip For Lawyers: Don’t Threaten To ‘Anally Rape’ Adversary,” takes the cake. Here’s a small taste:

You pissed off the wrong attorney. You want to beat up women and then play games with the legal system… well then you will get exactly what you deserve. After I get [my client] out of jail I’m going to gather all the relevant evidence and them I’m going to anal rape you so hard your teeth come loose. I tried working with you with respect. Now I’m going to treat you like the pond scum you are. Watch your ass you little [expletive deleted]. I’ve got you in my sights now.

The most astounding part? The lawyer posted this threat on Facebook. Good grief. 

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

Discrimination

• Can Employers Win a Case Where a Single Use of the N-Word Is Alleged? Perhaps — from Dan Schwartz’s Connecticut Employment Law Blog
• Stupid “discrimination” complaints: How should an employer handle? — from Robin Shea’s Employment & Labor Insider
• An ADA accommodation just has to be reasonable—not the employee’s first choice — from Eric Meyer’s The Employer Handbook Blog
• Don’t Lick Your Lips at Me. That’s Harassment! — from California Employment Law
• Disability-Related Inquiries: Don’t Ask! — from Employment Discrimination Report
• Age discrimination or legitimate termination? Firing a 65-year-old can be tricky — from HR Hero Line
• Avoid Accidentally Revealing Your Age with Your Email Address — from Lifehacker
• Pregnant Workers Need More Protection than Walmart’s Giving Them — from Workplace Fairness

Social Media & Workplace Technology

• How to grant employees access to social media at work — from Ragan.com
• O’Brien and the NLRB on Social Media — from Workplace Prof Blog

HR & Employee Relations

• My Boss Called Me Out Of The Delivery Room When My Wife Was In Labor — from Evil Skippy at Work
• Are Your Employees Takers or Givers? — from Molly DiBianca’s Delaware Employment Law Blog
• NPR and Progressive Radio Network on workplace bullying — from Minding the Workplace
• Are U.S. Employees Overworked or Not? — from Families and Work Institute Blog
• Are Employers Adapting to EEOC Guidance on Employment Background Checks? — from employeescreenIQ Blog
• There’s No Place in Your Workplace For Bullying Behavior — from TLNT
• Beyond Flip-Flops: Dress Code Policies for All Seasons — from ERC Insights Blog

Wage & Hour

• Number Of Wage And Hours Cases Increases For 7th Straight Year — from Overtime Lawyer Blog
• Before You Hire Those Summer Interns…. — from The Emplawyerologist
• Department of Labor Sets FLSA Regulation Deadline for November 2014, Final Regulations Unlikely to Arrive Before Spring 2015 — from Wage & Hour Insights

Labor Relations

• Uber, Lyft, & Sidecar Drivers Vote to Form Union in Seattle — from Blogging4Jobs
• Organized labor continues to branch out — from HR Hero Line

Why you should be paying your interns

Unpaid interns have been on the DOL’s hit list since 2010. I’ve warned employers that most unpaid internships have gone the way of the dodo, and you should be paying your interns at least the minimum wage, and overtime, for hours worked in excess of 40 in a week.

Now, we have some meat to put on the bones of this information. In Grant v. Warner Music Group Corp. (S.D.N.Y. 5/13/14), a former student intern for Warner Bros. Records sought a nationwide collective action on behalf of all similarly situated student interns, claiming that the company misclassified him exempt from the FLSA’s minimum wage and overtime requirements. The named plaintiff alleged that he typically worked 50 or more hours in a week performing the same type of work as paid employees, but was not paid and did not receive academic credit.

The FLSA only requires a “modest factual showing” for a court to certify a putative collective action, and authorize opt-in notices be sent to potential class members. In this case, the court concluded that Grant made that showing by putting forth facts that he and others suffered under a common policy or plan that violated the FLSA. Warner Bros. now has a nationwide wage-and-hour lawsuit to defend.

The burden for a court to certify a collective action under the FLSA is low, yet the risks are high. Many issues under the FLSA are fact-specific and rest on razor-thin distinctions. Unpaid interns, however, are the low-hanging fruit of the wage-and-hour laws. The money you will spend defending a wage-and-hour collective lawsuit will dwarf the money you would save by classifying your interns as “unpaid.” If you use the services of interns pay them, unless they are students, receiving academic credit for the internship, and the work they are performing for you is bona fide training and instruction to them. Otherwise, you are taking a huge gamble that is difficult to win.

NLRB judge gives booby prize to Hooters' workplace policies

In Hooters of Ontario Mills [pdf], an NLRB Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal polices in its employee handbook.

Alexis Hanson, a Hooter Girl in an Ontario, California, outpost of the beer-and-wings establishment, complained to management that she believed that bar’s annual bikini contest was rigged. After the contest, she was terminated for “cursing at” the winner and the store’s Marketing Director. When she protested that she hadn’t cursed at anyone, the manager changed her tune and told Hanson, “Okay. Well, then you are being terminated for your negative social media posts.”

The ALJ concluded that Hanson’s discharge was unlawfully motivated by her protected concerted activity (i.e., her complaints to the manager about the bikini contest). The ALJ was persuaded by the fact that the employer had failed to conduct an investigation before firing Hanson, and also by its shifting reasons for her termination. 

The ALJ also concluded that a variety of policies in the restaurant’s employee handbook were overly broad violations of employees’ rights to engage in protected concerted activity:

• NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination.
• Insubordination to a manager or lack of respect and cooperation with fellow employees or guests may result in discipline up to and including termination.
• Disrespect to our guests including discussing tips, profanity or negative comments or actions may result in discipline up to and including termination.
• The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party may result in discipline up to and including termination. This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
• Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by coworkers and clients. Refrain from posting negative comments about Hooters or coworkers. In all cases, NEVER publish any information regarding a coworker or customer.
• Any other action or activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business may result in discipline up to and including termination.

What are the takeaways from this case?

1. These employees were non-union. This case serves as a reminder that the NLRA’s protected-concerted-activity rules apply to union and non-union shops.
2. It’s debatable whether complaints about a workplace bikini contest constitute protected concerted activity. In this case, however, the ALJ appeared to be more persuaded by what the manager did not do in response to the complaints, as opposed to what the employee complained about. The manager did not investigate, and did not maintain a consistent reason for the termination. In other words, the reasons given for the terminated seemed to be a pretext to cover up something else—retaliation for Hanson’s protected concerted activity. The moral of this story? No matter the situation, thorough investigations and maintain a consistent story will save your bacon in many workplace lawsuits.
3. As often happens in theses cases, the termination served as an entre for the NLRB to review (and overturn) workplace policies as overly broad. If you don’t want the NLRB to see your policies, don’t fire employees for protected concerted activity. Most of these cases get to the Board because someone was fired, not because someone just decided, out of the blue, to challenge a handbook.

Prejudice vs. Racism: Please don't confuse the two

Last week, Inc. interviewed the billionaire, entrepreneur owner of the Dallas Mavericks, Mark Cuban. In light of Donald Sterling, racism was one of the topics covered. Mr. Cuban’s candid and honest response has sparked a wave of controversy:

If I see a black kid in a hoodie and it’s late at night, I’m walking to the other side of the street. And if on that side of the street, there’s a guy that has tattoos all over his face—white guy, bald head, tattoos everywhere—I’m walking back to the other side of the street. 

While we all have our prejudices and bigotries, we have to learn that it’s an issue that we have to control, that it’s part of my responsibility as an entrepreneur to try to solve it, not just to kick the problem down the road.…

Mr. Cuban has been wrongly crucified for his candor. Prejudice is human nature; it’s not bigotry or racism. We all hold prejudices. Bigotry and racism, however, imply intentional hatred. Crossing the street late at night because you see someone in a hoodie coming towards you does not mean you hate that person because you assume he’s black. Instead, it means you’ve been influenced by what you’ve seen, heard, or experienced, and that influence is causing a reaction.

Here’s the difference, from a Title VII perspective. If you learn of race-based comments or action in the workplace, you have an obligation to investigate and take appropriate corrective action reasonably to ensure that it doesn’t happen again. If you are dealing with racism, no corrective action will halt the behavior, and the only likely response is termination. If, however, you are dealing with unconscious prejudices, you can use the incident as a learning tool to open a dialogue with your employees about race.

In managing employees, it is unrealistic to expect them to hold no prejudices. Recognizing this fact is the first step to managing race in our workplaces.

WIRTW #322 (the “indestructible butterflies” edition)

One of the benefits of writing this blog is that, every once in a while, I get the opportunity to very publicly brag about one of my kids doing something awesome. Today is one of those days.

Last weekend, my 7-year-old, Norah, killed on stage, performing with her band for Strongsville’s School of Rock. The setlist:

• Twist and Shout — The Isley Brothers / The Beatles
• Time Warp — Rocky Horror Picture Show*
• Question — Old 97’s**
• Fortunate Son — Creedence Clearwater Revival

*For the record, even though, as you’ll see in the video, the Time Warp was my daughter’s add to the setlist, she’s never seen the movie. What kind of dad do you think I am? She learned the song from playing Just Dance 4.

**If you’re in the Cleveland area, the Old 97’s are playing the Beachland Ballroom on June 5. I’ll be there (with my wife and daughter). Please say hi if you’re there too.

Here’s the video of Saturday’s performance by Psycho Sister vs. The Indestructible Butterflies (yes, that’s the band’s name):

 

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

Discrimination

• Two-Undecillion-Dollar Demand Spells Trouble for Au Bon Pain — from Lowering the Bar
• Accommodation of Pregnancy Complications Under the ADA and FMLA — from Minnesota Employer
• Has IBM Found a Way Around the OWBPA and Should Others Follow? — from Dan Schwartz’s Connecticut Employment Law Blog
• Employment Litigation Lottery: IBM steps away — from Robin Shea’s Employment & Labor Insider
• Should A “Racist Tax” Or Fines Be Levied To Stop Racial Harassment? — from Employment Discrimination Report
• How Much Is Too Much to Settle a Sexual Harassment or Wage and Hour Case? — from Employment Lawyer Blog
• Three employees fired for posing at work in KKK garb and makeshift crosses claim discrimination. Yep. — from Eric Meyer’s The Employer Handbook Blog

Social Media & Workplace Technology

• Employers, If You Fire for a Facebook Post, Please, Get a Copy of It First! — from Molly DiBianca’s Delaware Employment Law Blog
• You won’t be able to stop reading this Twitter account that sends out random bits of overheard conversations in NYC — from Boy Genius Report

HR & Employee Relations

• Fired for What!? - Jay-Z v. Solange Fight Tape — from Phil Miles’s Lawffice Space
• What to Do When 20 Percent of Your Staff Is Pregnant — from Evil HR Lady, Suzanne Lucas
• Work-Life Balance: It’s About Choices and the Life You Really Want — from TLNT
• When MERS attacks! Are you ready? — from Mike Haberman’s Omega HR Solutions

Wage & Hour

• How to Avoid Intern Lawsuits this Summer Season — from In House
• The Use of Unpaid Interns: Is It Worth the Risk? — from The Employment Brief
• My Exempt Employee Has No PTO but Needs Time Off — from HR Daily Advisor
• I Don’t Always Round Time Entries, But When I Do...I Follow the FLSA Regs — from Wage & Hour Insights
• The Wage and Hour Litigation Epidemic Continues — from The Wage and Hour Litigation Blog
• Can an Employer Require a Doctor’s Note for Each Intermittent FMLA Absence? — from Jeff Nowak’s EMLA Insights

Labor Relations

• NLRB Continues to Increase Use of Section 10(J) Injunctions — from Management Memo
• NLRB Invites Briefs on Northwestern Case — from Labor Relations Institute
• Board ALJ Nixes Hooters Work Rules — from Labor Relations Today

Apparently, an employee doesn’t need to sign a noncompete for an employer to enforce it

I’ve always thought that for an employer to enforce a non-competition agreement against an employee, the employee actually had to sign the agreement. Two recent cases, however, suggest otherwise.

In Newell Rubbermaid Inc.v. Storm (3/27/14), a Delaware Chancery Court enforced a “clickwrap agreement”—that is, the employee only received an electronic copy of an equity compensation agreement, which included a non-competition agreement buried within. Instead of signing the agreement, she clicked an “Accept” button on a pop-up on her computer monitor. According to the court:

Newell’s method of seeking Storm’s agreement to the post-employment restrictive covenants, although certainly not the model of transparency and openness with its employees,  was not an improper form of contract formation…. Storm admits that she clicked the checkbox next to which were the words “I have read and agree to the terms of the Grant Agreement.” This functions as an admission that she had the opportunity to review the agreement (even if she now states she did not read it despite her representation that she did) upon which Newell was entitled to rely. Her actions of clicking the checkbox and “Accept” button were manifestations of assent…. It is not determinative that the 2013 Agreements were part of a lengthy scrolling pop-up. Storm’s failure to review fully the terms (on a 10-page readily accessible agreement) to which she assented also does not invalidate her assent.

In PharMerica Corp. v. McElyea (5/19/14), an Ohio federal court went one step further, and enforced a non-competition agreement that the employee had never signed at all. Shortly before resigning to work for a direct competitor, McElyae, a salesperson, copied all of her PharMerica files—including client lists, pricing information, and contracts—from her PharMerica-owned computer to a thumb drive. Under those circumstances, the court had no problem enjoining the employee from working for the competitor, even though she had never signed the non-competition agreement PharMerica presented to her.

Defendants also argued that unless Plaintiff can prove a non-compete agreement exists, the Court may not enter an injunction unless McElyea has already disclosed trade secrets. But some Ohio courts do permit injunctions in the absence of a non-compete agreement and without a prior instance of disclosure when “the former employee possessed timely, sensitive, strategic, and/or technical information that, if it was proved, posed a serious threat to his former employer’s business or a specific segment thereof.” The Court finds that PharMerica has shown its confidential information, if disclosed, would pose a serious threat to its business.

Often, non-compete cases are more about the equities than the law—did the employee act in a way that makes it unfair for he or she to compete against a former employer. As these cases illustrate, when an employee acts egregiously (takes a whole bunch of stock as consideration for a non-compete, or steals a whole bunch of documents on her way out the door), courts are willing to overlook things like as whether a non-compete was conventionally, or even actually, signed.

Two cups, one termination

Cause for a termination is often in the eye of beholder. Or, to put it another way, what might seem trivial to one can be a big enough deal to another for a termination.

Case in point? Stine v. Central Ohio Gaming Ventures (Ohio Ct. App. 5/20/14) [pdf], in which the court concluded that an employee caught stealing two inexpensive plastic cups was fired for cause, and therefore not entitled to collect unemployment. 

Stan Stine worked for one of Ohio’s new casinos. During his employee orientation, he was given an inexpensive plastic drinking cup (with lid and straw!), bearing the casino’s logo. When his cup broke, he asked an employee in the HR department for a replacement. After HR advised Stine that it’s policy is one cup per new hire, he took matters into his own hands. He removed two cups from the training room and stashed them in his locker. Security discovered the theft, and the casino terminated him following an investigation.

The casino, and the court, relied on the following policy to support the termination:

Theft (unauthorized removal) or misappropriation (unauthorized storage, transfer, or utilization) of the property of guests, Team Members or Hollywood Casino Columbus.… Any unauthorized property found in a Team Member’s possession will be considered theft and grounds for immediate separation.

You might think that the taking of few plastic cups is trivial. To this employer, a casino, I can assure you it is not. To a casino, a no-theft rule is its lifeblood. This employer cannot set a precedent that it is acceptable to take anything without permission, no matter how small. If a casino is going to overlook this offense, how can it enforce a no-theft rule when a dealer pockets a $1 chip? What work rules do you have that are specific or unique to your business? Think about it next time you are considering firing someone. What’s trivial to someone else might be life-or-death to your business. 

This week in racism (part 2): Macklemore

Last night, I caught up on Louie on my DVR. At the end of the episode, Louis CK made the following observation about love:

How do you know when you really love someone? When you can reveal your secret racism to them.

Well, damn, Macklemore must love us all, because at a concert Sunday night he performed dressed as a stereotypical Jew—wig, beard, and large, stereotypical hook nose—while singing a song about saving money (photos here).

For his part, the rapper denied any anti-Semitic intent, tweeting, “A fake witches nose, wig, and beard = random costume. Not my idea of a stereotype of anybody.” He later posted a half-hearted apology on his website, again claiming the getup was unintentional.

When you are conducting investigations in your workplace, let common sense be your guide. If it looks like a bigoted stereotype, and dresses like a bigoted stereotype, no amount of implausible deniability will make it anything other than a bigoted stereotype. Does anyone really believe that wearing a big hooked nose while singing about money was unintentional? Use your BS sensor to sift out the nonsense and reach the truth of the matter. It will make your workplace investigations that much smoother.

Until tomorrow:

 

This week in racism

If you’re a public figure and you’re caught calling the President “that f—king n-----,” do you:

1. Apologize profusely in a vain effort to save your job, or
2. Say, “I believe I did use the ‘N’ word in reference to the current occupant of the Whitehouse. For this, I do not apologize—he meets and exceeds my criteria for such.”

If you’re Robert Copelamd, the 82-year-old police commissioner of Wolfeboro, New Hampshire, the answer, sadly, is the latter.

According to CNN, the town is powerless to remove Copeland, who is adamant that he will not resign.

So, if you’re an employer, and one of your managers acts akin to Copeland, what do you do? After reading my blog for the past seven years, I hope you know that the only possible answer is to fire Copeland. You cannot have a manager going around spouting off racist nonsense. We lately seen a lot of old, white men spewing racist stuff (see Donald Sterling). Employers must be vigilant in rooting out, and stopping, these attitudes in the workplace, or face the consequences of potentially damaging, and expensive, discrimination lawsuits.

WIRTW #321 (the “quality vs. quantity” edition)

Are you too busy? Is the quality of your output suffering because of the quantity of your commitments (professional and personal)? This article from the Wall Street Journal offers some suggestions on how to (re)gain and keep balance in your life. 

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

Discrimination

• Release of Claims Means Exactly What It Says – Even When It Doesn’t — from Suits by Suits
• Former Top Woman at Anheuser-Busch Sues for Sex Discrimination — from Workplace Fairness
• I Can Be There, Even If I’m Not There: More Support That Telecommuting May Be A Reasonable Accommodation — from Employment Law Lookout
• Dear Evil Skippy: Is It Harassment To Make Your Assistant Bring Coffee? — from Evil Skippy at Work
• Lawrence Mitchell Threesomes And Other Startling Allegations In Affidavit — from Above the Law
• Happy Mother's Day! Q & A on pregnancy and lactation accommodation Robin Shea’s Employment & Labor Insider
• Yes, Employers, Words Really Do Matter — from Next Blog

Social Media & Workplace Technology

• My employee deleted all of her work emails and quit. Can I sue her for that? — from Eric Meyer’s The Employer Handbook Blog
• The Role of a Distracted-Driving Policy in a BYOD Workplace — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Tips for Avoiding Liability for Trade Secret Misappropriation Concerning the Hiring and Departure of Employees — from Trading Secrets
• Yahoo Accuses Ex-Employee of Taking Patent, Trade Secrets to Startup — from Law.com
• Telecommuting dealt another blow — from Mike Haberman’s Omega HR Solutions
• ENGAGED EMPLOYEES AGREE: Your Offers of Additional Time Off..Well, They Suck — from The HR Capitalist, Kris Dunn
• First Amendment and the Workplace: An Update — from Dan Schwartz’s Connecticut Employment Law Blog
• Don’t Get Duped by Puffery: How to Recognize Résumé Fraud — from Evil HR Lady, Suzanne Lucas
• Corporate Employment Practices and D&O Liability Exposure — from The D & O Diary

Wage & Hour

• Are Employer-Mandated Anger-Management Counseling Sessions Considered Compensable Time? — from The Blue Ink
• The 20% Rule for Tips is Back in the News — from Wage & Hour Insights
• FLSA Violations Provoke Criminal Referral — from Wage and Hour Laws Blog
• NFL Cheerleaders Face Arbitration Motion — from Phil Miles’s Lawffice Space
• Employers May Move Workers With High Medical Costs to Exchanges — from TLNT

Labor Relations

• Are Student Athletes “Employees”?? — from The Emplawyerologist
• Goodbye Precedent, Hello Forced Speech? — from Social Media Employment Law Blog

A bird in the hand? Court refuses to compel lewd picture in harassment case

Laverne Battle claimed that her supervisor at the District of Columbia Metro Police Department texted from his cell phone to her cell phone, a picture of him holding his penis is his left hand. To support her sexual harassment claim, battle sought to compel seeks to compel the supervisor to produce a photograph of his left hand and penis for the purpose of comparison. 

In Battle v. District of Columbia, the court weighed the need for the photo versus the privacy interest of the alleged harasser. On balance, the court refused to order the production of a picture of his penis. The hand, however, was a different story. 

After in camera review of the grainy, poorly-lit photograph at issue, the Court is skeptical of plaintiff's confidence that a photograph of Sergeant Pope's penis would be of any comparative value. Nor is the Court satisfied that there is no less intrusive alternative to requiring Sergeant Pope to produce a photograph of his penis. The Court accordingly concludes that plaintiff's request is too speculative at this point to overcome defendant's privacy interests.

However, Sergeant Pope's salient privacy interests do not extend to his hand, which is routinely subject to public view. Accordingly, the Court will grant plaintiff's motion in part and order Sergeant Pope to produce to the plaintiff and submit to the Court for in camera review a photograph of his left hand (including thumb and forefinger) held in a similar position as that in the photograph at issue.

Bravo for creativity, but let me suggest a less intrusive, and more conclusive, alternative to the racy pic. How about a forensic exam of the phone that sent the photo? 

Should you check your employee's social media accounts?

Monday’s Wall Street Journal had a compelling counterpoint about whether employers should be checking their employees’ social media accounts. Nancy Flynn, the founder and executive director of the ePolicy Institute, presented the pro, while Lewis Maltby, the president of the National Workrights Institute, presented the con.

Ms. Flynn argued that keeping an eye on employees’ online activities helps companies help themselves.

Management has a right and responsibility to monitor how employees are using social media at all times. If companies don’t pay attention, they may end up facing any number of serious problems. It’s all too easy for disgruntled or tone-deaf employees to go onto social media and criticize customers, harass subordinates and otherwise misbehave. Sometimes that can bring workplace tensions and complaints, sometimes it can damage a company’s reputation in the marketplace, and sometimes it can lead all the way to lawsuits or regulatory action.

Mr. Maltby argued that examining employees’ online activities often results in an unreasonable fishing expedition.

Yes, employers have a legal right to monitor employees’ conduct on their work computers. But the only time employers have a legal duty to monitor employee communications is when the employer has reason to believe that the employee is engaged in illegal conduct.… The fact is, the vast majority of what employees do on the Internet has nothing to do with work, takes place during their private lives and is done on their personal computers. Once again, employers should get involved with employees’ private lives only when there is reason to be concerned.

Who’s right? Do employers have a right to monitor employees’ social media accounts, or is this an invasion of their personal lives? Is believe that there is nothing private about social media. Even outside of work, what employees say on their not-so-private social pages can impact their employer? Do they post racist, sexist, or other inappropriate statements? Do they divulge confidential information about their workplace? Are they engaging in conduct that would.make them unfit for employment (like illegal drug use)? 

The reality is that employees who believe that what they say on their personal social media sites, away from the workplace, is off-limits to their employer, operate under a grand misconception. Like it or not, we live in a world where, thanks in large part to social media, the line between the personal sphere and the work sphere no long exists (or if it exists it’s really blurred). Employees that fail to recognize this fact take a huge risk.

Dont' be that boss: company pays big for use of the n-word

If you’re African-American, your boss (who happens to be the president’s son and part owner) calls you and other African-American employees a “n***er,” and places a handgun on his desk for intimidation whenever meeting with African-American employees, do you have a case for discrimination and harassment? You bet you do.

Those were the facts in Smith v. Superior Production (Ohio Ct. App. 5/8/14) [pdf], in which the trial court had tossed out a $550,000 jury verdict in favor of a laid-off African-American employee working under those conditions.

One issue in the case was the commonness of the use of the n-word. The majority opinion concluded that the use of the n-word, coupled with the brandishing of a handgun, was sufficient to sustain the jury’s verdict:

Reasonable minds can easily conclude that Holstein’s use of the n-word, directly to Smith, while on the production floor, at the same time telling him to go home, was humiliating. The trial court also disregarded the other testimony, including testimony about laying a cocked firearm on the desk when Holstein talked to Smith. Further, the trial court improperly discounted other evidence of a hostile work environment. The trial court argued that racially offensive language was bantered around the plant, but it was not humiliating because it was not directed at Smith most of time. The trial court also argued that Smith was not subject to a hostile work environment even though he was intimidated when Holstein would routinely pull his gun out of a drawer, cock it, and then set it on the desk when meeting with Smith.

The dissent, however, disagreed:

The majority decision also points to management’s common use of “n___” in the workplace as evidence of discriminatory animus. Smith testified that, during the ten-year period between 1998 and 2008, he heard five people—three co-workers, one of Superior’s owners, and Holstein—refer to African Americans as “n___s” in the workplace. Smith, however, failed to testify as to how frequently he heard that racial slur. Given this gap in the evidence, I do not believe that a factfinder could conclude that the use of  “n___” was common. 

How does one reconcile this differing opinions? You don’t. Instead, you understand that while differing minds could come to different decisions, the behavior exhibited in this case is abhorrent and has no place in your workplace. Have a strong anti-discrimination and anti-harassment policy. Train your employees on what it means. Take a zero-tolerance stance on this type of behavior. That way, you should never have to worry about what a judge or jury will do with these types of facts.

If you're caught sunbathing nude, on the roof of your elementary school-employer, don't sue for retaliation

Charles Davis is a long-time custodian for Unified School District No. 500. In 2007, he was caught on the roof of the elementary school at which he worked, sunbathing, in the nude. Instead of firing him, the school board suspended him for 30 days without pay and demoted him. Over the next five years, he applied for seven different head custodian jobs with the district. Each job went to a different applicant. Davis filed three different charges with the EEOC stemming from those rejections, first for race discrimination, and later for retaliation.

In Davis v. Unified School District No. 500, the 10th Circuit upheld the district court’s dismissal of Davis’s retaliation claim:

In a nutshell the key issue is whether a common purpose to retaliate against Davis must be inferred from the sheer volume of his promotion denials; we think not when seven independent and informed decision makers are involved.

Some employees are unworthy of protection by the anti-retaliation laws. Yes, Davis filed many EEOC charges claiming discrimination resulting from his employer’s failure to promote him. But, he was also caught sunbathing, nude, on the roof of the elementary school at which he worked. One decision maker would be justified in concluding that Davis was unworthy of a promotion. Seven different decision makers reached the same conclusion. Thus, barring evidence of a grand conspiracy against Davis because he had filed some EEOC charges, he could not prevail on his retaliation claim.

The moral of the story: not all protected activity is protected.

(Hat tip: Judy Greenwald at Business Insurance)

WIRTW #320 (the "did you hear the one about…?" edition)

After the week I’ve had, I think some humor is in order. Apparently, I’m not the only one. This article from the Wall Street Journal suggests that companies can connect better with their employees and customers with levity. 

And any good HR manager can tell you that workplace satisfaction — not compensation — is the best predictor of employee retention. Humor can be a powerful tool in inter-office communications, as research has shown that it’s a useful way to cope with pain, stress and adversity (in other words, staff meetings).

Here’s the rest of what I read this week

Discrimination

• FACT OR FICTION: There is such a thing as a reverse-disability claim? — from Eric Meyer’s The Employer Handbook Blog
• Physical attendance not required? ADA and telecommuting, cont’d — from Walter Olson’s Overlawyered
• Second Circuit Rejects Hostile Work Environment and Retaliation Claims — from Minnesota Employer
• Employers: Don’t Retaliate Even After The Employee Is Gone — from Employment Discrimination Report
• The Disability of the Future Workplace? — from Blogging4Jobs

Social Media & Workplace Technology

• #SocialMediaFail: PayPal director Rakesh Agrawal Departs After Troubling Tweets — from Shear on Social Media Law
• 8 Great iOS Apps That Have Nothing To Do With Practicing Law — from Lawyerist
• State Business Courts – New Rules for Tech Disputes — from Augmented Legality
• Will The Sixth Circuit Get ‘A Rise’ Out Of This Former Bengal Cheerleader’s Dirty Case? — from Abovethelaw.com
• 7 Ways Twitter has Changed Over the Years — from Social Media Strategies Summit Blog

HR & Employee Relations

• DON’T GO VIRAL: Donald Sterling, et al., and off-duty conduct — from Robin Shea’s Employment and Labor Insider
• Should You Be Outsourcing Your Human Resource Management Needs? — from Mike Haberman’s Omega HR Solutions
• ‘Work/life’ balance isn’t your employer’s problem—it’s yours — from Ragan.com
• Millennials @ Work — from SHRM Blog
• US Senate Bill Targets Credit Checks and FCRA Reform — from employeescreenIQ Blog

Wage & Hour

• Uncovering FMLA Abuse – With a Little Help From Big Data — from TLNT
• Agencies Release Exchange-Related COBRA Guidance — from E is for ERISA

Labor Relations

• Filing a Wage and Hour Class Action is Protected by the National Labor Relations Act — from Wage & Hour Defense Blog
• Employer Email Policies on Chopping Block as General Counsel Seeks to Overrule Register Guard and Board Calls for Amicus Briefs — from Labor Relations Update
• NLRB Inviting Briefs on Whether Union Supporters May Use Company Email for Union Activities — from Wyatt Employment Law Report
• House To Hold Hearing On Student/Athlete Unionization — from Labor Relations Today
• The End of Register-Guard? — from Workplace Prof Blog
• Will Your Social Media Policies and Practices Pass NLRB Muster? — from The Emplawyerologist

Until next week…

EEOC continues fight against severance agreements,while employers fight back

Earlier this year, I reported on a groundbreaking lawsuit the EEOC filed against CVS challenging as retaliatory some garden-variety provisions in employee separation agreements (here and here). 

Earlier this week, the EEOC reported that it has filed a similar lawsuit in Colorado, against CollegeAmerica. From the EEOC’s news release:

Debbi D. Potts, the campus director of CollegeAmerica's Cheyenne, Wyo., campus, resigned in July 2012 and signed a separation agreement in September 2012 that conditioned the receipt of separation benefits on, among other things, her promise not to file any complaint or grievance with any government agency or to disparage CollegeAmerica. These provisions would prevent Potts from reporting any alleged employment discrimination to the EEOC or filing a discrimination charge.…

The EEOC also claims that provisions which similarly chill employees’ rights to file charges and cooperate with the EEOC exist in CollegeAmerica’s form separation and release agreements, routinely used with its employees.…

“Rights granted to employees under federal law, like the right to file charges of discrimination and participate in EEOC investigations into alleged discrimination in the workplace, cannot be given up in agreements between private parties,” said Mary Jo O’Neill, Regional Attorney for the EEOC’s Phoenix District Office…. “Otherwise, employers could easily do an end run around the law, employees would not be free to complain about discrimination, and the EEOC would never learn about violations of the law or have an opportunity to enforce it.”

Meanwhile, CVS is fighting back against the EEOC in its lawsuit. CVS has asked the district court to dismiss the complaint in its entirety, cap arguing that the mere inclusion of terms in a severance agreement does not violate Title VII. Business groups are also weighing in, the court has granted permission to the Retail Litigation Center to file a brief in support of CVS’s motion to dismiss. 

I continue to believe that this issue is the most important issue to employers that the EEOC is currently litigating. 

It is becoming clear that the CVS lawsuit was not an anomaly, and that challenging these types of provisions in severance agreements is high on the EEOC’s radar. For now, however, I think employers should take a wait-and-see approach. This issue is too important for employers to knee-jerk pull these key clauses from their agreements.

For now, what I wrote in February (which includes a draft carve-out) still holds true:

Don’t shred your settlement and severance agreements just yet.… Modify your agreements to bolster and clarify the protected-activity carve-out.… Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

How flexible are our modern workplaces?

As I type, I’m 30,000 feet above Pennsylvania, flying to see my dad, who’s waiting in the hospital for surgery. As you read, i’m probably sitting somewhere on the campus of the Hosptial of the University of Pennsylvania. I share these facts not for well wishes, but because today’s post happens to be about workplace flexibility. 

Last week the Families and Work Institute and the Society for Human Resource Management published the results of their National Study of Employers, which revealed three interesting facts about the role of flexibility in the modern workplace.

1. The smaller the employer, the greater the flexibility. Employers with between 50 and 99 employees are more likely than employers with 1,000 or more employees to offer the following work-flex benefits:

• Change starting and quitting times within an accepted range of hours (33% versus 20%)
• Work regular paid hours at home occasionally (11% versus 4%)
• Control over when to take breaks (66% versus 52%)
• Return to work gradually after childbirth or adoption (53% versus 37%)
• Take time off during the workday to attend to important family or personal needs without loss of pay (52% versus 36%)

2. Telecommuting is on the rise. More employers are providing occasional telecommuting (67%) for at least some employees than in 2008 (50%).

3. Flexibility, child care, and elder care lead to increased employee retention. Thirty-five percent of employers cite “retention” as the key reason for providing flexibility, along with child and elder care assistance. 

Two weeks ago, I wrote on telecommuting as a reasonable accommodation under the ADA. The more I think about the impact of mobile technology on the workplace, the more I am convinced that the 6th Circuit got it right. There is no excuse for an employer to be inflexible with those of its employees for whom it is feasible to work remotely. If an employee is performing, then it doesn’t matter where the employee performs. If the employee isn’t performing, treat it as an indictment of that employee, not an indictment on telecommuting as a practice or standard. 

Potty mouthed employees

Most non-union employees are at-will, which means you can fire them for any reason, good, bad, or for no reason at all (as long as some other law, such as discrimination laws, doesn’t trump). So, if an employee has a potty mouth, you can fire her, right? Not so fast, says an unemployment hearing officer in Iowa.

Wellma “Tootie” Shafer worked for 18 months as a cashier at the Last Chance Market in Russell, Iowa. The market sells the following products:

• “Wake the F— Up” coffee
• “The Hottest F—in’ Nuts”
• “The Hottest F—in’ Sauce,” which is labeled as having an “ass-burning” quality

The store also boasts a metal sign by the entrance that reads, “Shirts and shoes are required, but bras and panties are optional.”

It seems that Tootie liked to talk to some of customers about “dirty, adult situations.” After some eavesdropping customers complained, her boss, Rick Braaksma, fired her. At the unemployment hearing, the hearing office took Braaksma to task for his apparent double standard. From The Des Moines Register:

After Braaksma testified that he doesn’t tolerate dirty jokes in his store, Administrative Law Judge Beth Scheetz asked him, “So why don’t you remove these articles from your shelves?” 

“Because we sell them,” he said. 

“They are dirty jokes on your shelves, basically,” Scheetz said. 

“No, they’re bottles of hot sauce,” Braaksma responded. “It’s all right to have dirty words on the premises because the farmers come in there and eat lunch all the time and that’s just, uh, kind of —” 

“So dirty words are OK,” Scheetz said. 

“Yeah,” Braaksma said, “but there’s a time and a place for it.”

I can make a really good argument that once a customer complains about an employee’s potty mouth, the game changes (even if the store sells f’n coffee). If someone complains about harassment, an employer should investigate, and, if necessary, reasonably remediate. In this case, the employer decided to terminate. This judge, in this context (an unemployment claim), saw it differently. 

The NLRB is looking to overturn email solicitation rules

In Register Guard, the NLRB held that an employer’s solicitation or other communication policy can lawfully bar employees’ non-work related use of an employer-owned email system, unless, on its face, it discriminates against employees’ exercise of Section 7 rights. Thus, under Register Guard, a policy that prohibits employee use of an email system for “non-job-related solicitations” does not violate the NLRA, even if the very nature of that ban includes union-related solicitations.

The NLRB decided Register Guard in 2007, near the tail-end of the Bush-era Board. Now, it’s 2014, and the current Obama-era Board is taking a look at Register Guard. 

The Board has posted a notice [pdf] asking advocates to submit position briefs covering each of the following five issues:

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established? What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

The notice is in response to an ALJ’s decision in Purple Communications, Inc., holding that an employer did not violate the Act by prohibiting use of its electronic equipment and email systems for activity unrelated to its business purposes. 

By all appearances, the NLRB appears to be looking for a reason to reverse Register Guard, and issue a rule under which a facially neutral email policy is nevertheless illegal if one could reasonably read it to restrict employees’ rights to engage in protected concerted activity. While this re-imagining of Register Guard would be consistent with the NLRB’s more recent positions in social media and other workplace communication cases, it is nevertheless concerning for employers and bears monitoring as this important issue weaves its way through the NLRB. 

WIRTW #319 (the “photocopier” edition)

Do you want to lose credibility, either as a lawyer or a witness? Spend seven minutes during a deposition arguing over the meaning of “photocopier.” Watch this video from The New York Times, which is a dramatic retelling of a deposition from a case decided by the Ohio Supreme Court in 2012.

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

Discrimination

• Sixth Circuit and Essential Functions — from Workplace Prof Blog
• Do you have a Donald Sterling in your midst? — from Next Blog
• The EEOC’s $2 Million Same Sex Workplace Decision — from Blogging4Jobs
• Telecommuting as reasonable accommodation? Sure, but not in this case — from Robin Shea’s Employment and Labor Insider
• Michigan Employers Must Consider Telecommuting as a Reasonable Accommodation — from Michigan Employment Law Advisor
• EEOC v. Ford Accelerates Telecommuting Issues — from Corporate Counsel
• Employee Allergic To Service Dog At Work: Rights In Conflict — from Employment Discrimination Report

Social Media & Workplace Technology

• Dumb Bosses and Camera Phones - Not a Good Mix for your Company — from Michigan Employment Law Advisor
• 7 Ways Twitter has Changed Over the Years — from Social Media Strategies Summit Blog
• Job hunting? Take a closer look at your Facebook page — from Evil HR Lady
• How Private is Private Browsing? — from Ride The Lightning
• Jurors’ Private Social Media Is Off Limits, ABA Tells Lawyers — from WSJ.com: Law Blog

HR & Employee Relations

• Employee committed firing offense? Terminate ASAP–or else prepare for court — from Business Management Daily
• Swift Investigation of Sterling-Clippers Discrimination Incident Well Played — from i-Sight Investigation Software Blog
• 7 signs it’s time to hire in-house HR — from MonsterThinking
• Apple and Google will settle no-poaching conspiracy lawsuit — from Boy Genius Report
• Are FCRA Class Actions A New Form Of Wage & Hour Lawsuits? — from Workplace Class Action Litigation

Wage & Hour

• Why a Quarter of Americans Don’t Trust Their Employers — from Harvard Business Review
• Senate Confirms Controversial New Wage and Hour Administrator — from TLNT
• My Salaried Employee Has No PTO But Needs Time Off—What Can I Do? — from HR Daily Advisor
• Buffalo Jills Boo Bosses but Lawsuit Raises Question: Are NFL Cheerleaders “Employees” Protected by Minimum Wage Laws? — from Suits by Suits
• I’m an Executive, You’re an Executive, We’re All Executives! 8th Circuit Lowers the Bar for FLSA “Executive” Exemption — from Wage & Hour Insights
• Exotic Dancers - Employees or Independent Contractors? — from Phil Miles’s Lawffice Space

Labor Relations

• Social Media Policies — ALJ Disregards Guidance From NLRB General Counsel — from HR Defense Blog
• NLRB Will Consider the Northwestern Football Player Ruling — from All in a Day’s Work
• What employees say on social media may be protected speech — from MonsterThinking
• ALJ strikes social media policy disclaimer for work-related speech — from Eric Meyer’s The Employer Handbook Blog

With workplace social media, don’t be like Nero

Legend tells us that Nero sat and played his fiddle while Rome, the capital of his empire, burned. Sadly, according to a recent survey, Social Media in the Workplace Around the World 3.0 [pdf], many employers are taking the same approach with their employees’ use of social media.

81% of employers surveyed report that they foresee the misuse of social media by employees becoming more of any issue in the future. Yet, only 53% have updated their social media policies in the past year, and only 37.5% provide employees any training on the appropriate use of social media. Meanwhile, 71% report having to take disciplinary action against employees for social-media misuse (more than double the number from 2012).

What do these numbers mean? Employers are not proactively getting out in front of a known problem.

Social media changes with the blink of an eye. Two years ago, many had never even heard of Twitter; now it boasts more than a billion registrants. New social sites debut at a lightning pace. Employers need flexible, changeable policies to adapt to these evolving technologies. Moreover, a policy is not worth the paper on which it’s printed unless you also provide meaningful, common-sense training to your employees.

It’s great news that employers perceive social media as a workplace problem that’s not going away. It’s disheartening, however, that so many are choosing to do nothing about it.

Your corporate message against discrimination must start at the top

By now, you’ve likely read about Donald Sterling, the now-banned owner of the Los Angeles Clippers, caught on tape by his ex-girlfriend making racist comments.

This story teaches an important lesson about corporate culture and your workplace. If your company has a culture of condoning this type of behavior, no policy, and no amount of training, will render it safe. You need to decide what kind of company you want to be, and set the tone all the time. Then, when any employee (including the CEO or owner) is accused of racism, sexism, or any other illegal -ism, employees will have confidence that your company will arrest the offending behavior quickly and severely.

Kudos to the NBA for taking swift action against Sterling. Your business likely does not require the same type of pubic response made by the NBA. However, the NBA’s swift and decisive action tells all of its employees that racism has no place in its league.

What does an appropriate corporate response to this level of intolerance look like? Here are some of the comments of NBA Commissioner Adam Silver (via USA Today):

The views expressed by Mr. Sterling are deeply offensive and harmful; that they came from an NBA owner only heightens the damage and my personal outrage.

Sentiments of this kind are contrary to the principles of inclusion and respect that form the foundation of our diverse, multicultural and multiethnic league.

I am personally distraught that the views expressed by Mr. Sterling came from within an institution that has historically taken such a leadership role in matters of race relations and caused current and former players, coaches, fans and partners of the NBA to question their very association with the league.

To them, and pioneers of the game like Earl Lloyd, Chuck Cooper, Sweetwater Clifton, the great Bill Russell, and particularly Magic Johnson, I apologize.… This has been a painful moment for all members of the NBA family. I appreciate the support and understanding of our players during this process, and I am particularly grateful for the leadership shown by Coach Doc Rivers, Union President Chris Paul and Mayor Kevin Johnson of Sacramento, who has been acting as the players’ representative in this matter.

We stand together in condemning Mr. Sterling’s views. They simply have no place in the NBA.

No good comes from asking medical-related questions during interviews

Sjöstrand v. The Ohio St. Univ. (6th Cir. 4/28/14) [pdf] is an ADA case, but not an employment case. It involves a graduate school applicant claiming that OSU denied her admission because of her Crohn’s disease. In support of her claim, Sjöstrand pointed to her admission interview, during which she claimed each interviewer spent about half of their time discussing her Crohn’s disease. She claimed that because she tied for the highest GPA in the applicant pool, and her GRE scores exceeded the school’s requirements, her disability was the only rational explanation for her rejection.

The 6th Circuit reversed the trial court’s dismissal of Sjöstrand’s ADA claim:

Yet according to Sjöstrand’s testimony … neither of her interviewers even mentioned any of the putative reasons why her application was rejected, and each interviewer instead devoted about half the interview to a discussion of her Crohn’s disease. The resulting inference is that the interviewers’ real concern—and thus the reason they rejected Sjöstrand’s application—was her Crohn’s disease.

OSU could have perfectly legal reasons for rejecting Sjöstrand’s application. In fact, the school listed five different reasons. However, as this case demonstrates, the questioning about her medical condition during the interview tainted the entire process.

In the employment context, it is per se illegal to make any disability-related inquiries before you make a conditional job offer. If you ask medical questions during a job interview, you have violated the ADA whether or not you ultimately hire the individual. If you don’t hire the individual, those illegal questions will likely taint your hiring process beyond the point of no recovery.

It behooves you to communicate this message to anyone who interviews for you. Even though Sjöstrand is not an employment case, it’s a great illustration of what can go wrong when an employer interjects an applicant’s medical issues into the interview process.

NLRB judge says employee cannot require its employees to disclaim social media posts

The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.

In The Kroger Company of Michigan [pdf], and NLRB administrative law judge concluded that Kroger’s Online Communications Policy—which required that it’s employees post the above-quoted disclaimer along with the publishing of any work-related online content—was illegal.

The ALJ conceded that Kroger’s has a legitimate interest in limiting unauthorized communications. Nevertheless, the perceived over-breadth of the policy trumped the employer’s legitimate interest:

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would never—ever—withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech. 

How does a statement by an employee, on the employee’s personal Facebook page, that the posts are his and not his employer’s, chill an employee from expressing an opinion about work? To the contrary, this disclaimer would seem to have the opposite effect, freeing the employee to talk about work because he or she has already disclaimed that the post is merely the employee’s personal opinion, and not an official statement of the employer.

As Eric Meyer pointed out in discussing this decision last week, Kroger merely serves to add to the confusion that already exists around workplace social media policies. As for me, I see little harm in these types of disclaimers.