WIRTW #343 (the “trick or treat” edition)

True confession—I do not like Halloween. I never did. As a kid, I tolerated the holiday because it brought a bounty of candy. As I aged out of trick or treating, however, whatever soft feelings I had for the holiday devolved to hardened ire. The only good thing about Halloween is that it makes way for the Godfather I and II of holidays, Thanksgiving and Christmas. 

Here’s some stuff you need to know about Halloween and your workplace.  

• Employers Beware: Five Tips for Celebrating Halloween in the Workplace — via Employment Intelligence
• Halloween in the workplace? Bah! Humbug! — via Robin Shea’s Employment & Labor Insider
• 5 Tips For Your Office Halloween Party — via The Evil HR Lady, Suzanne Lucas, writing at Inc.com
• Top 5 fears workers have about their jobs — via Cleveland.com

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

Discrimination

• More Transgender Discrimination as Sex Discrimination — via Phil Miles’s Lawffice Space
• LGBT charges are rolling in, EEOC Commissioner says — via Robin Shea’s Employment & Labor Insider
• One-Armed Security Guard Wins ADA Case — via Minnesota Employer
• Employer must consider “job restructuring” if such restructuring would accommodate disabled employee without undue hardship — via Employment Law Matters
• EEOC is Challenging Some Corporate Wellness Programs as Violating the ADA — via Texas Employment Law Blog
• How Courts View Post-Employment Retaliation Claims — via Corporate Counsel
• OCR issues dear colleague letter on bullying on the basis of disability — via Understanding the ADA
• The Taller You Are, The More Your Income: We Re-Visit Appearance Bias — via Employment Discrimination Report

Social Media & Workplace Technology

• Social media blunders cost a chef and a chief their jobs — via Eric Meyer’s Employer Handbook Blog
• PGA President Fired For Calling Ian Poulter "Lil Girl" On Twitter — via Deadspin
• Is Ello something — or not? — via Real Lawyers Have Blogs
• Disruptive Technology in the Workplace: Employment Law Considerations — via Technology Company Counselor
• 5 best practices for lawfully monitoring your employees’ social media activities — via The Philadelphia Business Journal
• Do you know what apps your employees use? — via WSJ.com
• A Perk of BYOD Policies at Work — via Next Blog

HR & Employee Relations

• Is the Future of the Desk a Coffee Shop Table? — via Blogging4Jobs
• Bad bosses literally can make you sick, research finds — via NorthJersey.com
• Dazed and confused: Unemployment benefits OKed for Michigan medical marijuana users — via Employer Advocate
• Today in Small Business: When the Ebola Virus Touches a Business — via You’re the Boss Blog
• Say, What?! The 12 Worst Things An Intern Can Say At Work — via Workplace Diva
• Yes, You Really Do Need to Screen Temporary Holiday Employees — via TLNT
• Do Employers Have To Warn You Before Firing You? — via Evil Skippy at Work
• US Whistleblower Laws: What Employers Need to Know — via i-Sight Investigation Software Blog

Wage & Hour

• NBC Inks $6.4 Million Deal to Stem Intern Uprising — via Law.com
• The Supreme Court’s Recent Decision on the Taxation of Severance Payments — via Suits by Suits
• Wage and Hour Cases to Watch at the Supreme Court: Part 1--Integrity Staffing — via Wage & Hour Insights
• Lee v. Dynamex Operations: Defining “Employee” in Misclassification Context — via Impact Litigation Journal
• NCAA Sued For Wage Violations — via Impact Litigation Journal

Labor Relations

• NLRB Sinks Confidentiality Clause of “Titanic” Director James Cameron — via Matt Austin Labor Law
• Union Campaign Heats Up At B’more Jimmy Johns — via Labor Relations Today
• The NLRB―the new elephant in the room — via HR Hero Line

EEOC files historic lawsuit challenging biometric testing by employers

It’s no secret that health insurance costs are out of control. To help combat this surge, many employers have turned to biometric testing for their employees. Biometric testing is part of corporate wellness programs where employees measure certain levels, such as blood pressure and cholesterol, for breaks on insurance premiums under the Affordable Care Act.

If the Affordable Care Act expressly permits this testing, then why is the EEOC claiming that Honeywell’s biometric testing program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act?

On Monday, the EEOC filed a lawsuit seeking a temporary restraining order declaring Honeywell’s biometric testing illegal. According to the EEOC’s lawsuit, ­Honeywell’s program creates up to $4,000 in penalties for employees unless they and their spouses take blood and medical tests that can identify smoking, diabetes, high blood pressure, obesity and other health problems. The Minneapolis Star Tribune quotes an EEOC attorney, who said, “Honeywell’s tests and threatened penalties go too far because they are not job-related and are not consistent with any business necessity…. They can only do that in ­situations where it’s ­voluntary for the employee to answer.”

For its part, Honeywell has called the lawsuit “frivolous”—

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace…. The incentives we provide are specifically sanctioned by two separate Federal statutes—HIPAA and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs…. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

Because the EEOC is seeking a TRO, I would expect this case to unfold quickly. I will keep everyone updated as this important story develops. Special thanks to Kate Bischoff for brining this to my attention.

Court of appeals decision highlights risk of (mis)classifying employees

I once handled a wage-and-hour investigation in which the employer, before retaining my services, hired an HR consultant to help classify its employees as exempt or non-exempt. The DOL, however, disagreed, and reclassified half of the company’s employees (with corresponding back pay awards for unpaid overtime for those employees moved from exempt to non-exempt).

FLSA exemptions are highly fact specific and highly subjective. One person’s exempt manager is another’s non-exempt clerk. Case in point? Little v. Belle Tire Distributors (6th Cir. 10/23/14) [pdf].

Little concerns a first assistant manager at a tire store. As a “manager,” the employer had the employee classified as exempt under both the executive and administrative exemptions. The employer’s written job description defined the first assistant manager position as requiring proficiency in “Professional Selling Skills,” “inventory control and pricing,” and “knowledge of location payroll control.” The job description further states that the employee have “necessary supervisory skills” and “managerial skills,” and be “fully knowledgeable” of “hiring and termination procedures.”

The court of appeals concluded that the employer’s determination that this employee was exempt was not dispositive, and sent the case back to the district court for trial on the issues of whether the employee qualified as exempt under either the executive or administrative exemption:

Belle Tire seeks to paint Little as influential in hiring and as actively leading employee training and other management tasks. Little, on the other hand, seeks to characterize himself as a salesman who provides clerical-type assistance to his store manager….

Though it is clear Little played some role in interviewing job candidates, preparing work schedules, and conducting training, questions remain concerning the exact nature of the work Little performed and the level of discretion that Little exercised. Such questions are suitable for a factfinder’s determination….

Although Little engages in office and non-manual tasks such as typing up the schedule and preparing purchase orders, Little testified that he spends eighty to ninety percent of his time engaged in sales duties. Time spent on a task is not the sole determinant of a primary duty, but the fact that Little spent the vast majority of his time on tasks he could not do concurrently with administrative tasks creates a genuine dispute as to whether his administrative responsibilities were his “primary duty.” Additionally, Little’s deposition—the most detailed account of his day-to-day activities—suggests that Little’s discretion was highly constrained.

The lesson here is not a happy one. No matter how reasonable or rational you think you are being in classifying employees, a court may second-guess you down the road. In close cases, err on the side of caution and classify as non-exempt. You will end up paying more overtime as you go, but will avoid the windfall (and related legal fees) if a court later re-classifies an employee or group or employees.

The times they are a changin’ for LGBT discrimination

Last week, the The U.S. Office of Special Counsel announced a landmark determination that the Department of the Army engaged in “frequent, pervasive and humiliating,” gender-identity discrimination against an Army software specialist who had transitioned from male to female.

According to a press release issued by the OSC, the employee

experienced a significant change in working conditions when the Army improperly restricted her restroom usage, repeatedly referred to her by her birth name and male pronouns, and excessively monitored her conversations with coworkers. In response, the Army agreed to provide training to correct and prevent future discrimination. The Army already had permitted Ms. Lusardi to use the restroom associated with her gender identity.

You can download the full decision here.

Congress has been slow to amend Title VII expressly to prohibit LGBT discrimination. Yet, courts, agencies, the White House and, now, the U.S. military, continue to fill in the gaps.

The time will come when it becomes per se illegal for all employers to discrimination against an employee’s sexual orientation or gender identity. Until that time, we will have to rely on courts’ creative solutions to fit these claims under Title VII’s general prohibitions against sexual stereotyping and sexual discrimination. Nevertheless, employers should not wait for Title VII to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII still permits discrimination against some.

Does social media hold the cure for your malingering, hooky playing employees?

In one of the better earlier episodes of The Office, the Assistant to the Regional Manager, Dwight Schrute, thinks that one of his co-workers is faking an illness to get out of work. So, he stakes out the employee’s house to investigate and uncover the truth.

 

According to a recent Harris Poll (h/t: Cleveland.com), figuring out if your employees are cheating on their sick leave is no longer as complicated as a stake out, and is only as far away as a few clicks of your mouse. According to the poll, nearly a quarter of employers have caught their employees lying on social media about being sick. Of those caught, a quarter were fired, while half were disciplined or reprimanded.

 

 

Three observations—

 

     1. If you think an employee is abusing sick leave or other time off, a little investigation on social media appears to go along way to ferreting out the truth. You no longer need to go the Dwight-Schrute route to determine if an employee is lying to you about the reason he or she isn’t at work. You should be adding social media to your quiver of investigatory tools. Otherwise, you could be missing a key (and easy) piece of the puzzle.

     2. The employment relationship is based on trust. Once that trust disintegrates, the relationship is almost certainly unsalvageable. I’m almost as shocked that only 25% of employers who have caught an employee lying about sick leave fired the offending employee, as I am that that another 25% appear to ignore the indiscretion completely. While I agree that we need better time-off policies in this country, it is still no excuse for lying.

     3. Then again, if an employee is so reckless (or senseless) as to tell an employer one thing, and then post the exact opposite on Facebook or Twitter an hour later, maybe I don’t want that employee working for me anyway. Just saying.

WIRTW #342 (the “family photo” edition)

Photo by Jenny Gildea Photography (who I cannot more highly recommend).

Here’s what I read this week:

Discrimination

• “How Can We Accommodate You?” — via Employment Discrimination Report
• Hearing Religious and Pregnancy Discrimination Cases Appeals to the Supreme Court — via The Emplawyerologist
• Employer Permitted to Use “After-Acquired” Evidence at Discrimination Trial — via Labor Employment Law Blog
• EEOC’s Current Enforcement Guidance on Pregnancy Discrimination — via The L•E•Jer
• I Quit! Constructive Discharge Serves as Substitute for Adverse Employment Action — via Texas Employment Law Update

Social Media & Workplace Technology

• Do you know your Klout Score? Social media and the hiring process — via Technology for HR
• Top 10 Technology Blunders for Employers — via Robin Shea’s Employment & Labor Insider
• A Perk of BYOD Policies at Work — via Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• The Ebola Scare: 10 Workplace Issues HR Should Be Ready For — via TLNT
• Ebola Alert: OSHA Releases Guidance on Employer and Employee Obligations — via Troutman Sanders HR Law Matters
• Fired Over Fears of Ebola: What you need to know. — via Texas Employment Law Blog
• 31% Of Sick Employees Think Boss Appreciates Their Presenteeism — via Workplace Diva
• Bully For You? Not When It Comes To Workplace Bullying — via Dan Schwartz’s Connecticut Employment Law Blog
• 12 Point Action Plan—Handling Violence in The Workplace — via HR Daily Advisor
• When the employer goes too far: The Jimmy John’s Non-Compete — via Smooth Transitions
• Unlimited Vacation Policies Suck! — via The Tim Sackett Project

Wage & Hour

• Late Payment of Wages Constitutes Non-Payment of Wages, Subjecting Employer to Liquidated Damages Under FLSA — via Overtime Law Blog
• You’d think emailing FMLA paperwork would be ok. Yeah, you’d think that. — via Eric Meyer’s Employer Handbook Blog
• Does FMLA Leave and Short-Term Disability Leave Run Concurrently? — via Wisconsin Employment & Labor Law Blog
• The Affordable Care Act—Countdown to Compliance for Employers, Week 10: What’s an Employer to Do (with Marketplace Notices)? — via Employment Matters Blog

Labor Relations

• ALJs Signal That D.R. Horton Is Alive And Well — via Labor Relations Today
• NLRB Modifies Standard Remedial Notice to Include QR Code and Link to Board’s Web Site — via Pennsylvania Labor and Employment Blog
• Employers are Often Surprised Who Can Vote in Union Elections — via Matt Austin Labor Law
• Ebola and Potential Labor Relations Issues — via Labor Relations Update

“He liked breasts” is never an appropriate response to a harassment complaint

Ruby Blackmon claimed that for a ten-month period, her second-level manager inappropriately stared at her breasts three to 10 times per day, would sexually rub her back, and would breath on her back and ear. Blackmon made ten different complaints to an HR manager, an administrative manager, and her immediate supervisor, all of which were ignored, except for one occasion when her immediate supervisor simply told her that the alleged harasser “liked breasts.” To make matters worse, on the heels of one complaint, her immediate supervisor gave her a negative evaluation. She filed suit after her termination.

Surprisingly, the district court granted this employer’s motion for summary judgment. Not surprisingly, the 6th Circuit reversed in Blackmon v. Eaton Corp. (10/16/14), concluding that genuine issues of material fact exists on the objectively hostile nature of the work environment and on whether there existed a causal nexus between Blackmon’s complaints and her termination.

We know that “He liked breasts” is an inappropriate response to a harassment complaint. What is an appropriate response? Here are 10 steps to follow if you receive a harassment complaint from an employee.

1. If you are not the person in your organization trained to address and investigation these situations, immediately refer the matter to the person who is. If no one is, hire a consultant or attorney who specializes in these issues to do the investigation for you. One word of caution. If you hire an attorney to do the investigation, do not make the mistake of assuming that the investigation will be privileged. It likely won’t be, meaning that the lawyer conducting the investigation might not be able to represent your company in any subsequent lawsuit.
2. Separate the complaining employee from the accused harasser. If that means you need to send someone home, with pay, while you complete the investigation, so be it. Better you eat a few days pay than risk the accused making matters worse by harassing again.
3. As soon as possible, interview the complaining employee (or, if someone else made the complaint, the victim), the accused, and any witnesses.
4. Don’t demean, belittle, or joke about the alleged victim. It will undermine the objectivity of your investigation.
5. Compile and review any pertinent documents. Don’t forget social media accounts, email, and text messages. They are your best friends in these cases.
6. Guard against retaliation, and ensure all employees that their participation will be free of retaliation.
7. Review all information and make a reasoned decision as to the credibility of those involved and what happened.
8. Take prompt and effective remedial action, and communicate your conclusions to the complaining employee.
9. Document the investigation.
10. Never, never, never retaliate.

“Honest belief” isn’t a defense to an FMLA claim, says federal court

The honest-belief rule is one of most effective shields available to employers in discrimination cases:

As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.

What happens in an FMLA claim, however? Can an employer use the honest-belief rule to fend off an employee’s claim that an employer interfered with FMLA rights? Yontz v. Dole Fresh Vegetables (S.D. Ohio 10/10/14) says “no.”

The case involved an employee whose newborn daughter had Down syndrome. He got stuck on vacation in Florida because of medical complications with the daughter, which delayed his post-vacation return-to-work date. The employer, based on pattern of similar prior non-medical issues with extended vacations, believed he was malingering and fired him.

The employer claimed as its defense to Yontz’s FMLA claim that it had an “honest belief” that Yontz “misused his pre-approved, intermittent FMLA leave.” The court disagreed, and rejected the application of the honest-belief defense in FMLA interference cases:

Dole may not use an honest mistaken belief that Yontz misused FMLA leave as a legitimate non-discriminatory reason for his termination. That Yontz received attendance points for using what may have been legitimate intermittent FMLA leave is the problem, not a legitimate, non-discriminatory excuse for the problem. The Sixth Circuit has not decided whether the rule applies to FMLA interference claims. To so rule would be to reward and encourage ignorance of a law our democratic process has seen fit to enshrine in law.

Per this case, the FMLA requires more than an honest belief to deny an employee FMLA leave. Thankfully, the FMLA provides employers myriad tools to check and double-check the legitimacy of an employee’s claim for leave. Employers have medical certifications, re-certifications, checks for authenticity and clarification, and second and third opinions. As this case shows, an “honest belief” will not save an employer who denies an employee’s FMLA request without first exhausting all available avenues of communication and clarification with the employee.

Cop caught sleeping on the job awarded $1M in ADA lawsuit — what could this employer have done differently?

A federal jury awarded nearly $1 million to a former police officer, allegedly fired after sleeping on duty.

According to the McPherson Sentinel,  alleged the city violated his civil rights, the Americans with Disabilities Act, the Family Medical Leave Act, and the Kansas Wage Payment Act when he was fired for sleeping on the job. Michaels has sleep apnea, and claims that the disability resulted in his dismissal, which was a violation of his rights. It appears the courts agree.

Matthew Michaels had worked as a police office in McPherson, Kansas, for nine years. From 2006 to 2007, Michaels had three on-duty at-fault car accidents. Three years late, he was suspended after being repeatedly caught sleeping in his patrol car. Thereafter, Michaels was diagnosed with obstructive sleep apnea, for which he received medical treatment and had no further incidents of falling asleep on duty.

Micheals performance problems, however, did not end. Two years later, the city fired Michaels for a variety of performance issues, which included insubordination and arguing with superiors.

If Michaels’ sleep issues ended two years prior to his termination, how did he hit for nearly $1 million in his ADA lawsuit? Because his supervisor listed his prior incidents of sleeping on duty as one of the reasons for his termination.

Unless an employee is absolutely unable to perform the essential functions of the job with (or without) reasonable accommodations, a medical diagnosis should never come into play as a reason for termination. In this case, the medical issues stopped impacting Michaels’ job performance once he began receiving treatment. Thus, there was absolutely no reason to mention the two-year-old (and under control) sleep issues in support of the termination decision. This employer had other good reasons to fire this employee. It dropped the ball, however, by adding his medically-caused, stale, performance problems into the termination equation.

What if…? Internet use as a disability

Last year I reported on the possibility that Internet use could become an ADA-protected disability. Now, we have one of the first documented cases of this phenomenon. From CNN:

A man who checked in to the Navy’s Substance Abuse and Recovery Program for alcoholism treatment was also treated for a Google Glass addiction, according to a new study.

San Diego doctors say the 31-year-old man “exhibited significant frustration and irritability related to not being able to use his Google Glass.” He has a history of substance abuse, depressive disorder, anxiety disorder and obsessive-compulsive disorder, they say.

The man was using his Google Glass for up to 18 hours a day in the two months leading up to his admission in September 2013, according to the study…. “He reported that if he had been prevented from wearing the device while at work, he would become extremely irritable and argumentative,” the doctors write.

The Guardian adds that “the patient repeatedly tapped his right temple with his index finger, … an involuntary mimic of the motion regularly used to switch on the heads-up display on his Google Glass.”

This supposed addiction is not limited to wearables like Google Glass. For example, CBS News recently reported on the physiological changes to the brain that could result from too much Facebook use.

What results when we toss this story into the employment-law blender?

• Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, you may have to engage them in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area?

• Do you have a policy that prohibits non-work-related Internet use? If so, it might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

These are difficult issues, exacerbated by the novelty of the concept. Nevertheless, the more the Internet becomes entrenched in our lives (if that possible), the greater the likelihood that employees will begin embracing ideas such as Internet addiction as a disability and the need for employers to consider and provide reasonable accommodations. It’s a brave new world, we just happen to work in it.

WIRTW #341 (the “impeachment by blog” edition)

I’ve been blogging for more than seven years, and I’ve never had opposing counsel try to impeach one of my clients with something I’ve written on this site. Overlawyered brings us a story from Abnormal Use of an attorney-blogger whose opposing counsel did attempt to impeach via the blogger’s posts. It did not end well for the impeacher. This is absurd and offensive, and I would not stand for it in a hearing of deposition of mine.

Lawyer readers, have you ever had this happen to you? And, if so, how did you handle it? Let me know in the comments below.

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The Manpower Employment Blawg presents this month’s Employment Law Blog Carnival: Halloween Edition. Please click over to read the best of the employment law blogosphere from the past month (including one from yours truly).

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

Discrimination

• EEOC Sues FedEx for Discriminating Against Deaf Employees — via In House
• Getting fired for bringing a gun to work probably isn't discrimination — via Eric Meyer’s The Employer Handbook Blog
• Good documentation pays off! Not once but TWO times — via Mike Haberman’s Omega HR Solutions
• Ending Gender Discrimination Requires More than a Training Program — via Harvard Business Review
• Black Supervisor Remarks He Has “Too Many Black” Employees; Employer Loses Motion For Summary Judgment — via The Employment Brief
• Is It Harassment To Tell An Employee To “Pull Her Own Weight”? — via Evil Skippy at Work
• Do “Engaged” Employees File Fewer Charges? — via Employment Discrimination Report

Social Media & Workplace Technology

• Four Things To Do Now BEFORE An Employee Data Breach — via Dan Schwartz’s Connecticut Employment Law Blog
• Banning Employers from Asking for Social Media Passwords is Stupid — via employeescreenIQ Blog
• Should Your BYOD Policy Ban Third-Party Keyboards? — via Blogging4Jobs
• LinkedIn Sued for Furnishing Reference Reports on Users — via Law.com
• Using Social Media as a Screening Tool for New Hires — via Attorney at Work

HR & Employee Relations

• Ebola and Employer Liability Issues — via Employment Law Lookout
• Staying Calm and Prepared for Potential Workplace Ebola Issues — via TLNT
• EBOLA and Employer Liability Issues — via Environmental & Safety Law Update
• Apple and Facebook are now paying for women employees to freeze their eggs — via The Verge
• Eggs in the workplace — via Robin Shea’s Employment & Labor Insider
• Should My Business Use an Arbitration Agreement for Employment Disputes? — via Michigan Employment Law Advisor
• 5 Ways to Make Your Employees Love You — via Evil HR Lady, Suzanne Lucas
• Lessons from the Ryder Cup: don’t blast the boss in front of a world-wide audience — via Employment Law Worldview

Wage & Hour

• DOL Makes It Official: New FLSA Regulations Delayed Until 2015 — via Wage & Hour Insights
• Wage and Hour Division Releases Enforcement Statistics — via Wyatt Employment Law Report
• An Explainer: NFL Cheerleader Lawsuits — via On Labor

Labor Relations

• NLRB Toasts Chicago Bakery On English-Spanish Translation — via The Labor Dish
• NLRB Wins Reversal of Section 10(j) Ruling; Trial Court Denied Bargaining Order Remedy Bloomberg BNA

When #Ebola impacts your workplace

If you employ people at Cleveland Hopkins Airport, Frontier Airlines in Cleveland, or Kent State University, congratulations, you’re among the first non-healthcare employers to have a potential Ebola exposure. Now, what do you do?

First things first, don’t panic. Instead, take a deep breath … and think.

Employers must consider what they should do in the event that an employee is potentially exposed to the virus, or otherwise has  been in a high risk area. The definition of “high risk area” is very much in flux. Two week ago, it was Western Africa. Last week, the definition expanded to a Dallas hospital. Now, it’s Cleveland’s airport, a local university, and a couple of our local hospitals.

So, what do you do?

1. Have an action plan for disease prevention. This plan could include action items such as travel restriction to high risk areas, and providing information and training to employees, along with protective gear or hand sanitizer .

2. Have a response plan for specific employees who are suspected to, or actually do, pose a risk to others because of a viral exposure. Because of the ADA, employers have certain limits on their ability to ask medically-related questions, even when dealing with something as critical as Ebola.

• Questions about travel are not disability-related. Therefore, the ADA places no limits on an employer’s ability to inquire about an employee’s travel to gauge potential exposure and risks.

• Questions about diseases or exposure thereto are, however, disability-related. The ADA  does permit an employer to request medical information when the employer has  a reasonable belief that an employee will pose a “direct threat” because of  a medical condition. A potential exposure to Ebola could constitute a direct threat, though employers must be careful to avoid unlawful stereotypes or generalizations, as opposed to acting on actual, objective evidence.

• The CDC has published monitoring guidelines for individuals who have traveled to a country experiencing an Ebola outbreak, or otherwise have been potentially exposed to the disease. These guidelines depend on exposure levels and visible symptoms.

  • Individuals who exhibit symptoms consistent with Ebola, or who develop Ebola-like symptoms at work, should seek medical evaluation, regardless of any known exposure, and should limit activities and contact with others until medically cleared.

  • Asymptomatic individuals who have had no known exposure should self-monitor for symptoms for a 21-day period (the known incubation period for the disease). During that time the CDC recommends that an individual “may continue normal activities, including work.” 

  • Asymptomatic individuals who report possible contact with an infected individual should stay home until medically cleared to return to work. While an employer is not required to pay the employee for this time off, under the circumstances it would be an appropriate gesture. By way of example, both the Cleveland Clinic and MetroHealth are paying the 13 nurses who flew from Dallas for their quarantined time off.

There is a big difference between vigilance and panic. The key for employers in dealing with Ebola is to understand the former while not falling susceptible to the latter.

Two all-beef patties, special sauce … and a noncompete?

While the law of noncompete agreements is state-specific, generally you need three things to enforce such an agreement: reasonableness as to the duration of the agreement, reasonableness as to its geographical scope, and reasonableness as to the interest the employer is attempting to protect. So, what’s so special about a fast-food worker that merits the protection of a non-competition agreement? That’s the question an Illinois federal court is going to answer in Brunner v. Jimmy John’s Enterprises, Inc.

According to The Huffington Post, a Jimmy John’s franchise in Niles, Illinois, requires all of its employees to sign a Confidentiality and Non-Competition Agreement as a condition of employment. The agreement prohibits the employee, for two years following employment at Jimmy John’s, from working at any business within three miles of any Jimmy John’s that derives at least 10% of its revenue from sandwiches

Employee covenants and agrees that, during his or her employment with the Employer and for a period of two (2) years after … he or she will not have any direct or indirect interest in or perform services for … any business which derives more than ten percent (10%) of its revenue from selling submarine, hero-type, deli-style, pita and/or wrapped or rolled sandwiches and which is located with three (3) miles of either [the Jimmy John’s location in question] or any such other Jimmy John’s Sandwich Shop.

It’s one thing to bind your managers and other high-level employees to a noncompetition agreement. It’s another to require the same of your low-level sandwich makers and cash-register operators. The lower down the food chain you move, the harder it becomes to enforce these agreements. If these employees received specialized training, or if the employer was protecting customer goodwill, the employer would have a better chance in enforcement. But we’re talking about sandwiches. What’s the legitimate business interest this employer is trying to protect?

Employers, use some discretion and common sense. Narrowly tailor your noncompete agreements to the specific interests you are trying to protect. And, if you don’t have such an interest, forego the agreement altogether for that employee or group of employees. Otherwise, you will spend gaggles of money attempting to enforce an unenforceable agreement.

Do personality tests pass the ADA-compliance test?

The ABA Journal (hat tip: Overlawyered) is reporting that the EEOC is investigating whether several well-known companies are violating the ADA by using pre-employment personality tests to screen applicants.

I cautioned employers about this issue three years ago. This is what I said.

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Despite the apparent prevalence of these types of tests, there is very little guidance available on their legality. Karraker v. Rent-A-Center (7th Cir. 2005) is the seminal case. As Karraker points out, the legality of a personality test by an employer hinges on whether it qualifies as a “medical examination” protected under the ADA. 

The Karraker court concluded that the ADA covered the MMPI personality test as a protected medical exam. In reaching its decision, the court drew a key distinction between psychological tests that are designed to identify a mental disorder or impairment (medical examinations), and psychological tests that measure personality traits such as honesty, preferences, and habits (not medical examinations). Because the MMPI revealed, in part, potential medical diagnoses such as paranoid personality disorder, the court concluded that it was a protected medical examination. Other personality tests may not dictate the same result, depending on the types of results provided.

Merely because something is a “medical examination” does not mean its use is illegal under the ADA. It merely means that the ADA places certain limits on its use:

	Personality Test Is A Medical Exam	Personality Test Is Not A Medical Exam
Prior to an offer of employment:	Personality tests are prohibited.	No limits on the use of personality tests.
After an applicant is given a conditional job offer, but before s/he starts work:	Personality tests are permitted, regardless of whether they are related to the job, as long as the employer does so for all entering employees in the same job category.	No limits on the use of personality tests.
After employment begins:	Personality tests are permitted only if they are job-related and consistent with business necessity.	No limits on the use of personality tests.

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What does all this mean? The use of personality tests raises complex legal and business issues, even more so now that this issue is on the EEOC’s radar. If you are considering using personality tests to screen applicants or current employees, tread carefully and not without the input of your employment counsel.

“Faithfully” considering performance obligations in employment contracts

Ken Adams, writing at his always insightful blog, Adams on Contract Drafting, comments on the use of terms such as “faithfully” to describe an employee’s performance obligations in an employment agreement. Ken concludes that terms such as faithfully, diligently, competently, industriously, etc., are too wishy-washy to be of any practical use. Instead, he suggests that you “be as specific as possible regarding an employee’s duties”—

For lack of anything more tangible, drafters throw in faithfully and the like. But I don’t think it does any good. In a contract you might well say that the employee is obligated to perform duties specified by the CEO (or, in the case of the CEO, by the board of directors), is obligated to work full-time, and can be fired for specific transgressions. Beyond that, you face the question of whether the employee will do a good job and be successful. Unless you come up with quantifiable targets, imposing on an employee an obligation to be successful wouldn’t work. So drafters make impotent gestures in that direction—that’s where faithfully comes in.

Even though I agree with Ken, terms like “faithfully” do serve a legal significance in employment agreements. They intend to impose a heighted (or fiduciary) duty of performance upon the contracting employee. Unless a contract provides otherwise, an employee might now not owe a fiduciary duty to his or her employer. In many circumstances, employers want to ensure that they impose this obligation on managers and other higher-level employees. Thus, they use terms like “faithfully” to legally bind the employee to a heightened performance obligation.

The, problem, however, is as Ken points out. Performance obligations such as “faithfully” are too vague and subjective to be of any practical use. Sure, a court might use that word to impose a fiduciary duty, but a court could just as easily strike it for vagueness. Instead of using these indefinite terms of art that do not provide the employer or the employee any practical on-the-job guidance, employers should tie the obligations to specific performance standards. Consider the following example:

Employee shall devote all of his/her working time, attention, knowledge, and skills to Employer’s business interests and shall do so in good faith, with his/her best efforts, and to the reasonable satisfaction of the Employer.

Employee agrees to refrain from any interest, of any kind whatsoever, in any business competitive to Employer’s business. The Employee further acknowledges s/he will not engage in any form of activity that produces a “conflict of interest” with those of the Employer unless agreed to in advance and in writing. 

The Employee understands that failure to reach benchmarks or performance terms provided by the Employer may result in reassignment, demotion, or termination. Employee further understands that reaching these benchmarks or performance terms constitutes a reasonable and substantial condition of employment, but does not in any way guarantee or promise continued employment.

As for “faithfully,” I recommend we stick to cheesy soft-rock ballads.

WIRTW #340 (the “punting” edition)

The federal court that recently announced its intent to dismiss the EEOC v. CVS severance agreement case has finally issued its written opinion … and the court did not reach the key issue in the case. Instead, the court dismissed the EEOC’s lawsuit based solely on its failure to conciliate with CVS prior to filing suit. So, it’s back to the drawing board for employers hoping for some concrete guidance on the legality of myriad garden-variety severance agreement provisions, which may come from a similar lawsuit the EEOC is pursuing in Colorado. You can more on the background of this story here and here.

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

Discrimination

• An employer should never ask about disability or religion. Except when it should. —Robin Shea’s Employment & Labor Insider
• You’re More Biased Than You Think — via Fast Company
• Weight Discrimination Is Surprisingly Rare, Study Finds — via Discovery
• Age Discrimination In Finland – Suffered Most By Those … Under 30? — via Employment Discrimination Report
• EEOC and wellness programs: Looking for “just right.” — via Michigan Employment Law Connection
• Remember that a duty to accommodate may exist after childbirth — via Eric Meyer’s The Employer Handbook Blog
• The EEOC’s Litigation Scorecard For FY2014 – What Does It Mean For Employers — via EEOC Year-End Countdown
• Should ADA protections apply to pedophiles? — via ABA Journal Daily News

Social Media & Workplace Technology

• Employees Can Break Data Privacy Rules Too — via Dan Schwartz’s Connecticut Employment Law Blog
• Even If You Don't Use Social Networks, They Still Know Stuff About You — via Lifehacker
• Union access to employer’s e-mail systems: Are times a-changin’? — via Technology for HR
• Workplace Trends: The Office Telemedicine Kiosk — via Workplace Diva

HR & Employee Relations

• Is your workforce knowledgeable about Ebola … and should it be? — via Employment Law Matters
• When “The End” Is Not “The End”: Asserting Trade Secret Claims After The Execution of a Mutual Release — via Trading Secrets
• Breaking Bad: Disciplining employees for off-duty conduct — via EntertainHR
• Further Thoughts on the “CEO Dads”: Schireson and El-Erian — via Fathers, Work and Family
• Breast Cancer Awareness Month and HR — via Fistful of Talent
• What To Do When You Don't Have a Policy in Place — via ERC Insights Blog
• Bullying in the Workplace: New Laws or Stronger Employer Policies? — via Smart HR Manager

Wage & Hour

• The Secret Life of Equity Compensation at IPO — via Compensation Café
• Ignoring the FLSA: Another case of Stupid HR — via Mike Haberman’s Omega HR Solutions

Labor Relations

• NLRB General Counsel and Company Seek Detailed Financial Accounting in Beck Disclosure, NLRB Members Say No — via Matt Austin Labor Law
• NLRB Finds FedEx Drivers to be Employees–Not Independent Contractors — via Wyatt Employment Law Report
• NLRB Refines Its Test for Independent Contractor Status — via Labor Relations Update
• Cursing, fighting, and screaming could be protected under the NLRA — via HR Hero Line

Are post-work security checks compensable? #SCOTUS and Integrity Staffing Solutions v. Busk

Yesterday, the Supreme Court heard oral argument in its first employment law case of this term, Integrity Staffing Solutions v. Busk.

To wage-and-hour geeks (like me), this case presents an interesting issue under the Fair Labor Standards Act: whether the FLSA entitles hourly employees to be paid for post-shift time spent undergoing mandatory security screenings. The case was brought by two employees of a warehousing company that was having employee theft problems. To combat the issue, the company implemented mandatory (and unpaid) post-shift security checks, which included passing through metal detectors, which kept employees at the plant for up to 30 extra minutes.

FLSA, as amended by the Portal-to-Portal Act, generally precludes compensation for “preliminary” (pre-shift) and “postliminary” (post-shift) activities, unless the activities are “integral and indispensable” to an employee’s principal activities. To be “integral and indispensable,” an activity must be (1) “necessary to the principal work performed” and (2) “done for the benefit of the employer.”

In this case, the 9th Circuit held that the security screenings were “integral and indispensible” because the company required them “to prevent employee theft, a concern that stems from the nature of the employees’ work.” In so ruling, the court distinguished cases involving non-compensable pre- and post-shift screenings at airports and nuclear power plants, which did not benefit the employer because they were otherwise mandate by federal law.

In its brief, the employer argued that the screenings take place away from the work area after the workday, and did not affect their work activity of pulling product off shelves. The employer also argued that the unpaid screenings are no different than unpaid time walking from their cars, through the parking lot, and into the warehouse. Contrarily, the employees argued that the employer’s required security screenings, for which the employees had no choice, triggered a legal duty to pay.

During oral argument (transcript) the conservative wing of the Court seemed to advocate for a narrow interpretation of “principal.”

Chief Justice Roberts: But no one’s principal activity is going through security screening.  The employer doesn’t hire somebody, I need somebody to go through employee screening.  He hires them to do something else…. You’re saying everything that is related somehow to the job is principal. I would have thought principal has to do with things that are more significantly related.

Justice Alito: You wouldn’t pay anybody just to come in and go through security.

Meanwhile, the more employee-friendly Justices attempted to argue that because “inventory control” is “important” to the business, it is integral and indispensable:

I mean, what makes it Amazon? It’s a system of inventory control that betters everybody else in the business. And what’s really important to Amazon is that it knows where every toothbrush in the warehouse is. And that’s just as integral to what Amazon does and to what it requires its employees to do….

In handicapping this case, you have to keep in mind that earlier this year, this same Court, in Sandifer v. U.S. Steel, decided that the time spent putting on and taking off certain protective gear is not compensable. While Sandifer is a different case, decided under a collective bargaining agreement, I would be surprised, especially given the tenor of oral argument, if the employees walk away from Busk with a win. This case will hinge on whether the security screenings are key to the nature of the employment. I, along with what I perceive as a majority of the Court, believe that the employer has the better of this agreement. We’ll find out for sure early next year when the Court issues its opinion.

Sexual discrimination vs. sexual favoritism

The Employment Matters blog recently posted about a 10th Circuit case that upheld the dismissal of a sex discrimination case that alleged sexual favoritism as its lynchpin.

What is the difference between sexual discrimination and sexual favoritism? The former is illegal, while the latter isn’t.

In the words of one federal appellate court:

Title VII does not, however, prevent employers from favoring employees because of personal relationships. Whether the employer grants employment perks to an employee because she is a protegé, an old friend, a close relative or a love interest, that special treatment is permissible as long as it is not based on an impermissible classification.

Or, in the words of another federal court:

As the numerous cases finding that preferential treatment for a paramour does not constitute gender discrimination make clear, nothing about the favoritism … had to do with the protected characteristic of gender. Instead, the alleged favoritism was based only upon a special relationship between certain staff members and managers. All other staff members, whether male … or female…, were equally negatively affected by the purported favoritism.

This is not to say that playing sexual favorites in the office is a good idea. It’s far from it. For starters, is morale crushing for employees to believe (correctly or incorrectly) that they are being treated differently simply because they are not sleeping with or otherwise romantically attached to the boss. It also leads to office gossip and potential conflicts of interest.

Also, lots can go wrong when an office romance goes south. For example, what if, after the relationship ends, one says to the other, “I can do something to your job!”? Or, worse, the threats could be followed by extortion or blackmail.

I will not tell you that employers should forbid their employees from dating. The heart will go where it wants to go. If your employees want to date (or do more), they will, with or without a policy forbidding it. Instead, use workplace romances as an opportunity to educate your employees about your anti-harassment policies and programs.

• Train your employees about what is, and is not, appropriate workplace conduct between the sexes.
• Remind employees that the company expects professional behavior at all times, regardless of the personal relationships (past or present) between employees.
• Advise employees that unprofessional behavior is not tolerated, and will lead to discipline, up to, and including, termination,, which includes such behavior during and after romantic or sexual relationships.

Focusing on conduct (and misconduct) instead of the relationships itself provides your employees the tools to avoid the potential problems that can arise from these relationships, which, in turn, will help any organization avoid the litigation expenses these problems can cause. And we can all agree to love that idea.

Don’t fire employees on the heels of a cancer diagnosis

You can’t escape the fact that October is Breast Cancer Awareness Month. Pink is everywhere. Women are wearing pink everything. Buildings are ablaze in pink lights. And NFL games are awash in pink arm sleeves, handkerchiefs, and end-zone paint.

So, it’s appropriate that I bring you the story of a Chicagoland woman allegedly forced off her employer’s health insurance after her breast-cancer diagnosis, and later fired for complaining about it.

 

From the Chicago Tribune:

When Harrington [the employee] learned that she had an abnormal mammogram, the suit said, Quinlan [the employer] began pressuring her to get off of the company’s group health insurance policy. Quinlan forced her off the policy the next month, according to the suit, when she was diagnosed with breast cancer and needed treatment.

Quinlan became angry with her for complaining about not being on the insurance policy, according to the suit, saying that insurance costs would be much higher with her on the policy. Quinlan then fired Harrington, the suit claims.

There is little doubt that the ADA protects cancer as a disability. While a lawsuit is nothing more than a statement of unproven facts, if there is any truth to the allegations in this lawsuit, this employer is going to have big problems.

For want of a well-placed pickle: will your termination pass the red-face test?

Have you ever refused to eat at fast food sandwich because the pickles were off? Not “off” as in omitted, or “off” as in taste, but “off” as in alignment, or, these pickles are arranged in a triangle and not in a square on my patty?

If you answered “yes”to this question, you’re lying, because no one in the history of the world has ever said or thought that their McPickles are mis-aligned.

Ask yourself, then, why an employer would try to justify an employee’s discipline on the grounds of “poor pickle placement.”

Last week I discussed EYM King of Michigan, in which an NLRB Administrative Law Judge invalided a fast-food restaurant’s no-loitering policy. In that same case, the same ALJ also considered the suspension and termination of an employee who worked part-time for a labor union and had previously struck other local fast food establishments over raising the minimum wage. On September 20, 2013, that employee, Claudette Wilson, was sent home early without pay for “not placing pickles on sandwiches in a perfect square as she was supposed to.” The day prior, she had met with a co-worker in the parking lot to fill out a union questionnaire on wages, for which she received a written warning for violating the no-loitering policy.

The ALJ concluded that the employer’s suspension of Wilson discriminated against her for engaging in protected union activity:

Wilson admits that she did not put pickles on her sandwiches in perfect squares as she was supposed to, due to her anger over the written warning she received.  However, given Respondent’s animus towards her protected activity, as evidence by the illegal warning given toher the same day, I find that the General Counsel has made a prima facie that her discipline (being sent home early) was related to Wilson engaging in protected activity in Respondent’s parking lot the day prior.

Folks, no one in their right mind is going to believe that a fast-food worker suffered discipline for poor pickle placement. Your personnel decisions must pass the red-face test. Can you consider the decision without repelling in embarrassment? If not, it’s best to pass on the decision and live to fight another day. If you react poorly to your own decision, imagine how a judge or jury will react.

WIRTW #339 (the “iWork” edition)

What’s it like to work for the richest and most admired company in the world? Boy Genius Report writes that being an Apple employee might not be on par with being an Apple fan, in Ex-Apple managers spill dirt on what it’s like to work there, say Apple execs “are nuts.”

Do you love working long hours, spending a lot of time away from your family, and dealing with insanely demanding bosses? If so then there’s a little company in Cupertino that just might be the perfect place for you to set up shop….

“It’s a stressful job, there’s a lot of responsibility, and you always have to be on,” said Melton, who also described Apple execs as “nuts.” “I mean, it’s not that it’s not fun, it’s not that it’s not fulfilling, it’s not that you don’t get to work around all these brilliant people. The bad side effect is they’re all, like, workaholic, psychotic brilliant people.”

BGR has more, including a link to the full interview with two former Apple managers.

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

Discrimination

• EEOC files first transgender suits against private employers — via Robin Shea’s Employment & Labor Insider
• Three more courtroom defeats for EEOC — via Walter Olson’s Overlawyered
• Is Your Company’s Dress Code Discriminatory? — via In House
• A Monday Night Football lesson on workplace religious accommodations — via Eric Meyer’s The Employer Handbook Blog
• EEOC: Trolling for plaintiffs — via EmployerLINC
• Don’t Fire An Employee When She Tells You She is Pregnant — via Employment Discrimination Report
• Employers’ Hands are Tied: New Washington D.C. Law Goes Beyond Ban the Box — via employeescreenIQ Blog

Social Media & Workplace Technology

• Are Websites Places of Public Accommodation? — via HR Defense Blog
• Keeping Secrets on Social Media: Part I and Part II — via Molly DiBianca’s Delaware Employment Law Blog
• Two Courts Permit Defendants To Be Served on Facebook — via Above the Law
• Ello: The Hot New Anti-Facebook Social Network — via Technologist
• Ello vs. Facebook — via The Not-So Private Parts
• What Messaging Tool Should You Pick to Tell Off Your Boss? — via The Tim Sackett Project
• After Torching Laptop, CEO Feels the Heat of Sanctions — via Suits by Suits

HR & Employee Relations

• Your Former Employees Want a Reference, Here Is What Your Attorney Thinks About That — via Suzanne Lucas, writing at Inc.com
• It May Not Get You Arrested, but it May Not Keep You Employed — via WSJ Law Blog
• How to Deal with Bullies at Work — via Harvard Business Review
• Happy New Year! OSHA’s Revised Recordkeeping Rule — Major Implications on Employers — via Employment Law Lookout
• “No Hire” Agreements: Unlawful Collusion or Necessary Self-Protection? — via The Labor Dish
• Do Supervisors Have To Save Employees During An Emergency? — via Evil Skippy at Work
• Your Employer Wants To Indoctrinate You With Their Politics — via Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• A Reminder About the Dangers of Employee Misclassification — via Employment & the Law
• How To Decertify an FLSA Collective Action — via Minnesota Employer
• Has Wal-Mart Helped to Expand the Scope of Joint Employment? — via The Emplawyerologist
• Julia Roberts Would Not Be Impressed: Mystic Pizza Cited for Wage/Hour Violations — via Dan Schwartz’s Connecticut Employment Law Blog
• Giving an employee a piece of the action may violate the FLSA — via Mike Haberman’s Omega HR Solutions
• Off-the-Clock Security Checks — via Wage & Hour - Development & Highlights
• Leave Laws, FMLA, and the Workplace — via Blogging4Jobs

Labor Relations

• Remember that Job You Had 11 Years Ago? Well Good News! — via Phil Miles’s Lawffice Space
• NLRB Postpones Creation Of Employee Right To Use Employer E-Mail For Union Activity — via Labor Relations Today
• Steelworkers Playbook on How They Plan to Reform Labor Law — via Matt Austin Labor Law
• Labor Board Gets an F for its Treatment of A-List — via EntertainHR
• The Death of Courtesy and Civility Under the National Labor Relations Act — via Socially Aware Blog

Image by Rob Janoff (Apple) [Public domain], via Wikimedia Commons.

BREAKING NEWS: U.S. Supreme Court to take up issue of workplace religious accommodation

It’s day one for the U.S. Supreme Court’s 2014-2015 term, and the Court has already made big employment law news.

The Court has accepted the the appeal filed by the EEOC in EEOC v. Abercrombie & Fitch Stores, Inc. 

This case, which concerned whether Title VII’s religious accommodation provision required the retailer to grant an exception to its “Look Policy” for a hijab-wearing job applicant, has an interesting procedural history. The EEOC won summary judgment at the trial court. The 10th Circuit then reversed, and issued summary judgment for the employer, concluding:

The EEOC did not satisfy the second element of its prima facie case, as there is no genuine dispute of material fact that Ms. Elauf never informed Abercrombie prior to its hiring decision that her practice of wearing her hijab stemmed from her religious beliefs and that she needed an accommodation for this (inflexible) practice.

Let’s hope for some concrete guidance from the Court on this timely and perplexing issue.

I’ll have much more to say about this case next year after the court holds oral argument. In the meantime, for more on “look policies” and religious accommodations, see my earlier thoughts:

• A Muslim walks into a store… Corporate “Look Policies” and religious discrimination
• Accommodating religions starts at home (a love story)
• Do you know? Discrimination against Muslims
• Religious accommodation versus public image
• Grooming and appearance policies continue to make headlines as fulcrum of religious discrimination lawsuits
• WIRTW #237 (the “don’t judge a book by its cover” edition)
• Halting the tide of religious-discrimination claims

Add “no loitering” to the list of potentially unlawful work rules, per the #NLRB

It’s no secret that the NLRB is waging a war against facially neutral employment policies. You can add “no loitering” rules to its list of victims.

In EYM King of Michigan, an NLRB administrative law judge considered the following policy, implemented by a Burger King franchise:

Loitering and soliciting either inside or outside on Company premises is strictly prohibited. You should arrive some minutes before your entry hour and leave the as soon as you finish your shift. Employees are not authorized to remain in the restaurant after work. If you are not working or eating in a store, your conduct may be construed as loitering. If you are off-duty and return to the store to speak with employees who are working, your conduct may be considered loitering. Former employees who return to the store to speak with employees who are working are loitering. This policy is designed to prevent the disruption of company business due to unnecessary interaction with non-working employees or non-employees. Employees who violate this policy may be subject to discipline, up to and including termination.

The ALJ concluded that this policy unlawfully restricted employees’ rights to engage in protected concerted activity because it impeded employees’ ability to gather, and, by implication, discuss wages, hours, and other terms and conditions of employment. The judge also was not persuaded by the employer’s professed “safety” concerns for its employees:

Respondent’s justification for its rules is that its restaurants are located in high-crime areas.  To give credence to such an explanation would effectively deprive millions of the lowest-paid workers in the United States of the ability to assert their Section 7 rights….

Respondent’s professed concerns regarding safety in justifying its loitering and solicitation rules are manifestly specious. The company has made no showing as to how this rule enhances safety. In this regard, it does not prohibit customers from eating food purchased at its restaurants while sitting in their cars in the restaurant parking lot. Moreover, people are just as likely to be the victims of violent crime at Respondent’s drive thru windows as anywhere else on the exterior of the restaurant.

No employment policy that could potentially impact employees’ ability to discuss work is safe from the NLRB’s scrutiny. If you have not had a labor and employment lawyer review your handbook and other policies, you are doing your business a severe disservice, and taking a huge risk, in this hyperactive regulatory environment.

EEOC wastes its scarce resources by filing lawsuits without claimants

The National Law Journal reports that Texas Roadhouse has sued the EEOC, demanding background on the agency’s prior age discrimination suit against it. The restaurant chain is suing under the Freedom of Information Act, seeking the genesis of the lawsuit, which it claims the EEOC filed without first receiving a charge of discrimination.

According the the NLJ, “By law, the EEOC doesn’t have to wait for someone to come forward with a discrimination complaint. It can act on its own by filing a commissioner’s charge, or initiating a directed investigation….  In part, the agency relies on statistical evidence culled from reports that all employers with 100 or more workers (and federal contractors with 50 or more) must file annually with the agency, showing the sex and race or ethnicity of workers by job category.”

According to the FOIA complaint, “The very agency that has attempted to enforce the law against discrimination—by launching an unprovoked attack against Texas Roadhouse, then waging a media campaign declaring Texas Roadhouse guilty before a single day, indeed, a single minute, in court—is defying the law applicable to it. This cannot stand in a society governed by fundamental principles of fairness, due process, and the rule of law.”

Rhetoric aside, I question whether scouring EEO-1s for employers who appear, based on demographics alone, to discriminate, is the best use of the EEOC’s limited resources. The EEOC can do a lot of good to further civil rights opinion this country (see EEOC makes history by filing its first ever transgender-discrimination lawsuits). Cases such as this one, however, cause me to question the EEOC’s motives, and cause employers to lose confidence in what should be a worthy agency. 

When the same actor hires and fires, discrimination is unlikely

It seems to be common sense that if the decision maker accused of a discriminatory adverse action is also the individual responsible for earlier hiring that same person, it is unlikely that a discriminatory reason motivated the latter decision. After all, if I discriminate against people of a certain race (or gender, age, religion, etc.), why would I hire them in the first place? Wouldn’t I just not hire them to keep them out of my organization?

Courts refer to this as the “same-actor inference” — inferring a lack of discrimination from the fact that the same individual both hired and fired the employee.

A recent decision from the Southern District of Ohio applied this inference in a case in which a fast-food manager claimed discrimination after the “same actor” hired him, and, shortly thereafter, fired him:

Even Plaintiff’s theory of this case does not suggest race discrimination: it defies logic that a Caucasian manager would hire him in an attempt to replace a minority manager and then “turn the tables” four months later and fire him for being Caucasian.

This is not to say that the same actor can never discriminate. After all, Chevy Chase hired Richard Pryor after lobbing the worst kind of racial bombs across the interview desk. Indeed, in the 6th Circuit, this “same actor” inference is insufficient, in and of itself, to entitle an employer to summary judgment. But, if you are faced with a case in which the same actor is accused of firing after hiring, absent other compelling evidence of discriminatory intent, you will have a great defense to the discrimination claim.

What does an ADA interactive process not look like?

Upon attempting to return from a medical leave of absence, an employee requests the following accommodations: an ergonomic chair, adjusted lighting in her office, and a part-time schedule for the next eight days. Instead of providing the accommodations, or even discussing their availability, the employer refuses to permit the employee to return to work, instead telling her not to return until it was with no restrictions or accommodations. The company later fires the employee (seven days after she filed an EEOC charge challenging the failure-to-accommodate), telling her that she failed to engage in the interactive process.

These are the facts of the latest ADA lawsuit filed by the EEOC. If the facts as the EEOC alleges are true, this case seems like a slam dunk for the agency.

Once an employer becomes aware of the need for a reasonable accommodation, the ADA obligates it to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. That process requires communication and good-faith exploration of possible accommodations. An employer cannot dismiss, without discussion, accommodations proposed or requested by the employee. The employee might not be entitled to a requested or preferred accommodation, but he or she is entitled to a good-faith exploration of their possibility.

In this case, it appears that the employer did the exact opposite of what the ADA requires of it, and, to make matters worse, blamed the employee for the breakdown of the interactive process when later firing her on the heals of her EEOC charge. 

This employer is going to learn an expensive lesson about the reasonable accommodation process. Perhaps you can learn something from its apparent mistakes.