Your employees are your biggest security risk

It seems that every week we read a story about another company that has been hacked and had its information and data compromised. Most companies believe that their greatest security risk comes from cyber terrorists overseas—nameless and faceless hackers sitting in some high tech hovel in some foreign country.

Your greatest security risk, however, comes from within—your own employees.

Case in point? This story, via Fusion:

In January, authorities arrested Eddie Raymond Tipton, the Director of Information Security for the Multi-State Lottery Association, a non-profit organization that runs multi-state games for 33 different state lotteries, on charges of fraud.… Tipton is being accused not just of claiming a winning ticket he wasn’t allowed to have, but hacking into the lottery’s random number-generator software to engineer a win for himself.… 

According to the court documents, the Multi-State Lottery Association’s random-number generator computers are disconnected from the Internet and kept in a locked, glass-walled room that is under 24-hour video surveillance. Prosecutors allege that Tipton entered the room on November 20, 2010, changed the camera’s settings to have it record less frequently, and inserted a USB drive containing malware that would manipulate the results of the upcoming lottery drawing.

I'm not saying that the threat from your employees comes from the type of malicious mischief of which Tipton is accused. With data security, sins of omission can be as deadly as sins of commission. Do you have a Bring Your Own Device Policy? Do you have employees sign confidentiality agreements? Do you train your employees on the evils of unsecured WiFi and what to do when a mobile device goes missing? If not, you are being cavalier with your data security, which places your entire business at risk of being the next big data breach story.

Sex stereotyping as transgender discrimination

Last week the EEOC settled, for $150,000, one of its first cases alleging sex discrimination against a transgender employee. This week, another transgender employee filed a remarkably similar lawsuit in federal court in Louisiana. The key difference between the two cases? The Louisiana employer had a formal policy against employees presenting at work as a gender other than their birth gender:

Title VII does not (yet) specifically identify “sexual orientation” as a protected class. But, sexual stereotyping has been illegal for decades. Keep this in mind, and keep an open mind, if your employee shows up as John on Friday and Joan the following Monday.

EEOC seeks a quarter-billion dollars from NYC

Earlier this month, the EEOC’s New York District Office issued a Determination [pdf] finding probable cause to believe that New York City violated Title VII and the Equal Pay Act through a “pattern of wage suppression and subjective promotion based on … sex, race, and national origin.” The conciliation agreement the agency proposed seeks compensation in excess of more than $246 million. That eye-popping number should catch the attention of every employer.

While settlement proposals are merely numbers on a piece of paper, and no one expects NYC to roll over and play dead, this story holds an important lesson for employers. The EEOC, which is an agency of limited financial resources, is going to go after that which will provide the most bang for its buck. If you are a large employer, you have a large target on your back, and the EEOC is taking aim. Yet, even small employers should show concern, because while the size of the target is might be proportionate to the size of the employer, even a small hit can prove devastating for a small employer. If you are not currently under investigation (and most of your aren’t), consider yourself as living on borrowed time. Take advantage of it. Use this time to audit all of your HR and employer practices (hiring, firing, pay, policies, etc.) to ensure compliance with all employment laws, including Title VII. It might sound trite, but knowledge really is power. Better to find out that you are out of compliance before an agency knocks on your door than after.

Some thoughts on accommodations and flexible workplaces

I’ve been thinking a lot over the past three days about the flexibility that employers afford their employees. I am part of a family with two working professional parents (one of whom travels a great deal), and two young children. If I did not have flexibility in where I perform my job, my life would become exponentially more difficult in light of my wife’ travel schedule. The reality is that technology (specifically iPhones, emails, laptops, and iPads) makes work easier. I no longer need to be tethered to my office to be productive. Yes, I enjoy coming to work. I like the camaraderie of my co-workers. I like seeing and talking to other people. I’m a social person and I like being social. But, I can write a brief, or counsel a client, from anywhere. I don’t need my office to produce. 

Last Friday, the 6th Circuit decided EEOC v. Ford Motor Co., which, according to the Court, applied “common sense” to decide that “regular on-site attendance is required for interactive jobs, and that “regular, in-person attendance is an essential function … of most jobs….” I could not disagree more. When the 6th Circuit originally decided this case one year ago, it relied on technology to determine that employers should at least consider whether telecommuting is a reasonable accommodation for a particular job.

As technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties.

My main problem of the re-hearing panel’s decision is that the “common sense” it is applying is rooted in 1965, not 2015. To paraphrase John Oliver from last night, just as it is no longer acceptable to slap a female co-worker on the backside while calling her “toots,” it is no longer acceptable to assume that work must be performed at work. While I haven’t read the 1,400 page record of the Ford case to determine whether physical attendance at work was essential for this plaintiff’s job, my main critique of this decision is that it swings to needle too far to the side of inflexibility. It sets inflexibility as the rule, and telecommuting as the exception. I would flip the rule.

Telecommuting is an important benefit that promotes work/life balance for employees. It is great benefit that employers should be using to attract and retain employees for whom this benefit matters. With the state of technology in 2015, there is little reason that employer should not be doing so.

BREAKING: 6th Circuit says telecommuting is not a reasonable accommodation under the ADA

Almost one year ago, in EEOC v. Ford Motor Co., the 6th Circuit recognized telecommuting as a potential reasonable accommodation under the ADA. This morning, the same court issued its rehearing decision [pdf] in the same case, and the news is not good for those who are fans of workplace flexibility (me included).

Here is what the court said, in a nutshell:

A sometimes-forgotten guide likewise supports the general rule: common sense. Non-lawyers would readily understand that regular on-site attendance is required for interactive jobs. Perhaps they would view it as “the basic, most fundamental” “activity” of their job…. Regular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones. That’s the same rule that case law from around the country, the statute’s language, its regulations, and the EEOC’s guidance all point toward. And it’s the controlling one here.

I’ll have my full analysis on Monday morning. Here’s a sneak peak—I think this decision stinks.

WIRTW #363 (the “iron throne” edition)

I was a Sesame Street kid. Muppets taught me to read, count, and have manners.

I’m a tad late, however, to Game of Thrones. I’ve been frantically binge watching, trying to catch up before Season 5 begins (or, more likely, ends – I’m nearly through Season 3 as I type).

What do you get when you marry these two shows? Game of Chairs, of course.

How many Game of Thrones references can you catch?

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

Discrimination

• EEOC on Transgender Harassment, Discrimination, and Restrooms — via Phil Miles’s Lawffice Space
• A white employee tossed banana peels at work, and HE claims discrimination. He might WIN too. — via Eric Meyer’s The Employer Handbook Blog
• Are fraternities subject to title III of the ADA? — via Understanding the Americans with Disabilities Act 
• Five Lessons For Employers From the Ellen Pao Verdict — via California Employment Law
• SEC Clamps Down On Employee Agreements Thought to “Chill” Whistleblower Activity — via Employment Law Worldview
• After Ellen Pao’s Loss, More Women In Tech Bring Gender Discrimination Lawsuits — via Workplace Fairness

Social Media & Workplace Technology

• Cyber Security Competition Kicks Off — via The ChamberPost
• Cyber Insurance: What do Cyber Insurance Policies Cover and Cost? — via Privacy and Data Security Insight
• We Continue to Miss the Texting Opportunity In HR — via The HR Capitalist, Kris Dunn
• Do Employers Own LinkedIn Groups Created By Employees?–CDM v. Sims — via Technology & Marketing Law Blog
• Social Media and Time Management: Boogeyman or Symptom? — via Next Blog
• Why Do We Publicly Shame People Out of Their Jobs? — via Harvard Business Review

HR & Employee Relations

• Recognizing the Red Flags of Fraud — via FRAUDfiles
• The Unique World of “Leave of Absence” Policies — via ERC Insights Blog
• “Just Give Me a Reason” Not Enough to Satisfy Just Cause Provision — via Dan Schwartz’s Connecticut Employment Law Blog
• Employment Lessons from Germanwings: Why Mental Health Is So Important — via Employment Intelligence
• L. Ron Hubbard's Best Career Lessons — via Lifehacker
• Life in an Inflexible Office — via 1 Million for Work Flexibility
• Training Video on Millennials in the Workplace. — via What About Clients?
• Check Out The FTC’s Newly Revised Background Checks Brochure — via FYI Screening

Wage & Hour

• Hey Employer don’t look to the USDOL for help — via Mike Haberman’s Omega HR Solutions
• An Argument for Unfair Pay — via Compensation Cafe
• When Paying Accrued “Vacation” at Termination, Labels Don't Matter [Wage & Hour FAQs] — via Wage & Hour Insights
• Wal-Mart Part Deux? Company Appeals Class-Case to Supreme Court — via Workplace Prof Blog
• Does FMLA Cover In Vitro Fertilization? Does It Matter if Dad's Sperm is to Blame? — via Jeff Nowak’s FMLA Insights
• Intermittent FMLA Leave: A Chronic HR Headache (Part I) — via Southwest Florida HR Law & Solutions

LGBT rules for federal contractors now in effect

If you are a federal contractor or subcontractor, this is big week for you. On April 8, the OFCCP’s Final Rule Implementing Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors took effect.

What does this mean for federal contractor’s and subcontractors?

• You must take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
• You must include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
• You must update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
• You must post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Here’s what President Obama said when he signed the Executive Order last year:

It doesn’t make much sense, but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are—lesbian, gay, bisexual, transgender. And that’s wrong. We’re here to do what we can to make it right—to bend that arc of justice just a little bit in a better direction….

Equality in the workplace is not only the right thing to do, it turns out to be good business. That’s why a majority of Fortune 500 companies already have nondiscrimination policies in place. It is not just about doing the right thing—it’s also about attracting and retaining the best talent….

And yet, despite all that, in too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense….

For more than two centuries, we have strived, often at great cost, to form “a more perfect union”—to make sure that “we, the people” applies to all the people. Many of us are only here because others fought to secure rights and opportunities for us. And we’ve got a responsibility to do the same for future generations. We’ve got an obligation to make sure that the country we love remains a place where no matter who you are, or what you look like, or where you come from, or how you started out, or what your last name is, or who you love—no matter what, you can make it in this country.

Here’s to a day, hopefully in the very-near future, when this arc of justice no longer needs to be bent.

Direct evidence must … wait for it … exist to matter in a discrimination case

You have admire the creativity of attorneys. In Butler v. The Lubrizol Corp. (Ohio Ct. App. 3/31/15) [pdf], the plaintiff argued that direct evidence of race discrimination existed because, when confronted with a complaint of discrimination, the plaintiff’s supervisor did not deny it. The appellate court, in affirming the dismissal of the plaintiff’s claims, disagreed:

Specifically, appellant states the trial court erred by declining “to hold that a direct evidence method of proof can be made in a discrimination case based on an ‘admission by omission’….” His argument is that although Decker never admitted to making decisions based on race, he also never denied it, and that the lack of a denial can be used as direct evidence that the accusations are in fact true….

The trial court stated that appellant’s evidence of Decker’s silence “would require the finder of fact to infer solely from Decker’s failure to directly address the accusation of race discrimination that the accusation is true.” … We agree….

Discrimination cases are laced with emotion. The plaintiff, in essence, is accusing the employer and its management of bigotry of one kind or another. When confronted with this accusation, it’s okay for a manager or supervisor to show some humanity by denying it, vehemently. Rest assured, however, that silence in the face of these allegations should not hang the employer with the noose of direct evidence of discrimination.

NLRB issues official guidance on “ambush election” rules

One week from today, the NLRB’s “ambush election” rules take effect. Yesterday, the Board published its official guidance discussing how it will process representation cases going forward.

According to the Board, these new rules do not “establish new timeframes for conducting elections or issuing decisions.” Yet even the quickest reading of the guidance memo reveals the opposite. Timeframes for the filing of briefs, the holding of hearings, and other election-related events are accelerated. For example, employers will have only two business days after the approval of an election agreement to provide a voter list to the union (accelerated from seven days). Five days may not seem like much, but, when you add five days here, and five days there, and a few more days elsewhere, you end up with an election process that is extraordinarily shortened, limiting an employer’s ability to effectively mount a campaign to explain its position to its employees.

Curiously absent from the guidance, however, is a target deadline for the holding of the election. Instead, the Board says the following:

The Board has said that the election should be held at the earliest date practicable consistent with the Board’s rules. At this point, because there is no experience processing cases under the final rule, it is not possible to express a standard in terms of a specific number of days from the filing of the petition to the election. Rather, I expect that regional directors will exercise their discretion and approve agreements where the date agreed upon by the parties is reasonably close to the date when an election would likely be held if it were directed.

Employers, however, should not take too much solace from this omission. The Board is on record as saying that elections under the new rules should be held within 10 days. I have no reason to believe that “the earliest date practicable” is anything different than a target of 10 days.

The guidance memo is a necessary read for all employers. You can download it here [pdf].

NLRB eviscerates the line between insubordination and protected concerted activity

Employers struggle with how to handle employees to take to social media to vent about work. And, they do so for good reason. For one, employers risk creating a viral nightmare out of a fleeting vent. Also, the NLRB continues to take a long, hard look at Facebook firings.

Case in point: Pier Sixty, LLC [pdf].

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration. 

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! 

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Not so surprisingly, when the employer learned of the Facebook post, it fired the employee. Also not so surprisingly, the foul-mouthed Facebooker filed an unfair labor practice charge with the NLRB.

The NLRB sided with the employee:

[W]hile distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “fuck” and “motherfucker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.

Even if the air of this workplace is full with tolerated obscenities, should an employer ever have to tolerate this type of language specifically directed at a member of management and his family? More to the point, as the lone dissenter argued:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases NASTY MOTHER F—er and F—ck his mother and his entire f—ing family are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez’ statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

What are the takeaways for employers?

1. Insubordination is insubordination, period. An employer should not have to put up with this type of harsh language specifically directed at a member of management. Nevertheless, this case illustrates the regulatory environment under which employers currently operate, and the scrutiny that even the safest of terminations might receive.
2. If you want to make sure that you have the freedom to discipline any employee for the use of obscenities, it is safest to apply the same standard to all employees. Nevertheless, I firmly believe that the Board missed the mark in this case. There exists a real and meaningful distinction between the occasional conversational f-bomb and “Fuck his mother and his entire fucking family!!!!“

WIRTW #362 (the #rockweek2015 edition)

Cleveland is popping. We landed the 2016 Republican Convention. We keep showing up on national “best of” lists—best city to visit, best food, best beer…. Our urban renaissance continues at warp speed. We’re even revitalizing the Flats. And, one week from tomorrow, April 11, Rock Week starts, in honor of my city’s triennial hosting of the Rock & Roll Hall of Fame induction ceremony.

Rock Week kicks off with an awesome event. All day April 11, the Rock Hall will open its door for anyone and everyone to enter … free. The event, which the Rock Hall has dubbed Celebration Day, will feature two stages of music, food trucks, family programming and caps with fireworks in Voinovich Park.

At 2:30 pm, School of Rock will perform a set of music by 2015 inductee Joan Jett, featuring (among others) Norah Hyman on guitar and vocals. If you’re looking for something fun to do as we wait for spring to, well, spring, stop by the Rock Hall on April 11 and see my girl strum, sing, and rock. Here’s a small taste.

A video posted by Jon Hyman (@jonhyman) on Jan 24, 2015 at 9:33am PST

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

Young v. UPS

• The ADAAA, Young v. UPS, and the new state of pregnancy accommodation law — via Phil Miles’s Lawffice Space
• Pregnancy accommodation FAQs for employers — via Robin Shea’s Employment & Labor Insider
• What Connecticut Employers Need To Know About Young v. UPS — via Dan Schwartz’s Connecticut Employment Law Blog

Discrimination

• Tim Cook: “Religious Freedom” laws are pro-discrimination — via TiPb
• Transgender Discrimination? He Said, She Said… — via The Employment Brief
• Hiring for Culture Fit: Discrimination by Another Name? — via In House
• 4th Circuit Holds Social Anxiety May Be Disability Under the ADA — via Wisconsin Employment & Labor Law Blog
• Disabilities that pose a “direct threat” in the workplace — via EmployerLINC
• Caregivers are protected from associational discrimination — via Mike Haberman’s Omega HR Solutions
• (Un)Equal Protection: Why Gender Equality Depends on Discrimination — via Ross Runkel Report

Social Media & Workplace Technology

• Your ex-employee won’t tell you the password to your company’s LinkedIn page. Now what? — via Eric Meyer’s The Employer Handbook Blog
• Wearables in the office: Security risk? — via Business Management Daily
• The Enemy Within: Five Strategies For Protecting Your Data From Rogue Employees — via Privacy and Data Security Insight
• Eight Keys for Developing a Data Breach Response Plan — via netWORKed Lawyers
• What the Difference Between Information Security and Cybersecurity? — via Ride The Lightning
• Cybersecurity: FINRA’s Take — via Above the Law
• Social Media Searches: Go Beyond the Google — via Litigation PostScript. Persuasion Strategies for Litigators

HR & Employee Relations

• I Didn’t Come to Work Because I Dreamed I Got Fired — via Workplace Insights
• My Employee Suddenly Became Gluten Intolerant — via Evil Skippy at Work
• When You Have to Let People Go, Do It With “Professional Kindness” — via TLNT
• Is Work Flexibility Already Trickling Into Your Office? — via 1 Million for Work Flexibility
• The Love Contract – Taking the Romance Out of Office Trysts — via The Labor Dish
• Litigation Update: FCRA Claim Against Paramount is Thrown Out — via employeescreenIQ Blog
• A new employer obligation to provide predictable scheduling? — via Overlawyered
• In surprise show of support, filibuster-proof Senate majority backs paid sick leave — via Wonkblog

Wage & Hour

• PTO – I Use It or I Lose It (Mentally, That Is) — via Rob Schwartz’s Dad Working
• Ninth Circuit Creates Circuit Split Regarding FLSA Classification of Sales Advisor Position — via Wage and Hour Law Update
• The Department of Labor Investigates Retailers’ Relationships with Janitors — via The Wage and Hour Litigation Blog
• Secret Service Hit with Overtime Suit on Off-The-Clock Work — via Wage & Hour - Development & Highlights
• The Religious Freedom Restoration Act (RFRA) and Wage and Hour Law — via Wage & Hour Insights
• When — and How– to Require Certification of FMLA Leave Requests — via The Emplawyerologist

Labor Relations

• President Obama Vetoes Senate Joint Resolution Disapproving NLRB’s New Union Election Rules — via Employment Law Worldview
• NLRB to weigh in on high-stakes McDonald’s labor dispute — via The Hill
• Legislation Allowing Unionized Companies to Give Merit Raises Introduced in Congress — via Matt Austin Labor Law
• #Nextchat RECAP: Are College Athletes Students or Employees? — via Next Blog

“Daddy, why do Jewish people not like Catholics?”

On Wednesday nights, my wife and I drop our daughter off at band practice, and then take our son to dinner before his keyboard lesson starts. While sitting at dinner last night, my son hit us with this bomb: “Daddy, why do Jewish people not like Catholics? … Why did the Jews kill Jesus?”

If you’ve been a long-time reader, you know that my family is interfaith. Even though my kids are being raised Catholic, they understand that their Catholicism is only half of their religious background. I could go into a long dissertation as to why they are being raised Catholic, but the reality is that I am much more a secular Jew than a religious Jew, and since kids need to be raised something, Catholicism makes more sense, even to me.

Be that as it may, I certainly don’t want my kids thinking that their Jewish side doesn’t like their Catholic side. This morning on the way to the school bus I probed Donovan on where he got the idea that Jews don’t like Catholics. As it turns out (and as I suspected), it was his takeaway from hearing the crucifixion story at PSR on Monday night. I have no doubt that the message wasn’t one of hate, but rather one of miscommunication. Nevertheless, in Donovan’s developing six-year-old brain, when he was heard, “The Jews didn’t like/support/belive-in Jesus,” he understood it as, “Jews don’t like Catholics.” It an honest interpretation from an intelligent six-year-old boy, since he’s been taught his whole life that Catholicism and Jesus are intertwined.

I will explain to Donovan tonight that Jews and Catholics love each other. After all, he’s Catholic, as is his sister, mom, grandma, grandpa, aunts, uncles, and cousins—and I love all of them. I will try to explain, as best as I can, the historical context of what happened 2,000 years ago, and, hopefully, he’ll understand that what some people did those millennia long ago does not translate to today. Then, I will explain to the PSR teacher that she needs to be sensitive to the fact that she is teaching at least one interfaith child, and must tailor her message so as not to alienate or upset. We should be teaching inclusion, not estrangement.

The same lesson translates to your workplace. We live in a multi-cultural, multi-religious society, yet we are becoming more and more fragmented. Our great melting pot is not longer an olio, but an mishmash of separate ingredients holding for dear life to the edge of the pot. We are fragmented by religion, national origin, and political belief. Your challenge as an employer is to ensure that your workplace is integrated. You need to ask yourself what kind of workplace you desire. Do you want a workplace of inclusion or exclusion? Do you want employees to feel as though they are part of a team, or part of a tribe that happens to work among other tribes in the same building? To me, the former not only makes for a more cohesive workplace, but also one that limits the risk of liability for harassment, discrimination, and retaliation.

When English-only policies and federal labor law collide

It’s been nearly 8(!) years since I first wrote about the legality of English-only workplace rules. If you scan the archives, all of my coverage of this issue has focused on whether such policies discriminate on the basis of national origin in violation of Title VII.

Now the NLRB is attempting to interject itself into this debate.

Last month, in Valley Health System [pdf], an NLRB Administrative Law Judge concluded that a healthcare provider’s English-only rule violated employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

The policy in Valley Health System required that all employees speak and communicate only in English “when conducting business with each other,” “when patients or customers are present or in close proximity,” and “while on duty between staff, patients, visitors [and/or] customers … unless interpretation or translation is requested or required.”

The ALJ concluded:

Employees would reasonably construe [the] English-only rule to restrict them from engaging in concerted activity…. [The] English-only rule is vague as to time and location (i.e., must use English in patient and non-patient areas, in patient access areas, and between employees, staff, customers, patients and visitors), it infringes on an employee’s ability to freely discuss and communicate about work conditions, wages and other terms and conditions of employment.

What does this decision mean for your business?

1. It is only one decision of one ALJ. It is not binding on the Board, and it is not the law of the land. However, given how broadly the NLRB currently is interpreting employees’ section 7 rights under facially neutral workplace policies, businesses should nevertheless pay close attention.

2. It may not be sufficient that an English-only policy pass muster under Title VII as supported by a “business necessity.” Regardless of the business need for employees to communicate in English, a policy still may fall as unlawful if it prohibits or restricts employees from communicating about workplace terms and conditions.

Are Meerkat and Periscope the “next big thing” for employers to worry about?

Have you downloaded Meerkat or Periscope to your iPhone? Do you even know what Meerkat and Periscope are? They are new apps that permit you to live-stream video. They essentially work the same way—when you launch a live-stream, the app tweets out a link for your followers to watch your video. The only real difference in the experience (aside from the aesthetics of the apps) is that once you stop your stream on Meerkat the link goes dead and the video disappears, while Periscope can keep the link live for 24 hours of replay viewing.

Last week, within hours of Meerkat’s and Periscope’s launches, a massive building explosion on New York’s Lower East Side gave us a glimpse of the potential power of these apps, as they turned everyone with an iPhone into instant video-journalists. As for me, so far I’ve only used them to send out video of my dog sleeping on the couch (although I hope to put Periscope to use for some video legal updates in the near future).

Should employers worry about these apps? They offer employees tremendous power. Imagine your workers live-streaming alleged safety violations in your plant, or active sexual harassment, or a termination meeting, or an employer trying to break up a picket line?

Yet, this technology isn’t the-sky-is-falling for employers. For years, the iPhone has placed this same power into employees’ hands. An iPhone + an active internet connection + a YouTube account isn’t that much different than these new live-streaming apps. These apps remove some of the friction from the posting experience, but otherwise don’t create any new opportunities for your employees to journalize your workplace.

Employers shouldn’t knee-jerk ban these apps (or mobile devices in general) from the workplace. It’s possible that the NLRB would permit employers to ban the use of these apps in the workplace, but it’s just as likely that the NLRB will look at such policies with a harsh eye under its section-7 lens. Until we get some guidance from courts on these issues, there is real risk in broad-based bans of mobile technologies or apps.

Instead of rolling out a reactionary policy that could catch the NLRB’s attention, train your employees on their responsible use of the Internet, and your managers and supervisors on the need to be very aware of the possibility that everything that happens at work no longer necessarily stays at work. Indeed, if it happens at work, it is just as likely to end up on Facebook, Twitter, Instagram, YouTube … or Periscope.

You can follow me on Periscope @jonhyman, and tune in at 5 pm on April 11, where I’ll be broadcasting some of my daughter’s performance live from the Rock and Roll Hall of Fame.

6th Circuit deals blow to independent contractors

Have you ever had the cable guy show up to your house, only to see the name of some random LLC on the side of his work truck? Many cable companies use the services of “independent contractor” installers. But, are those installers truly “independent contractors,” or are they employees of the cable company? According to the 6th Circuit, in Keller v. Miri Microsystems LLC (3/26/15) [pdf], the answer is likely the latter.

In examining whether the plaintiff satellite dish installer was an employee or contractor, the court applied the six-factored “economic realities” test:

1. the permanency of the relationship between the parties;
2. the degree of skill required for the rendering of the services;
3. the worker’s investment in equipment or materials for the task;
4. the worker’s opportunity for profit or loss, depending upon his skill;
5. the degree of the alleged employer’s right to control the manner in which the work is performed; and
6. whether the service rendered is an integral part of the alleged employer’s business.

The majority applied a fact-based analysis to conclude that there were too many facts in dispute to make a legal determination on the issue. The dissent, however, took a more common-sense approach to the issue:

Despite our cataloging of the various factors that inform our decision, in the end we must take a common sense approach and look at the situation in its entirety. What does that show? Miri [the plaintiff’s single-member LLC] served as a middleman in the satellite installation business. The LLC had a single member: Anthony Miri. Its business plan was to work with individuals such as plaintiff who carry out the actual installations. Miri does not provide benefits to these individuals or withhold taxes. Nor does it enter into an employment contract with them. Plaintiff moved from providing installation services for another middleman, to Miri, and later to HugesNet directly, and provided additional products and services to customers directly while doing installations for Miri. It seems abundantly clear that both plaintiff and Miri intended that plaintiff be an independent contractor and conducted themselves accordingly. It is not clear what more the parties could have done that would have satisfied the Majority that plaintiff was an independent contractor.

What does all this mean? It is very difficult to establish, as a matter of law, that a worker is an independent contractor. Unless you want a jury deciding this complex issue, err on the side of “employee” unless it is abundantly clear that the worker is an independent contractor under the above six-factored test.

“TheCableGuy,” licensed under Fair use via Wikipedia - http://en.wikipedia.org/wiki/File:TheCableGuy.jpg#/media/File:TheCableGuy.jpg

WIRTW #361 (the “#RaceTogether” edition)

Have you heard the one about the coffee chain that wants its employees to engage customers about issues of race and racism in America? Here are the best things I read this past week on this issue, courtesy of Robin Shea’s Employment & Labor Insider:

• A conversation about race
• A conversation about race: The Exciting Conclusion

And here’s the best thing I watched this past week on the issue, care of John Oliver’s Last Week Tonight on HBO.

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

Discrimination

• Double Space in Docs Now Being Used for Age Discrimination — via The HR Capitalist, Kris Dunn
• In Employment Litigation, the Best Defense is a Good Defense — via Dan Schwartz’s Connecticut Employment Law Blog
• EEOC has defined “ability to interact with others” as a major life activity, making social anxiety disorder a disability under the ADA — via Employment Law Matters
• EEOC Settles ADA Case Against Employer Who Did Not Offer Leave to Probationary Employees — via Wisconsin Employment & Labor Law Blog
• 8th Circuit Rejects Trio of ADA cases — via Minnesota Labor & Employment Law Blog
• EEOC Sends Notice of Proposed Rulemaking on ADA and Wellness Programs to OMB for Clearance — via EEOC
• Will Kleiner Win the Discrimination Battle but Lose the Retaliation War? — via WinWinHR
• EEOC quietly moves forward with plans to collect compensation data — via HR Hero Line

Social Media & Workplace Technology

• Wearables for Your Wellness Program — via ERC Insights Blog
• Study: When it comes to security, smartphone users aren’t very smart — via Boy Genius Report
• This Arkansas bill would let bosses force employees to friend them on Facebook — via The Washington Post
• Have You Signed A Social Media Prenup? — via Fistful of Talent
• Three Risks That Come With Telecommuting — via In House
• Blogging Law II: Online Shaming — via HR Examiner with John Sumser
• How to Separate the Personal and Professional on Social Media — via Harvard Business Review
• Password security: Your pet’s name, birth date, and “password” are out — via Technology for HR
• Facebook Service: It's Real — via Phil Miles’s Lawffice Space

HR & Employee Relations

• Me - Still Evolving — via Rob Schwartz’s Dad Working
• Can medical marijuana be banned from the workplace? The answer is a bit hazy, expert says — via Washington Business Journal
• Biglaw Mommy: The Case for Flex-Time — via Above the Law
• 15 True Tales of Job Interview Embarrassment — via Evil HR Lady, Suzanne Lucas
• Panera Bread To Record Employees As They Work — via Workplace Diva

Wage & Hour

• When employees cash paychecks stamped “full payment,” are their OT claims waived? — via Eric Meyer’s The Employer Handbook Blog
• DOL Secretary Tells Congress New FLSA Regulations Are Delayed, Outlines Department Priorities — via Wage & Hour Insights
• When Isn’t Your Employee Eligible for FMLA Leave? — via The Emplawyerologist
• What the Heck is FMLA Leave?! — via Blogging4Jobs

Labor Relations

• NLRB to help illegal workers secure visas — via Walter Olson’s Overlawyered
• House Committee Grills NLRB Leaders on “Quickie” Union Election Rule — via TLNT
• Employee Manuals Need Spring Cleaning Thanks to the NLRB — via Michigan Employment Law Advisor
• Don’t Fear Recertification — via LaborPains.org
• How do You Lose a Union Election after Winning It? — via Matt Austin Labor Law

BREAKING: FMLA’s “same-sex spouse” rule on hold, for now

Today, the new rule that would permit FMLA benefits for same-sex spouses was to take effect. However, late yesterday, a federal judge in Texas granted a preliminary injunction [pdf] temporarily halting the rule.

The plaintiffs—the attorney generals of four states that do not recognize same-sex marriages—successfully argued that they were likely to succeed on the merits of their claim that the FMLA rule infringed on their states’ rights under section 2 of the Defense of Marriage Act to ignore same-sex marriages lawfully entered in other states.

This is only a temporary victory for the plaintiffs in this case. And, while it legally only impacts the four states that are plaintiffs in this action, practically, the DOL will hold any implementation of this rule until this case plays itself out.

As for the merits of the case itself, as Robin Shea points out, this case could become moot (clearing the way for the FMLA rule-change) if the Supreme Court legalizes same-sex marriage later this term. Fingers crossed.

I’ll give you one guess where the NLRB is holding its “ambush election” training?

Since I’ve already provided more than 3,000 words of quality labor-and-employment content this week, today’s post will be on the (much) shorter side.

On April 14, the NLRB’s “ambush election” rules take effect. You can read all about these rules here. In advance of this implementation, the NLRB is training its employees on the ins and outs of these new rules. Do you know where the NLRB is conducting this training?

According to the U.S. Chamber of Commerce, the NLRB is holding its “ambush election” training at the New York City office of the Service Employees International Union. Does it seem a bit … disingenuous / offensive / plain-ol’-wrong … that the NLRB has chosen to train its own employees (federal employees, paid by your and my tax dollars) at the office of an organization that will be the beneficiary of these pro-union election rules? I’ll give the NLRB one thing. At least it doesn’t play hide-the-ball with its very pro-union agenda.

BREAKING: McDonnell Douglas lives! #SCOTUS applies decades-old test to pregnancy accommodation claims

This morning, the U.S. Supreme Court issued one of its most anticipated employment-law rulings of this term, in Young v. United Parcel Service [pdf]. The case asked under what circumstances an employer must provide a workplace accommodation to a pregnant employee.

In its ruling, the court rejected the positions offered by both the employer and the employee.

• UPS argued that the Pregnancy Discrimination Act requires courts to compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the employer has violated Title VII. The Court rejected this argument as too narrow of a reading of the statute.
• Young argued that the PDA requires an employer to provide the same accommodations to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work. The Court rejected this argument because the PDA, on its face, does not grant pregnant workers an unconditional “most-favored-nation” status.

Instead, the Court crafted its own interpretation by applying a modified McDonnell Douglas analysis to pregnancy accommodation claims:

Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates….

If the employer offers an apparently “legitimate, nondiscriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.

What’s the problem with this decision? As Justice Scalia astutely and correctly points out in his dissent, by permitting a pregnant worker to establish pretext by demonstrating a disadvantage presented by the application of a facially neutral work rule, the majority’s opinion allows one to establish intentional disparate treatment by demonstrating a disparate impact. What does this mean for employers? It means that employers must analyze the impact of work rules on pregnant workers and accommodate accordingly. Thus, in application, the majority’s rule grants pregnant workers the unconditional “most-favored-nation” status that the majority says it was rejecting.

My practical take for handling pregnant workers remains unchanged. Unless you can unequivocally demonstrate that you’ve never provided an accommodation to a disabled worker, you should be prepared to offer the same to your pregnant workers.

A lesson on salaried employees: Ohio court confirms that fluctuating work week cannot apply retroactively

Just because you pay an employee a salary does not render that employee “exempt” from the overtime requirements of the Fair Labor Standards Act. A salaried employee can be non-exempt if the employee fails to meet the non-salary aspects of the tests for the exemption. For example, a assistant retail manager who exercises no independent judgment in how he or she “manages” the store, but merely serves as a glorified, and more highly paid, babysitter for the other employees.

As an employer, you have two options to pay these salaried, non-exempt employees:

1. Under the standard method, you calculate the employee‘s weekly rate based on the salary divided by the number of hours worked that week, and then pay the employee 1.5 times that rate for all overtime hours. Thus, if a non-exempt employee earns a salary of $1,000 a week, and works 50 hours in a week, the employee would earn an additional $30 per hours worked over 40 ($1000 / 50 = $20 per hour base weekly rate x 1.5 = overtime premium of $30). Thus, in this week, the employee would earn an additional $300 for the 10 hours of overtime, rendering his total pay for that week $1,300, not the customary $1,000 salary.

2. Under the fluctuating workweek method, you include the base-rate part of the overtime premium in the employee’s weekly salary, and only pay the 0.5 premium kicker as overtime. Using the same example as in number 1 above, the employee would still have an hourly rate of $30, but would only earn an additional $100 for the week, as under this method, $20 of the $30 overtime rate has already been paid as part of the base salary.

As you can see, there is a clear economic advantage to employers using the fluctuating workweek calculation to pay overtime to salaried non-exempt employees. You’ll realize a 66 percent savings on your overtime pay. Under the FLSA, however, an employer cannot unilaterally implement the fluctuating workweek calculation. Instead, to pay salaried, non-exempt employees via this advantageous method, you must meet these four elements:

1. the employee’s hours must fluctuate from week to week;
2. the employee must receive a fixed salary that does not vary with the number of hours worked during the week (excluding overtime premiums);
3. the fixed amount must be sufficient to provide compensation every week at a regular rate that is at least equal to the minimum wage; and
4. the employer and employee must share a “clear mutual understanding” (best confirmed in a written document) that the employer will pay that fixed salary regardless of the number of hours worked.

Recently, an Ohio federal court examined whether an employer, sued in a misclassification case, can use the fluctuating work week for its calculation of unpaid overtime. The court said no, for one key reasons: in a misclassification case, it is impossible for the employer and its employee to have had the required “clear mutual understanding.” Because the parties never agreed to an essential term of a fluctuating work week arrangement—that overtime would be paid at different rates depending on the number of hours worked per week—it is improper to use that calculation for purposes of back pay in a misclassification case.

What are the takeaways from this case?

1. If you haven’t recently audited your wage-and-hour practices, it’s a good idea to do so sooner rather than later. Classification issues should be a key component of any wage-and-hour audit. Do not mis-assume that an employee is exempt merely because you pay a salary.

2. If you have non-exempt salaried employees who work hours fluctuate from week to week, give strong consideration to implementing a fluctuating work week, via a written agreement that explains, in plain English the arrangement.

3. If a salaried employees whom you’ve been treating as exempt sues claiming a misclassification, it is likely that you will have to pay damages at the full time-and-half overtime rate, not at the half-time fluctuating work week rate.

NLRB judge’s analysis of T-Mobile’s handbook is of note for the provisions she concluded to be lawful

Yesterday, I examined, in detail, the NLRB’s General Counsel’s memo on employer policies. Today, I’m going to examine a recent decision by an NLRB judge putting those principles to use.

The opinion [pdf] consolidated seven different unfair labor practice complaints against T-Mobile, challenging 17 different provisions in T-Mobile’s employee handbook, Restrictive Covenant and Confidentiality Agreement, and Code of Business Conduct.

More interesting than the work rules that the ALJ concluded violated employees’ section 7 rights are the work rules that the ALJ concluded did not.

Recording in the Workplace

Recall, yesterday, the NLRB-approved clause in the Wendy’s employee handbook, which provided employees a roadmap to their local NLRB regional office. In the T-Mobile case, the ALJ confirmed as legal the same type of policy—a workplace recording policy—without the NLRB boosterism.

Here’s the policy the ALJ approved in T-Mobile:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recording of work-related or workplace discussions. Exceptions may be granted when participating in an authorized TMUS activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

Apart from customer calls that are recorded for quality purposes, do not tape or otherwise make sound recordings of work-related or workplace discussions without the permission of all participants and Human Resources or the approval of the Legal Department. Failure to request and receive such permission violates Company policy and may violate the law.

Because of the risk presented by employee’s surreptitiously recording the workplace, the ALJ concluded that this policy did not impinge in employees’ section 7 rights:

The policy explicitly sets forth valid, nondiscriminatory, rationales for its existence. Concerns for safety, maintenance of a harassment free work environment, protection of trade secrets, and a workplace free from unnecessary distractions are all valid reasons for promulgating the rule. The policy expresses a rationale narrowly tailored to address these concerns; and there is no evidence of it being applied in a discriminatory manner.  It is not unreasonable for the Employer to fear that a workplace with surreptitiously recorded conversations would foster hostility, suspicions, low morale, and impede free and open discussion among members of its work force.  It would certainly hinder the open lines of communication between supervisors and employees because of fears that discussions could be secretly recorded for use against them at a later date.

Workplace Conduct

The ALJ also concluded that the following “Workplace Conduct” Policy was lawful:

Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.

Why?

Within the context of the policy, all employees would understand a prohibition against fighting to mean a physical altercation and by any standard, including the Act, fighting would be inappropriate in the workplace. I do not believe that the rule can reasonably be read as pertaining to Section 7 activity. In the words of the Board, “To ascribe such a meaning to these words is, quite simply, farfetched. Employees reasonably would believe that this rule was intended to reach serious misconduct, not conduct protected by the Act.”

Conclusion

Reading this decision in conjunction with the NLRB General Counsel’s Report confirms what I have believed for a long time—the NLRB is splitting hairs in drawing fine distinctions between employment policies that violate employees’ section 7 rights and those that don’t. Regardless of whether the Board and its judges are splitting hairs, you need to have these issues on your corporate radar. The T-Mobile issues got to the Board through efforts by the Communications Workers of America, which has been pushing for years for T-Mobile’s employees to join its union.

Don’t assume that a) your policies are good enough, or b) a labor union will not target your company. Unions are using the current pro-employee regulatory environment to ramp up their organizing efforts. If your company becomes a target, a union will use overly broad work rules as an inroad to the NLRB and to your employees. Act now to make sure your handbook and other policies pass NLRB muster, before someone (or something) else makes that decision for you.

Analysis of the NLRB’s guidance on employer rules (or, meet the new boss … same as the old boss)

It’s been nearly two years since then-acting NLRB General Counsel Lafe Solomon issued his office’s guidance on social media policies under Section 7 of the NLRA. At the time, I called the Board’s position “a bungled mess.”

Last Wednesday, current NLRB General Counsel Richard Griffin issued his 30-page missive on employer policies under Section 7 of the NLRA [pdf]. I’m sad (but not surprised) to report that not much has changed in the NLRB’s misguided approach to facially neutral employment policies. The NLRB continues to take facially neutral policies, spin a parade of non-existent anti-union horribles, and conclude that because some hypothetical employee could under the exact proper set of circumstances, that the policy could restrict an employee’s right to communicate with a labor union or complain about work, said policy violates all employees’ section 7 rights.

Notably, the Board seems to be splitting hairs between what is a lawful policy and what is an unlawful policy. Consider the following (non)distinctions the NLRB is drawing:

 

Confidentiality

Unlawful: “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”

– vs –

Lawful: “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”

 

Conduct Towards the Company and Supervisors

Unlawful: “[B]e respectful to the company, other employees, customers, partners, and competitors.”

– vs –

Lawful: “No rudeness or unprofessional behavior toward a customer, or anyone in contact with the company,” and “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in discipline.”

 

Conduct Towards Fellow Employees

Unlawful: “Do not send unwanted, offensive, or inappropriate emails.”

– vs –

Lawful: “No harassment,” and no “use of racial slurs, derogatory comments, or insults.”

 

Interaction with Third Parties

Unlawful: “Associates are not authorized to answer questions from the news media…. When approached for information, you should refer the person to [the Employer’s] Media Relations Department.”

– vs –

Lawful: “Events may occur at our stores that will draw immediate attention from the news media. It is imperative that one person speaks for the Company to deliver an appropriate message and to avoid giving misinformation in any media inquiry…. Answer all media/reporter questions like this: ‘I am not authorized to comment for [the Employer] (or I don’t have the information you want). Let me have our public affairs office contact you.’”

 

Use of Company Logos, Copyrights, and Trademarks

Unlawful: “Company logos and trademarks may not be used without written consent.”

– vs –

Lawful: “[I]t is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, trademarks and other intellectual property, including [the Employer’s] own copyrights, trademarks and brands.”

 

Restricting Photography and Recording

Unlawful: Prohibition from wearing cell phones, making personal calls or viewing or sending texts “while on duty.”

– vs –

Lawful: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.”

 

Restricting Employees from Leaving Work

Unlawful: “Failure to report to your scheduled shift for more than three consecutive days without prior authorization or ‘walking off the job’ during a scheduled shift” is prohibited.

– vs –

Lawful: “Entering or leaving Company property without permission may result in discharge.”

 

Conflict-of-Interest

Unlawful: “Employees may not engage in any action that is not in the best interest of [the Employer].”

– vs –

Lawful: Employees must refrain “from any activity or having any financial interest that is inconsistent with the Company’s best interest” and also must refrain from ‘activities, investments or associations that compete with the Company, interferes with one’s judgment concerning the Company’s best interests, or exploits one’s position with the Company for personal gains.”

How does the NLRB spell splitting hairs? Wow, the Board’s GC is drawing some very narrow distinctions, based on little more than the use of few different words.

 

One More Thing

If you’ve seen any of the recent Marvel movies, you know to stick around though the credits, because there’s always an extra scene hinting at what will happen next in movies to come. Is General Counsel Griffin is taking his cue from Marvel? If you stick around to the end of his report, you’ll find revised policies that the NLRB approved as part of a settlement with Wendy’s. The devil, however, is in the details. Consider this policy on Phones, Cameras, and Recording Devices, given the NLRB’s seal of approval:

Due to the potential for issues such as invasion of privacy (employee and customer), sexual or other harassment (as defined by our harassment /discrimination policy), protection of proprietary recipes and preparation techniques, Crew Members may not take, distribute, or post pictures, videos, or audio recordings while on working time. Crew Members also may not take pictures or make recordings of work areas. An exception to the rule concerning pictures and recordings of work areas would be to engage in activity protected by the National Labor Relations Act including, for example, taking pictures of health, safety and/or working condition concerns or of strike, protest and work-related issues and/or other protected concerted activities.

How do you feel about policies that provide employees with a roadmap to your local NLRB regional office? Guess what? I’m not a huge fan either.

Regardless, this report confirms that employee handbooks and other workplace policies will continue to remain in the middle of the NLRB’s radar for the foreseeable future. If you haven’t recently updated your employee handbook and other policies, now would be a good time to have your friendly neighborhood employment lawyer do so.

Come back tomorrow for a real-world example of how NLRB judges are applying these rules.

WIRTW #360 (the “one shining moment” edition)

March Madness is now if full swing, with 20 games down, and 47 to go (at least as this post goes live). How’s your bracket doing? The always awesome Rhett Miller feels your pain (in song).

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

Discrimination

• Starbucks ‘Race Together’ promotion sparks controversy — via Ragan.com
• What’s your workplace retaliation IQ? — via Robin Shea’s Employment & Labor Insider
• Why Does the EEOC Make Mistakes (Part I) — via Workplace Fairness
• A How-To Guide to Understanding the Americans with Disabilities Act (ADA) and Reasonable Accommodation — via Blogging4Jobs
• Sweeping ADA Ruling By The Fourth Circuit Should Make Employers Anxious — via Fitzpatrick on Employment Law
• Is Ban the Box Legislation Out of Control? — via employeescreenIQ Blog
• Federal judge reincarnates atheist’s religious bias claims — via Eric Meyer’s Employer Handbook blog
• Parental Leave Can’t Just Be for Mothers — via Harvard Business Review

Social Media & Workplace Technology

• Believe This? Poor Performing Employees Use Internet Explorer — via The HR Capitalist, Kris Dunn
• Employee fired via Twitter–before she even starts — via Business Management Daily
• Instant Messaging at Your Company: Convenient, but Problematic — via In House
• Biometric Time Keeping — via Employment Essentials
• Blogging Law I — via HR Examiner with John Sumser

HR & Employee Relations

• Vacation Daze: Leave ‘Em Alone — via Dan Schwartz’s Connecticut Employment Law Blog
• March Madness and Employment Law — via Workplace Prof Blog
• Collateral Estoppel and Unemployment Compensation Hearings — via Phil Miles’s Lawffice Space
• Backlash To Sandwich Noncompetes: Three States Propose Bills To Limit, Ban Noncompetes — via Donna Ballman’s Screw You Guys, I’m Going Home
• “Professional” Distinction: A New Approach To Bans On Non-Competes? — via Trade Secret Insider
• Ten Actions You Can Take Now to Protect Your Company’s Trade Secrets – Action Nine: Be Pro-Active and Preserve Evidence — via netWORKed Lawyers

Wage & Hour

• Don’t Touch Me or I’ll Sue: Another Huge Win for Unpaid Interns — via The L•E•Jer
• February Comes and Goes with No Action by DOL on New FLSA Regulations — via Wage & Hour Insights
• Another Step In The Right Direction: W.D. Ark. Permits Certain Types of Private FLSA Settlements — via Hunton Employment & Labor Law Perspectives™
• 525,600 Minutes of Overtime Consideration — via The Wage and Hour Litigation Blog
• What Are the Changes to the New FMLA Ruling? — via ERC Insights Blog
• Employer's Lack of FMLA Compliance in Handling FMLA Leave Request is a Lesson for the Rest of Us — via Jeff Nowak’s FMLA Insights
• Suspension without pay may be a COBRA qualifying event — via Mike Haberman’s Omega HR Solutions

Labor Relations

• NLRB High On Marijuana Labor Relations — via Above the Law
• NLRB Wants Former Employers to Pay for Job Search Expenses of Former Employees — via Matt Austin Labor Law
• More Unionization, More Employee Rights Coming — via Cleveland Employment Law Blog
• Teamsters and Technology II – Labor’s “Silicon Valley Rising” Campaign — via Management Memo
• Shockingly Dumb NLRB Political Move of the Year? — via Labor Relations Institute

An über-huge lawsuit for the employee/contractor distinction

Last week, two different California federal judges reached the same conclusion in two different lawsuits brought against two different ride-hailing companies, Uber and Lyft.

O’Connor v. Uber Technologies, Inc. and Cotter v. Lyft, Inc. are putative class actions alleging that the drivers of each company are employees, and not, as the companies claim, independent contractors. The distinction is monumental, since employees receive a wealth of legal protections, not the least of which is a guaranteed minimum wage and overtime for hours worked in a week over 40, while independent contractors serve with virtually no legal protections at all.

In each case, the judge concluded that the issue was too close to call on summary judgment, and punted the issue for a jury to decide. According to the judges, the drivers resemble contractors in some regards, such as their ability to choose their work hours and their passengers, and yet resemble employees in other regards, such as the degree of control the companies exercise over both the drivers’ interactions with customers and their tenure serving the company.

For more on the important issue of the employee/contractor distinction, and why you should err on the side of “employee” unless it is abundantly clear that the worker is an independent contractor, I recommend the following from the archives:

• Employee vs. independent contractor: do you know the difference
• Is this the end of the independent contractor as we know it?

BREAKING: NLRB Office of General Counsel issues report on employer rules

Today, the NLRB Office of General Counsel issued its report on employer handbook rules under section 7 of the NLRA. It’s a meaty 30-page report that will take some time to digest. I’ll have my thoughts and analysis early next week.

In the meantime, you can download the report here:  http://apps.nlrb.gov/link/document.aspx/09031d4581b37135.

OSHA and pro sports—are concussions the NFL’s black lung?

San Francisco line backer Chris Borland rocked the sports world yesterday by announcing his retirement from pro football at the age of 24 after playing only one NFL season. His reason: concerns about the long-term impact of football-related head trauma.

The news comes even as the NFL has implemented league-wide rules in an attempt to minimize head injuries. And, those rules seem to be working. During the 2014 season, the rate of concussion fell 25 percent as compared to the 2013 season, and are down 36 percent since 2012. Yet, NFL players still suffer 0.43 concussions per game. And, while the rate of concussions has fallen, the rate of injuries overall continues to rise, up 17 percent from 2013 to 2014, with 265 players placed on injured reserve during the 2014 regular season. This means that during the NFL’s regular season, more than one player per game suffered a season-ending injury.

Think about those numbers? If you ran a manufacturing plant, would you be content with a “Days Without Injury” calendar that was forever set on “zero?” And, more to the point, wouldn’t you expect OSHA eventually to take interest in your extraordinarily unsafe workplace?

All the way back in 2008, OSHA opined that it has the jurisdiction to regulate professional sports if the athletes are employees. There is no doubt that NFL players, protected by a labor union and parties to a collective bargaining agreement with the NFL, are employees, subject to OSHA’s regulatory jurisdiction.

OHSA lacks a standard on pro sports, but it does have its general duty clause. It provides, “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” OSHA used this general duty clause to cite Sea World of Florida following  a trainer’s death from a killer-whale attack. If the general duty clause can reach the entertainment industry, why can’t it also reach professional sports?

While OSHA likely can reach pro sports, the bigger question is will it? On its own accord, history shows that the answer is no. But, what if the NFLPA believes that the NFL isn’t doing all it could to reduce the risk of head injuries and files a complaint with OSHA? What then? Or, what if, god forbid, a player dies on the field during a game? Surely, OSHA would then investigate. For years, the government and the coal industry ignored the risk of black lung disease, even as more and more miners fell ill. The NFL has the power to regulate head injuries. It better be sure it is doing everything it can, or it is taking a huge risk that OSHA will step in and regulate in the league’s place.

When loose lips sink defense ships

“So, what is is, your job or your daughter?” That one question cost an employer summary judgment in its employee’s associational disability discrimination case, in Manon v. 878 Education, LLC (S.D.N.Y. 3/4/15) [pdf].

The employee in question, a school receptionist, had attendance issues relative to her care for her infant with Reactive Airway Disease. During her 132 days of work, she arrived late 27 times, left early 54 times, and was absent another 17 times, batting .258—passable for a second baseman, but well below the employment Mendoza Line. Nevertheless, with the exception of one verbal tardiness warning, her personnel file was devoid of any documentation of attendance issues.

When Manon returned to work following a two-day absence to care for her daughter, who had been hospitalized with breathing issues, her supervisor told her that he was letting her go. The reason? “How can you guarantee me that two weeks from now your daughter is not going to be sick again? …So, what is it, your job or your daughter?”

Based on that statement, the court denied the employer’s motion for summary judgment, leaving the employer two options to resolve the case—a settlement or a risky jury trial.

It goes without saying that discrimination is wrong. Maybe the lesson here is that if you are ignorant enough to fire someone because of their caregiving needs at home, maybe it is asking too much to expect you to know enough not to express that intent out loud.

Why your control employees must care about employment laws

Last week I was asked if managers and supervisors have any liability for their own acts of discrimination or other unlawful activities. Like most things in the law, the answer is, “It depends” on the law about which you are concerned.

If it’s wage and hour advice, for example, then the Fair Labor Standards Act provides for individual liability for those who exercise significant control over the company’s operations. Some courts apply the same rationale to violations of the FMLA, although individual liability under that statute is far from a settled issue. The 3rd, 5th, and 8th Circuits have all found that there can be individual liability for FMLA violations, while the 6th (which covers Ohio) and 11th Circuits have gone the other way.

There are also potential common law claims under states law (e.g., intentional infliction of emotional distress) that, while hard to establish, create yet another avenue of individual liability. 

If it’s discrimination liability, there is no issue for the individuals under since Title VII and the other federal employment discrimination laws, none of which provide for any individual liability. 

Here is the part, however, to which Ohio employers must pay attention. Under Ohio’s employment discrimination statute, managers and supervisors can be held individually liable for their own acts of discrimination. So, an employee can not only sue your company, but also the individual who made the termination decision, the HR manager who dropped the harassment-investigation ball, or the supervisor who failed to engage the disabled employee in the interactive process. 

I’ve long argued that Ohio needs to change its employment discrimination statute to eliminate individual liability and bring our state law in line which its federal counterpart and the laws of nearly every other state. Yet, as long as this is the law of our state, these liabilities need to be central part of your company’s EEO and anti-harassment training, so that your managers and supervisors understand their own personal risk if they don’t understand their EEO obligations.