Obama to announce new overtime regulations, but will they really matter?

Last night, on the Huffington Post, President Obama blogged his intentions to announce long-awaited new overtime regulations later today.

In a post entitled, “A Hard Day’s Work Deserves a Fair Day’s Pay,” the President wrote:

Right now, too many Americans are working long days for less pay than they deserve. That’s partly because we’ve failed to update overtime regulations for years—and an exemption meant for highly paid, white collar employees now leaves out workers making as little as $23,660 a year—no matter how many hours they work. 

This week, I’ll head to Wisconsin to discuss my plan to extend overtime protections to nearly 5 million workers in 2016, covering all salaried workers making up to about $50,400 next year.

So, what do we know about these new regulations?

• The salary-level at which employees will qualify for either the administrative, executive, professional, and computer employee exemptions will increase from $23,660 a year (or $455 per week) to $50,400 (or $969.23 per week) (could they not make it an even thousand?)
• The earliest these new regulations will take effect is sometime next year.

These rules are not final. They still must first undergo a public-comment period. Nevertheless, this announcement is the first concrete details about these long-rumored rules, and could become a key part of President Obama’s legacy, which, unlike the Affordable Care Act, will be done without Congressional approval.

These new rules will change the pay structure for millions of American workers. Yet, they may not result in the sweeping pay increases envisioned by the White House. American businesses, many of which already run leanly, need not absorb increased payroll from the switch of workers from exempt to non-exempt status. Instead, a company could simply calculate how much to pay an employee, on an hourly basis (anticipated overtime included), to reach the employee’s current salary level. Or, a company could ban overtime altogether. Thus, gross compensation probably will not change. What will change, however, is the flexibility salaried workers enjoy. Will Johnny Manager appreciate having to punch a time clock, especially if his 2016 W-2 reads the same as his 2015 W-2? And will that change undermine the authority certain employees need to have to effectively perform their jobs?

While the White House has laudable aspirations to “strengthen the middle class” and “commit to an economy that rewards hard work, generates rising incomes, and allows everyone to share in the prosperity of a growing America” in reality, it will likely be “meet the new boss, same as the old boss.”

---

(Update) The DOL has made available various resources (hat tip: Lawffice Space):

• The Notice of Proposed Rulemaking [pdf] (all 295 pages, which includes the text of the proposed regulatory changes)
• A helpful one-page fact sheet
• A FAQ

Equal in love, but not yet equal at work—the next frontier of LGBT rights

Friday was certainly exciting. SCOTUS surprised everyone by releasing Obergefell v. Hodges [pdf] a day earlier than expected.

In case you missed it, in a 5-4 opinion authored by swing-vote Justice Kennedy, SCOTUS held that gay marriage as a nation-wide fundamental right:

The Court now holds that same-sex couples may exercise the fundamental right to marry…. State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

What is getting all the press, however, is the beautifully poetic closing paragraph of Justice Kennedy:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

What is next for LGBT rights? The right to be free from employment discrimination.

Shortly after Obergefell’s publication, Wonkblog published a stirring post calling for the end of all workplace discrimination against LGBT individuals. In that post, Wonkblog was kind enough to share this map (created by the Human Rights Campaign) of the current state of LGBT workplace-discrimination laws:

 

Where are we on this issue?

• 21 states and the District of Columbia ban workplace discrimination on the basis of sexual orientation.
• 18 of those states also ban workplace discrimination on the basis of gender identity.
• Per Executive Orders, the federal government, along with its contractors and subcontractors, are also prohibited from discriminating against their employees on the basis of sexual orientation and gender identity.
• 89 percent of the Fortune 500 include sexual orientation in their non-discrimination policies.

We have come a long way in just the past few years. Indeed, I believe that a majority of Americans now support the extension of all civil rights to the LGBT community. Yet, Congress has consistently failed to act on the Employment Nondiscrimination Act, which would extend Title VII’s coverage to sexual orientation and gender identity. SCOTUS’s ruling in Obergefell is a huge step in the right direction. Let’s hope it is a step that will lead Congress to passing the ENDA sooner rather than later.

My appearance on Stossel, now live on the Internet.

Special bonus on this fine summer Friday. If you missed my appearance on Stossel two weeks ago, Fox Business has posted the episode on its website.


You can watch it here. My segment starts at 18:39.

WIRTW #372 (the “bad work day” edition)

Next time you think you had a bad day at work, remember, at least you weren’t hit with an axe.

From Mediate:

During last Sunday’s broadcast of Fox & Friends, co-host Pete Hegseth tossed an axe to tease an upcoming segment on timbersports, missed the target, and hit a marching band percussionist standing in the distance.

Let’s go the replay:

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

Discrimination

• Can Employee Display a Confederate Flag on Facebook as Free Speech? Or Can Employer Take Action? — via Dan Schwartz’s Connecticut Employment Law Blog
• A look at what has and hasn’t changed since the civil rights era — via Wonkblog
• The N-Word at Work: Jury Trial Edition — via Workplace Prof Blog
• Does a Supervisor’s Use of the Words “Historically” and “Old School” Prove Age Discrimination? — via Minnesota Employer
• Current User of Illegal Drugs Does Not Mean Actual Use When It Comes to a Recovering Addict — via Understanding the Americans with Disabilities Act
• What Managers Can Learn From Nasty Gal’s Pregnancy Discrimination Lawsuit — via Fast Company
• Tattoo-ism: Where Body Art Meets Employment Discrimination — via The Labor Dish
• Harassment “must-have” no. 5: No retaliation! — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• At the Office, Millennials Are the Boss When It Comes to Technology — via The Wall Street Journal
• Fired Millennials Most Likely To Vent Over Social Media — via Workplace Diva
• Mobile’s Role in Your Digital Workplace Strategy — via Forbes
• Unsecured Networks More Susceptible to Data Theft — via Trading Secrets
• The Next World War Will Be A Cyberwar — via Ride The Lightning
• Next Up: A Home Depot Data Breach-Related D&O Lawsuit? — via The D & O Diary
• Gone, But Not Forgotten - A Deactivated Facebook Account Can Be Discoverable — via The National Law Review
• The Guide to Social Media and Securities Law — via Socially Aware Blog
• Why Fitbit Doesn’t Do a Damn Thing For Wellness — via The HR Capitalist, Kris Dunn
• The “E” in E-Mail stands for Exhibit. As in Exhibit A. — via Eric Meyer’s The Employer Handbook Blog

HR & Employee Relations

• Why Employee Handbooks Matter — via ERC Insights Blog
• Why It’s Time to Turn the Workplace Inside Out — via Huffington Post
• When Millennials Rule The World Of Law — via Above the Law
• 10 Reasons You Should Absolutely Not Work This Weekend — via Evil HR Lady, Suzanne Lucas
• Online Application Systems Open a New Front in FCRA Class Actions — via Laconic Law Blog
• My Employee Came To Work Drunk — via Evil Skippy at Work
• When stupid HR results in new laws — via Mike Haberman’s Omega HR Solutions
• Non-Compete Legislation – The Jimmy John’s Backlash — via Smooth Transitions
• Corporate Divorce: Treat Your Employment Contract Like a Prenup — via Employment Matters Blog

Wage & Hour

• 3d Cir. on FMLA “Negative Certifications” and Right to Cure — via Phil Miles’s Lawffice Space
• After FMLA leave, watch timing of firing — via Business Management Daily
• Fourth Circuit Denies School Principal’s FMLA Retaliation Claim — via The Employment Brief
• Employee Benefits: New Momentum on Paid Leave, in Business and Politics — via The Upshot

Labor Relations

• Franchises fear “devastating” change to their business model — via Walter Olson’s Overlawyered
• Data Breach Leads to NLRB Filing Complaints — via Matt Austin Labor Law
• House, Senate Propose NLRB Budget Cuts and Policy Limitations — via Labor Relations Today
• NLRB: Decertification petition shouldn’t be processed — via Labor Relations Institute
• NLRB Declares “Conflict-of-Interest” Policy to be Unlawful on Its Face — via Ohio HR Law
• New union election rules yield much quicker elections — via EmployerLINC

A lesson in how NOT to respond to a harassment complaint

Diana Retuerto worked in the office of Berea Moving & Storage. She claimed that the company’s owner, Willard Melton, made “verbal advances” towards her, including comments about dreams he was having about her, her physical appearance, and questions about her makeup and hair. Over time, these advances escalated to professions of love, statements about his constant need for sex, and whispers in her ear that he could not stop thinking about her. He also allegedly would rub up against her and crawl under her desk. After Retuerto reached her limit, she quit and sued for sexual harassment.

In Retuerto v. Berea Moving & Storage, the Ohio appellate court had little trouble concluding that the trial court overstepped by dismissing Retuerto’s sexual harassment claim. Of particular note is the court’s comments about the company’s lack of prompt corrective action after it learned of the harassment.

At the time Retuerto reported Melton’s behavior to her supervisor [Hawthorn] in 2010, Retuerto had not yet received an employee handbook or attended sexual harassment training. After her initial complaint to Hawthorn, Hawthorn spoke to Melton and Melton apologized to Retuerto. There is no evidence that any disciplinary action was taken against Melton. After Retuerto made additional claims in 2012, there is no evidence that Berea Moving conducted an investigation into the matter or took any disciplinary action against Melton.… 

Retuerto also averred that Hawthorn had knowledge of Melton’s ongoing behavior. Hawthorn observed and heard some of Melton’s behavior and told Retuerto that Melton was going through a “mid-life crisis.”

Obviously, condoning acts of sexual harassment as a “mid-life crisis” is a horrible idea. So, that’s what you shouldn’t do in response to a harassment complaint. What should you do?

1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through. 

And, please, please, please, make sure that your employee handbooks have an anti-harassment policy, and that you are training your employees on it. 

Yes, GINA covers cheek swabs, even ones to uncover employee misconduct

I’ve always said that employment law is a dirty job, and this case more than proves my point.

Atlas Logistics Group, a Georgia food-storage company, had a big problem. One of its employees began habitually defecating in its warehouse. (In case you’re curious, the scientific name for this disorder is voluntary encopresis, one who has control over when and where bowel movements occur and chooses to have them in inappropriate places.)

To solve its mystery, Atlas required its employees to submit to a cheek swab, after which a lab compared DNA samples from the employees’ swabs to DNA from the offending fecal matter. Two employees, Jack Lowe and Dennis Reynolds, whose DNA did not match, filed suit under the Genetic Information Nondiscrimination Act.

Last month, a federal court granted summary judgment in favor of the employees, concluding that 1) GINA unequivocally covers the DNA tests conducted on their cheek-swab samples, and 2) the employer violated the statute by requesting and collecting the employees’ genetic information.

With liability already established, earlier this month, the parties tried the employees’ damages claims. And, the jury came back with a big number — $2,225,000 — including $225,000 and $250,000 in compensatory damages for the two plaintiffs, and $1,750,000 in punitive damages.

To me, this employer’s actions are not all that outrageous or inappropriate. It asked employees who were in the area of the found feces to submit to swabs of their cheeks. It neither asked for stool samples or for them to bend over and cough. Could the employer have taken a less intrusive measure, like installing hidden cameras? Sure. But, it did what it thought was reasonable under the circumstances to catch its predator. Unfortunately, however, a DNA test is still a DNA test, which runs afoul of GINA.

While I’m not offended by these tests, the jury clearly was. Over $200,000 per employee in compensatory damages? For a q-tip in the mouth? And $1.75 million in punitive damages? Why was this jury so outraged? Because their sense of privacy was offended. While social media seems to be eroding the innate nature of what “privacy” means, this verdict tells us that medical and genetic information are different.

So, employers, tread lightly when dealing with your employees’ genetic information. One case does not make a trend, but $2,225,000 (albeit one that should be reduced to $600,000 per the civil-rights law’s damage caps) in enough to make any employer stand up and take notice that genetic information discrimination is here to stay.

Just because lone acts of harassment aren’t always actionable doesn’t mean you should ignore them

By now, you’ve likely heard of the furor over the Confederate flag following the horrific church massacre in Charleston, South Carolina. You haven’t? Well, watch this, from Last Week Tonight with John Oliver, and then let’s talk.

What are you to do if you have employees who like to display the Confederate flag at your workplace (think belt buckles, or do-rags, or maybe even small flags, or pictures thereof, in offices or cubicles)? Do you: a) permit it because solitary acts of harassment that are overtly severe or offensive likely are not actionable under Title VII; or b) prohibit it because it might make your African-American employees uncomfortable, or worse, offend them (heck, even South Carolina and Wal-Mart have relented on the issue)?
If we’re talking about a Confederate flag (or flags) as part of a deeper pattern of harassment, which includes other, more overt, acts, like nooses, monkeys, and racist language (like in this case), then it’s a no-brainer. You investigate, fire the offending employee(s), and institute some serious, heavy duty anti-harassment training. If you think you should do anything else, we need to have a serious talk.
But, if we’re talking just about a Confederate flag, without anything more, what are you to do? Ban, or not ban? 
I’m not suggesting you need a “no Confederate flag” policy, but, if you see, or learn of, an employee displaying this charged symbol, I suggest that you require its removal. You would not permit an employee to display a Nazi flag because of its very clear anti-Jewish meaning. For many African-Americans, the Confederate flag holds the same meaning. So, because you want a harmonious and inclusive workplace, you do the right thing, even if doing the wrong thing may not necessarily be illegal.

What’s next for Uber after independent-contractor loss?

In March, I reported on a lawsuit filed against Uber by a class of its drivers claiming that the taxi company mis-classified them as independent contractors. Apparently, that is not the only claim pending against Uber on this very issue. Earlier this month, a California Labor Commission hearing officer concluded that Uber had mis-classified one of its drivers. Uber has appealed the ruling. Frankly, I think Uber has a pretty good argument on appeal.

Here’s the full decision [pdf].

 
The hearing officer relied on the following factors to conclude that Uber’s drivers are employees, not independent contractors (with my critique in the parenthetical).

• Drivers must provide Uber their personal address, banking information, and social security number. (Doesn’t a company want contact info for anyone providing services for it, and doesn’t it need other information so it can pay its contractors?)
• Drivers cannot drive for Uber without a background check. (If a background check is the standard for an employee, then we might as well get rid of independent contractors all together.)
• Drivers must register their cars with Uber, which cannot be more than 10 years old (Cannot a company set reasonable standards for its contractors?)
• Uber monitors drivers’ ratings from passengers, and terminates the relationship if the rating falls below 4.6. (Contractors are not guaranteed contracts for life; if a contractor falls below certain standards, a company always has the right to terminate the relationship.)
• Uber requires drivers to use its app to drive, and they cannot drive without using it. (How is this different than a taxi company tracking its drivers via GPS and directing routes; if anything, Uber drivers have more independence because they can turn down the fare at any time.)
• Drivers are paid a set percentage of the total cost of each ride. (Isn’t this the hallmark of an independent contractor—pay by the job, not by the hour?)

Last week, I called for a “duck” test for independent contractors. Dear readers, Uber drivers absolutely look, swim, and quack like independent contractors. They control when and where they work; they are paid by the ride; they drive their own cars and are responsible for their own expenses; Uber does not supervise the drivers, but merely holds them to reasonable performance standards. If Uber’s drivers are employees, then what is left for independent contractors? Or, is this the beginning of the end of the ability of companies to use the services of contractors? 

WIRTW #371 (the “no more pencils…” edition)

I love school. I mean, I loved school when I was a student, but now that I work, and my wife works, I really love when my kids are in school. It means that I don’t have to expend any energy thinking about how they are going to spend their days. The bus picks them up and drops them off, period. Now that school’s out, however, we have to manage sitters and camps, and getting them to and from sitters and camps. So, we’ve spent the past two weeks dropping off and picking up at camp (which, for me, is 45 minutes from work, without traffic).

How do other employees, and their employers, cope with this seasonal time-management dance? Read “School’s Out!” Means More Free Time for Kids, But None for Working Parents. Here is Help for Employers Managing the Fallout. — via Employment Law Watch

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

Discrimination

• Rachel Dolezal (Spokane NAACP) and the Deep Circle of Self-ID in the Workplace — via The HR Capitalist, Kris Dunn
• Rachel Dolezal and the Quandary of “Perceived As” Discrimination — via Employment Discrimination Report 
• “Patience” is a great G N’ R song; not a reasonable accommodation under the ADA — via Eric Meyer’s The Employer Handbook Blog
• Revisiting Reasonable Accommodation Under the ADA — Being “Effective” — via Dan Schwartz’s Connecticut Employment Law Blog
• Harassment “must-have” no. 4: The Determination — via Robin Shea’s Employment & Labor Insider
• When hiring, never consider or mention military reserve obligations — via Business Management Daily
• Older workers are a bargain — via Ross Runkel Report

Social Media & Workplace Technology

• Clinton e-mail controversy highlights dangers of using personal online accounts for work — via Technology for HR
• Icing on the cake for Facebook privacy laws & the impact on your workplace — via Employment Law Worldview
• My Boss Questioned Me About Personal Texts — via Evil HR Lady, Suzanne Lucas
• Survey Reveals Social Media’s Biggest Workplace Problem — via Workplace Diva
• Workers in America have problems. Meet the technologies trying to solve them. — via Wonkblog

HR & Employee Relations

• Here Are The 50 Best States For Working Dads — via Workplace Diva
• Are We More Productive When We Have More Time Off? — via Harvard Business Review
• The most common—and bizarre—workplace productivity killers — via Ragan.com

Wage & Hour

• California regulators: Uber drivers are employees — via Walter Olson’s Overlawyered
• Summer Interns and The ACA — via Workplace Insights
• Is Your Company required to Pay You Overtime Compensation For After-Hours Smart-Phone Use? — via Overtime Lawyer Blog
• Surprise!! An OSHA Inspector Is At Your Door! — via The Emplawyerologist
• OSHA Compliance Officers Instructed to Collect Employer Data for Fair Pay and Safe Workplaces Executive Order — via OSHA Law Blog

Labor Relations

• NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity — via Management Memo
• NLRB Orders Reinstatement of Undocumented Workers Terminated in 2003 — via Matt Austin Labor Law
• NLRB Unwinding Temporary Employment Model — via Labor Relations Institute

Until next week…

Get in the zone … the no-blacks zone

Does Title VII permit an employer to staff its stores based on the racial composition of its customers? That’s the question at the heart of EEOC v. AutoZone, currently pending in federal court in Chicago.

In the lawsuit, the EEOC alleges that the auto-parts retailer transferred African-American employees to certain stores in the Chicago area based on its conception that its Hispanic customers preferred to interact with Hispanic employees.

According to Employment Law 360 [sub. req.], AutoZone claims that the EEOC cannot prove its claim because the transferees would have suffered no loss in pay, benefits, position, or responsibilities, and therefore suffered no adverse employment action under Title VII.

Meanwhile, the EEOC claims that this brand of segregation is the exact type of discrimination Title VII is supposed to prohibit: “Structuring a workforce or work assignments by race is at the core of what Title VII was enacted to combat. Autozone’s argument boils down to the proposition that an employer is free to segregate its workforce so long as it is careful to do so through lateral transfers. Title VII is not that narrow.”

It seems to me that even if the pay, benefits, etc. were exactly the same in both stores, we abolished “separate-but-equal” 61 years ago, and Title VII should not permit an employers to Plessy v. Ferguson its workforce for any reason.

For more on customer preference as discrimination, check out the following two posts from the archives:

• Customer preference does not protect employers from race discrimination claims 
• Customer preference and race discrimination—when the customer isn’t right

The “duck” test for independent contractors

Earlier this week, FedEx announced that it would pay an astounding $228 million to settle claims that it had misclassified drivers as independent contractors. This news comes on the heals on the Department of Labor’s announcement of pending guidance on independent contractor status.

Meanwhile, on the same day as the FedEx settlement, the Ohio Supreme Court issued its decision in State ex rel. WFAL Construction [pdf], which decided that under the facts presented, individuals working under a construction contract were “employees” for workers’ compensation purposes.

As a technical matter, in Ohio, R.C. 4123.01(A)(1)(c) lists 20 factors to determine whether a person is an “employee” for purposes of workers’ compensation; if 10 of those criteria are met, the worker is an employee. In WFAL Construction, the workers met the following 10 criteria:

1. The individuals were required to comply with instruction from either the owner or an onsite lead carpenter.
2. The services provided by these workers are integrated into the regular functioning of this employer as they do all of the work.
3. The named persons on the various timesheets and logs performed the work personally.
4. The individuals were paid by the employer.
5. Records that were available to the auditor showed that the same workers performed work repeatedly for the employer.
6. The individuals were paid for the specific number of hours worked on a weekly basis.
7. As the employer had a supervisor or foreman on the worksite if he was not present himself, the Committee finds that the order of work was determined by the employer.
8. Given the hourly payments, the workers would not realize a profit or loss as a result of the services provided.
9. The employer has the right to discharge any of these individuals.
10. There is no indication that any of the individuals would incur liability if the relationship ended.

Despite these specific criteria, I have reached the conclusion that the best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee. I know this isn’t clear guidance, but, much like how Justice Potter Stewart years ago famously defined obscenity, I think you know an employee when you see one. 

So, Department of Labor, bring on your guidance. I doubt it will be any clearer or more workable than my “duck” standard.

Legal marijuana remains off-limits in the workplace

It is likely that when Ohioans go the polls this November, we will have the opportunity to vote on whether to amend our state constitution to permit for the medicinal and recreational use of marijuana. Meanwhile, Cleveland.com reports that business groups are concerned over certain language in the proposed ballot measure, which, if passed, would require employers to accommodate their employees’ use of legally prescribed marijuana for medical purposes.

This language has employers questioning whether one could interpret the proposed amendment to mandate that employers permit certain employees to show up to work high, or, worse yet, use marijuana on-the-job.

To this end, business groups have been closely watching Coates v. Dish Network [pdf], a Colorado Supreme Court case asking whether an employer must accommodate an employee’s lawful use of marijuana under that state’s laws.

Thankfully, in a unanimous opinion, the Colorado Supreme Court held that the legality of marijuana under Colorado state law does not limit the right of an employer to otherwise regulate its use or effects in the workplace.

I have yet to read an opinion which suggests that legalized marijuana requires accommodation by employers for workplace use, even for medicinal purposes. Unless and until a court reaches that absurd conclusion, assume that employees have zero rights to show up to work high, even if personal off-duty marijuana use is legal under the law of your state, and even if the use is pursuant to a valid prescription to treat a medical condition.

Why don't discrimination laws protect everyone from abuse?

The Huffington Post asks the following question:

Laws Protect Certain Classes from Workplace Abuse: Why Not Everyone?

It’s a valid question. The law only protects an employee from being treated poorly at work if he or she happens to fall into a legally protected category, which, on the federal level, includes race, sex, religion, national origin, age, disability, genetic information, and military status. Depending in what state one happens to work, these classes might expand to include sexual orientation, gender identity, or marital status.

The article goes on to argue that “federal and state employment laws should be developed to protect all … from workplace bullying and companies from allegations of unfair treatment via clearly defined expectations for acceptable standards of behavior.”

Here’s the problem with this argument. You can’t legislate being an asshole. The world is full of them, and no set of laws, rules, or regulation will stop this mis-behavior. All it will do is either create an environment in which it is too expensive for employers to employ anyone because of the increased risk and attendant costs associates with firing anyone, or create an environment in which an employer fears managing anyone because of risk that the managed employee will cry “bully” and sue.

Yet, there is a tremendous amount of sex appeal behind the idea of anti-bullying laws. I believe, especially in the politically correct culture in which we currently live and work, that anti-bullying workplace laws are a likely inevitability. All it will take is one state to fall, and the rest will drop like dominoes. 

So, what is an employer to do? Shape up before a legislature requires it. Take a stand against bullies in your business. Treat all of your employees with the respect with which you would want to be treated if in their shoes. Hold your managers and supervisors accountable for any mis-treatment of employees, even if it falls outside one of the legally protected classes. Otherwise, the din of support for anti-bullying laws will grow into a roar that the government will not be able to ignore. While that would be good for my business, it most certainly would not be good for yours.

WIRTW #370 (the “I’m ready for my close-up”) edition

What are you doing at 8 pm tonight? I know what I’m doing. I’ll be watching Stossel on Fox Business Network. I was in New York on Tuesday taping a segment that airs on tonight’s show. Here’s the official description of my segment:

With politicians talking about job creation, you would hope government would make it easy to hire people. But the opposite is true. There are a thousand questions you may not ask when hiring someone… “how long have you been working?” or “how tall are you?” could get you into big trouble.

Pop some corn, or, if you’re out and about on a summer Friday eve, set your DVR, to get your seven-minute fix of Hyman on employment law.


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

Discrimination

• Post-trial maneuvering in a discrimination verdict — via Walter Olson’s Overlawyered
• “Must-haves” for your harassment investigation — via Robin Shea’s Employment & Labor Insider
• SCOTUS ruling on religious garb puts employers in a double bind — via HR Café
• Your employee has a fragrance allergy. What does the ADA require you to do? — via Eric Meyer’s The Employer Handbook Blog
• State of Ohio Jumps in and “Bans the Box” For All Civil Service Jobs — via TLNT

Social Media & Workplace Technology

• Keep God in Your Heart-and Off Your LinkedIn Profile — via Suzanne Lucas at Inc.com
• Zoo employee fired over “racist” social-media post — via wpxi.com

HR & Employee Relations

• OSHA and Workplace Violence — via The Emplawyerologist
• MOVE Act Introduced; Non-Compete Agreements Would Be Limited, if Passed — via Dan Schwartz’s Connecticut Employment Law Blog
• Enforcing a Noncompete Agreement Takes More Than Bluffing — via Michigan Employment Law Advisor
• Men Are Struggling With Work-Family Balance, Too — via Huffington Post
• Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review
• Online Background Check Disclosure Form Did Not Violate the FCRA — via Laconic Law Blog
• Employee Resigns: Walk Them Out the Door Or Let Them Work a Notice? — via Fistful of Talent
• 5 New Rules for the World of Work — via Blogging4Jobs

Wage & Hour

• SCOTUS takes another class action case — via Ross Runkel Report
• HR 101: Are You Classifying Your Independent Contractors Correctly? — via TLNT
• General Release May Not Preclude FLSA Claims Says Fifth Circuit — via The Wage and Hour Litigation Blog
• Five most targeted industries for government wage and hour audits — via California Employment Law Report
• Even for Hourly Workers, Calculating the “Regular Rate” Can Be Complex — via Wage & Hour Insights
• Intern Settlement Is a Blockbuster — via Minnesota Employment Law Report
• 3d Cir. Rules on FMLA Definition of Overnight Stay — via Delaware Employment Law Blog
• Court Imposes FMLA Catch-22 — via Donna Ballman’s Screw You Guys, I’m Going Home

Labor Relations

• How the NLRB’s “Quickie” Election Rule Is Impacting Workplace Elections — via TLNT
• “6th Circuit says Michigan tribe subject to federal labor laws” — via How Appealing
• English-Only Rules – A New Unfair Labor Practice — via Employment Essentials
• Hey NLRB: WTF? That Means “Why The Foolishness?” What Did You Think it Meant? — via The Employment Brief
• Why labor groups genuinely believe they can unionize McDonald’s one day — via Wonkblog

Beware the email chain of fools

A software engineer rejected for a job by GoDaddy is suing the company for discrimination. Why does he believe that the company discriminated against him? According to USA Today, he read it in the email chain included in his otherwise vanilla rejection email.

The e-mail…, which appears to be sent from a group titled the “GoDaddy Recruiting Team,” begins with a tame form letter, explaining that Connolly had not been selected for a job as a mobile IOS developer. But the note he said he saw below it in the e-mail chain packed an unusual punch.

It read, “about keith he’s great for the job in skills but he looks worse for wear do we really want an obeese (sic) christian? is that what our new image requires of us.”

Like many before it, GoDaddy says that either it was hacked or the email was fabricated. Some computer forensics will sort out the truth of that defense. If it turns out that the email is legit, GoDaddy might want to rethink its “we are not offering any kind of settlement or an apology” position.

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun. 

And, before my employee-advocate readers get all over my case for defending one’s right to discriminate merely by keeping silent, yes, in an ideal world no one would think this way. But, my job is to defend the companies that have the misfortune of employing those that do. If GoDaddy is wrong, and one of its recruiters did send that email, then it should stand by its pronouncement that it is “proud to be an Equal Opportunity Employer” and settle, period.

Racist comments as protected concerted activity (really!)

Racism at work cannot be tolerated, right? So here’s a quick quiz. Assume you hear a white employee yelling the following at black co-workers:

• “Hey, did you bring enough KFC for everyone?” and
• “I smell fried chicken and watermelon!”

Do you: a) fire the offending employee; or b) brush it off? 

I’m going to lay pretty decent odds that most of you opted for choice “a.” Would you believe, though, that according to one NLRB judge, the answer depends on whether the racist employee is walking a picket line.

In Cooper Tire & Rubber Co. (6/5/15) [pdf], Administrative Law Judge Randazzo concluded that, while clearly racist, offensive, and inappropriate, the employer violated the NLRA when it fired the offending employee because he made the remarks in the context of a strike and there were no corresponding threats of violence:

Runion’s “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.… The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.

Thus, an employee is justified, under the NLRA, to be as racist as he wants to be as long as: 1) the comments are made in the context of otherwise protected, concerted activity, and b) the comments are not accompanied by violence or overt threats of violence.

Although the breadth of the NLRB’s current iteration’s interpretation of “protected concerted activity” should surprise no one, I am stunned that this ALJ has gone this far. 

1. No employee should be subjected to this type of abuse, picket line or no picket line, and it is shameful that this type of misconduct is condoned.
2. Employers should not be forced into a Hobson’s Choice between the NLRA and Title VII. Retaining the offender may save the employer from liability under the NLRA, but it won’t do the employer any favors if the victim pushes the issue under Title VII.

If nothing else, this case is a scary reminder of how far the NLRB and its judges will go to fine protected concerted activity. Employers, you are warned/

DOL set to publish guidance on independent-contractor status

Later this morning, I’ll board a flight for New York City to tape a segment for John Stossel’s Fox News show, to air Friday at 8 pm on Fox Business. We’ll be discussing the over-complexity of labor and employment laws, and their over-regulation of American businesses.

I’m certain one topic to be covered is our wage-and-hour laws. Serendipitously, according to Employment Law 360 [subscription required], Department of Labor Wage and Hour Division administrator David Weil recently announced that he will shortly publish an “administrator interpretation” to clarify who qualifies as an independent contractor.

The distinction between employee and contractor continues to beguile employers, and is ripe for problems under both wage-and-hour laws (among other legal entanglements). Individuals continue to file multi-million dollar class-action lawsuits claiming mis-classification as contractors cost them years of unpaid overtime. And, courts continue to take a hard line against companies that try to skirt their legal responsibilities via these mis-classifications.

Is it too much to hope for a reasonable interpretation from administrator Weil that permits bona fide contractors to remain classified as such? He speaks of a "holistic," as opposed to "mechanical" approach, which "requires a careful consideration of the economic realities and multiple aspects of the relationship." Expect a fuzzy standard with lots of gray area, which will continue to cause employers fits. Or, in other words, expect the status quo to continue, with employers who classify all but the clearest of workers as employees taking a huge wage-and-hour gamble.

Defining the three-headed associational disability claim

You likely know that the ADA protects employees from discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” But did you know that the ADA has three different theories to define this associational disability?

1. Expense (the cost of insuring the associated disabled person under the employer’s health plan);
2. Disability by association (a fear by the employer that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have); and 
3. Distraction (the employee is inattentive at work because of the disability of the associated person).

In Williams v. Union Underwear Co., (6th Cir. 6/5/15) [pdf], the court rejected the plaintiff’s attempt to use each of these theories to challenge his termination after his wife was diagnosed with Wagner’s Vascular Disease, which weakened her immune system. Other than the coincidental timing between the the wife’s diagnosis and the alleged beginning of Williams’s adverse treatment at work, the court could not find any other evidence of disability discrimination. Absent something in addition to timing, the court could not conclude that Williams had presented sufficient evidence to get his discrimination claim to a jury.

We, as employers, often treat employee’s with family medical issues with kid gloves. We not only worry about potential liability under the ADA, but also the FMLA. Yet, these employees are not bulletproof. In Williams, the plaintiff had suffered years of marginal performance, and the employer had enough. Without something in addition to the mere fact that his wife suffered from a rare disease, this court was unsympathetic to his claim, which should provide hope to employers that want to hold all employees accountable to reasonable performance standards.

WIRTW #369 (the “see me, hear me”) edition

It’s been awhile since I’ve updated everyone on when and where you can hear me speak, and I’ve got a bunch coming up in the next few weeks. So, here you go:

• Later today, I’m presenting on managing generational issues in the workplace at the Lakeland Community College 8th Annual Small Business Symposium.
• On June 10, at 2 pm, I’m presenting a webinar on how to create a safer, OSHA-compliant workplace, for HRdirect.
• On June 16, at noon, I’m presenting a webinar on OSHA compliance and workplace safety, for the West LegalEdcenter.
• On June 17, at 1 pm, I’m part of a panel webinar on the NLRB’s new “quickie” election rules, for Strafford.

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

Discrimination

• Five harassment “must haves” for employers — via Robin Shea’s Employment & Labor Insider
• Caitlyn Jenner’s Unveil Forces the Discussion of Transgender at Work — via Blogging4Jobs
• Employer’s search for “devious defecator” backfires after suspects sue under genetic privacy law — via ABA Journal
• Is It OK To Ask An Older Job Candidate If She Can Handle Supervising Young People? — via Evil Skippy at Work
• New DOL rules could blacklist fed contractors — via Business Management Daily
• Allergic At Work Is Not Allergic To Work — via The Labor Dish
• This employer had a “no pregnancy in the workplace” policy. No, really. It did. — via Eric Meyer’s The Employer Handbook Blog
• Employee Stressed Out By Manager Is Not Disabled And May Be Terminated — via Employment Law Worldview
• Now you know: rent two not one units for employee lodging — via Overlawyered

Social Media & Workplace Technology

• Should Companies Be Giving Fitbits To Employees? — via Workplace Diva
• How Wearable Technology Will Affect the Workplace — via Employment Intelligence
• More Bosses Expected To Track Their Staff Through Wearables In The Next 5 Years — via Forbes
• The Inbox – Orwell’s Big Brother Has An App For That — via Suits by Suits
• Aspects of Private Social Media Groups May Be Protectable Under Illinois Trade Secret Law — via Trading Secrets

HR & Employee Relations

• Flexibility and Job Satisfaction: Are Employers Listening? — via Next Blog
• June 1, 2015, Hazardous Communication Requirements Now In Effect — via OSHA Law Blog
• Is Your Employee’s Injury Reportable Under OSHA? — via The Emplawyerologist
• Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review

Wage & Hour

• How Fowl! Is An Employee’s Text and His Girlfriend’s Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast… — via Jeff Nowak’s FMLA Insights
• Can An Employee Assert State Law Wage Claims Based on Alleged Wrongful Tax Withholding? — via Minnesota Employer
• Department of Labor Seeks Information about Employees’ Use of Smartphones — via Wage & Hour Insights 
• Survey Shows Corporate Counsel Especially Fear Class Actions: With Good Reason! — via Wage & Hour - Development & Highlights
• General Release Obtained By Defendant in Non-FLSA State Court Case Did Not Waive FLSA Claims — via Overtime Law Blog

Labor Relations

• NLRB Issues Charge Against Ikea — via Labor Relations Today
• NLRB Ambush Election Rules Upheld by Texas Federal Court — via Hunton Employment & Labor Law Perspectives™
• Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections — via Management Memo
• Federal Court affirms that federal contractors have to inform workers of unionization rights — via Mike Haberman’s Omega HR Solutions

Transgender rights take center stage

It’s been a big week for the rights of transgender Americans.

• Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.

• The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.

• OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.

While we wait for the law the catch up to society’s opinion on LGBT rights (i.e., same-sex marriage rights and official statutory extension of Title VII’s protections to LGBT employees), our federal agencies are doing the best they can to modernize these laws for us. If you are still discriminating against LGBT employees, it’s time to stop. You are officially behind the times. It was not that long ago that LGBT rights were a joke. Now, we are on the verge of a breakthrough. Are you going to ride the wave, or hold onto the jam of the door that Caitlyn Jenner just kicked down kicking and screaming. The choice, for now, is yours, unless you run afoul of the EEOC, OSHA, or a court, each of which is doing is best to do what Congress has, thus far, refused.

Did the 6th Circuit just guarantee jury trials in off-the-clock wage/hour cases?

One of the most difficult things to do is prove a negative. Yet, this is exactly the problem that employers face when defending wage and hour cases in which the employee alleges work performed off-the-clock. The employer says that the time clock defines the paid limits of the workday, while the employee says that s/he should be compensated for work performed outside the parameters of those clock-ins and clock-outs.

In Moran v. Al Basit LLC (6/1/15) [pdf], the 6th Circuit was faced with a simple question—does an employee need something other than his or her own testimony to establish an entitlement to unpaid compensation under the FLSA?

Sadly, the 6th Circuit ruled in the employee’s favor.

Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty-eight hours.… However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy.… It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.”

This ruling is scary, and has the potential to work extortionate results on employers. If all an employee has to do to establish a jury claim in an off-the-clock case is say, “The employer’s records are wrong; I worked these approximate hours on a weekly basis,” then it will be impossible for an employer to win summary judgment in any off-the-clock case.

Employers, the cost of defending wage-and-hour cases just went up, as did the risk for businesses. Even meticulous wage-and-hour records might not save you from a foggy memory of a disgruntled ex-employee.

#SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case

Yesterday, the United States Supreme Court ruled that an employer violates Title VII’s religious accommodation requirements if the need for an accommodation was a “motivating factor” in its decision, regardless of whether the employer had actual knowledge of the religious practice or its need to be accommodated.

The case, EEOC v. Abercrombie & Fitch Stores [pdf], is an unambiguous win for religious freedoms, while, at the same time, places an added burden on employers to make educated guesses about applicants’ and employees’ potential needs for workplace religious accommodations.

Abercrombie involved a conflict between a hijab-wearing Muslim job applicant and the employer’s “look policy.” The unusually terse seven-page opinion (of which only a little more than three was dedicated to actual legal analysis) focused on the difference between motive and knowledge in explaining its holding:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.…

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. 

So, if knowledge is irrelevant, what is an employer to when faced with one’s potential need for a religious accommodation? More the point, isn’t an employer faced with having to make educated guesses (based on stereotypes such as how one looks or what one wears) of the need for an accommodation? Title VII is supposed to eliminate stereotypes from the workplace, not premise the need for an accommodation on their use. And that’s my biggest critique of this opinion—it forces an employer into the unenviable position of applying stereotypes to make educated guesses.

Nevertheless, employers are stuck with the Abercrombie “motivating factor” rule as the rule for religious accommodations moving forward. Thus, let me offer a simple suggestion on how to address this issue in your workplace—talk it out. Consider using the following three-pronged approached to ACE religious-accommodation issues in your workplace.

• Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation. 

• Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.

• Educate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.

This decision is a potential game-changer for employers. Make sure you understand the implications of Abercrombie, so that you are as accommodating as the law requires.

Image courtesy of Jeffrey Weston’s Ape, Not Monkey
http://www.apenotmonkey.com/2012/04/09/religious-accommodation/

6th Circuit: reasonable belief about unlawful conduct enough for SOX retaliation

It’s hard to imagine that in the eight-plus years I’ve written this blog, there is any area of employment law that on which I have not yet touched—except, I think, the Sarbanes-Oxley Act. Today, that changes.

For the uninitiated, Sarbanes-Oxley (or SOX) is a federal statute, enacted in reaction to a several corporate and accounting scandals (think Enron), which establishes conduct standards for public company boards, management and public accounting firms.

In Rhinehimer v. U.S. Bancorp Investments, Inc. (6th Cir. 5/28/15) [pdf], the 6th Circuit addressed the standard for protected conduct under SOX’s anti-retaliation provisions. Does the plaintiff have to prove an underlying fraud, or it is sufficient for the plaintiff to have a reasonable belief that a fraud was committed?

The facts in Rhinehimer are not complicated. Prior to taking a disability leave, Rhinehimer, a certified financial planner, transferred some of the assets of a long-term, elderly client into low risk, conservative investments. While on leave, Rhinehimer’s assistant alerted him to the fact that a co-worker moved some of those assets into riskier investments. Believing those moves to be contrary to the client’s estate plan, Rhinehimer sent an email to his supervisor complaining about the transactions. Upon his return from leave, Rhinehimer was disciplined for his “unprofessional” email. That email spawned an investigation by FINRA. When Rhinehimer informed his employer that he had retained an attorney in response to the FINRA investigation, he was fired.

At issue on appeal was whether a plaintiff claiming retaliation under SOX must allege the specific elements of fraud relating to the underlying transaction, or if a reasonable, but mistaken, belief about the illegality of the underlying (mis)conduct will support the retaliation claim.

The 6th Circuit held for the more liberal proof standard.

Although it is true that Plaintiff had no specific knowledge of whether Harrigan had omitted or misrepresented material information in his communications with Purcell, much less any knowledge of whether Harrigan did so intentionally or with reckless disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about the trades were above board, courts universally recognize that [SOX] protects employees who reasonably but mistakenly believe that the conduct at issue constitutes a violation of relevant law.… 

The information that was available to Plaintiff was more than adequate to allow him reasonably to believe that the trades were the result of conduct constituting unsuitability fraud. When USBII retaliated against him for reporting that information, it therefore violated Sarbanes–Oxley’s whistleblower protections.  

If you are a publicly-trade company, employees who lodge complaint about financial improprieties or other financial issues require special treatment. If faced with one of these complaints, do not get hung up on the rightness or wrongness of the complaining employee’s belief about the illegal conduct, because, if you later fire that employee, it appears the reviewing court will not care. 

WIRTW #368 (the “let's go Cavs” edition)

It’s t-minus six days until championship fever sweeps the most victory-starved city in America. Let’s go Cavs!

A photo posted by Cleveland Cavaliers (@cavs) on May 27, 2015 at 12:02pm PDT

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

Discrimination

• Being “Qualified” Doesn’t Necessarily Mean Being Able to Perform “Essential Functions” of Job — via Dan Schwartz’s Connecticut Employment Law Blog
• Here’s Why Your Company Should Offer Paid Maternity Leave — via TLNT
• Private Employers Likely to Face Gender Identity Discrimination Claims as Federal Government Continues to Expand Title VII Protections to Transgender Employees — via Employer Defense Law Blog
• EEOC Will Now Process and Investigate Sexual Orientation, Transgender, and Gender Identity Claims — via Randy T. Enochs’s Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• Five Key Social Media Questions All Health Care Employers Should Consider: Question #3: How Do I Protect Patient Privacy On Social Media? — via netWORKed Lawyers
• Those without Facebook accounts need not apply. Well, maybe not in one state. — via Eric Meyer’s The Employer Handbook Blog
• Doing online “reputation management”? — via Walter Olson’s Overlawyered
• “Sixth Circuit creates circuit split on private search doctrine for computers” — via How Appealing
• What Companies Should Ask Before Embracing Wearables — via Harvard Business Review
• Cyber Insurance: Why you should require certain vendors to have it — via Privacy and Data Security Insight
• Don’t Tweet On Me! — via Employment Law Lookout
• Texting in the office: a problem, or just yet another distraction? — via Business Management Daily

HR & Employee Relations

• American Ninja Warrior – Lessons on Family, Life, & Work — via Rob Schwartz’s dadworking
• No Matter What Scrabble Says, Don’t Ever Use These 10 Words at Work — via Evil HR Lady, Suzanne Lucas
• Hilariously honest job posting admits the pay is ‘sh*t’ and the boss is a ‘d*ckhead’ — via Boy Genius Report
• The Pros and Cons of Mandatory Workplace Arbitration — via Abovethelaw.com
• Work/Life Balance and Lessons from Managing Two Careers — via YourHRGuy.com
• Millennials may not be the radicals you think — via Mike Haberman’s Omega HR Solutions
• Slowly but surely, workplace bullying laws are becoming a reality in the U.S. — via Minding the Workplace

Wage & Hour

• Wage and Hour Division Seeks Information on Smartphones’ Impact on Hours Worked — via The Wage and Hour Litigation Blog
• Wage-Hour Audits: Lessons Learned From Chipotle’s Heartburn — via The Wage and Hour Litigation Blog
• An Open Letter to the Department of Labor Concerning The Proposed Changes To Exemptions for White Collar Regulations — via Wage and Hour Law Update
• Third Circuit Defines “Overnight Stay” for FMLA — via Phil Miles’s Lawffice Space
• FMLA Leave: sometimes, it is about putting the pieces together — via Employer Law Report
• OSHA Publishes New Whistleblower Investigations Manual — via Employment Law Lookout
• OSHA Issues Spring Regulatory Agenda — via OSHA Law Blog
• The ACA Today: Where it Stands and How it Affects Employers — via ERC Insights Blog

Labor Relations

• General Counsel Responds to Labor Practitioners’ Questions — via Vorys on Labor
• Regional Directors Report Data on The NLRB’s Amended Election Rules After One Month – Court Challenges Continue — via Health Employment and Labor
• Video: What every new Wal-Mart employee hears about why unions are terrible — via Wonkblog
• Board Dismisses Six ULP Charges Against Am. Apparel — via Labor Relations Today
• Update: What Recent NLRB Activity Means for Employee Handbooks and Policies — via Intown Employer
• Is the NLRB is expanding its list of “inherently” concerted protected activities under Section 7? — via Employment Law Matters
• How We’re Voting on the Union, and Why — via Deadspin

A lesson on the importance of uniformity in performance standards

Under the ADA, and employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

What happens, however, when an employer holds a disabled employee to a higher performance standard than non-disabled counterparts? Consider Wolffram v. Sysco Cincinnati (S.D. Ohio 5/19/15).

The plaintiff in Wolffram was a diabetic, and, as a result, needed extra time for bathroom breaks during the work day. Those bathroom breaks caused Wolffram’s performance to suffer on Sysco’s electronic performance monitoring system. Because Wolffram consistently fell below the minimum performance requirements, Sysco ultimately terminated him. Nevertheless, he defeated Sysco’s summary judgment motion on his disability discrimination claim. How? Because he claimed that other non-disabled employees were given more slack on the performance standards, that other employees “cheated” the system but were not disciplined or terminated.

Employers, it’s okay to have performance standards. It’s even okay to require that each of your employees, disabled and non-disabled, meet those standards. When you start letting those standards slip, however, you become exposed to claims from disabled employees who cannot otherwise meet the requirements because of their disability. Yet another example of how the EEO laws require uniformity of application in your workplace.

“You’re late again!” “Talk to my lawyer.”

I’m timely to a fault. I hate being late, and go to great lengths to ensure that I am never tardy for anything. I think it’s annoying to those around me, or least those I live with. Just ask my kids.

Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.

Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.

Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.

Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.