Retaliation alphabet-soup

Employers typically think of retaliation in terms of the big employment statutes: Title VII, the ADEA, the ADA, the FMLA, and the FLSA. Yet, there exist dozens of federal statutes that protect employees from retaliation in a variety of federally regulated industries.

Indeed, just yesterday, Cleveland.com reported that Abdul-Malik Ali, the former head of airfield maintenance at Cleveland Hopkins International Airport, filed a complaint with the Department of Labor against Hopkins and the City of Cleveland, alleging they unfairly demoted him for blowing the whistle on Hopkins for having fewer than the required number of workers on runways last winter.

Ali says that on Feb. 19, the day after he told FAA inspector Michael Stephens about  understaffing, he was removed from his 15-year post as manager of field maintenance by Airport Director Ricky Smith.

Ali said he was transferred to the job of “assistant to the deputy commissioner,” instructed to clear out his office, moved to what he called a “mop closet” behind the cab booking stand on the terminal baggage level at Hopkins and given “make-work” assignments such as counting trashcans.

If true, I’d say the airport has issues. It also makes me feel less that good about flights we took last winter.

Employers that operate in a federally regulated industry need to be aware of the alphabet-soup of statutes that could give rise to a potential retaliation or whistleblowing claim. Thankfully, the Department of Labor provides a list, handily collated at (where else?) http://www.whistleblowers.gov/:

• Affordable Care Act: Protects employees who report violations of any provision of title I of the ACA, including but not limited to discrimination based on an individual's receipt of health insurance subsidies, the denial of coverage based on a preexisting condition, or an insurer's failure to rebate a portion of an excess premium

• Asbestos Hazard Emergency Response Act: Protects employees who report violations of the law relating to asbestos in public or private non-profit elementary and secondary school systems

• Clean Air Act: Prohibits retaliation against any employee who reports violations regarding air emissions from area, stationary, and mobile sources

• Comprehensive Environmental Response Compensation and Liability Act: Prohibits retaliation against any employee who reports alleged violations relating to cleanup of hazardous waste sites, as well as accidents, spills, and other emergency releases of pollutants and contaminants

• Consumer Financial Protection Act: Employees are protected for blowing the whistle on reasonably perceived violations of any provision of the Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act or any other provision of law that is subject to the jurisdiction of the Bureau of Consumer Financial, Protection, or any rule, order, standard, or prohibition prescribed by the Bureau

• Consumer Product Safety Improvement Act: Protects employees of of consumer product manufacturers, importers, distributors, retailers, and private labelers who report to their employer, the federal government, or a state attorney general reasonably perceived violations of any statute or regulation within the jurisdiction of the Consumer Safety Product Safety Commission

• Energy Reorganization Act of 1974: Prohibits retaliation against any employee who reports violations or refuses to engage in violations of the ERA or the Atomic Energy Act. Protected employees include employees of operators, contractors and subcontractors of nuclear power plants licensed by the Nuclear Regulatory Commission, and employees of contractors working with the Department of Energy under a contract pursuant to the Atomic Energy Act

• FDA Food Safety Modernization Act: Protects employees of food manufacturers, distributors, packers, and transporters from reporting a violation of the Food, Drug, and Cosmetic Act, or a regulation promulgated under the Act, and employees who refuse to participate in a practice that violates the Act

• Federal Railroad Safety Act: Protects employees of railroad carriers and their contractors and subcontractors who report a hazardous safety or security condition, a violation of any federal law or regulation relating to railroad safety or security, or the abuse of public funds appropriated for railroad safety, in addition to employees who refuse to work when confronted by a hazardous safety or security condition

• Federal Water Pollution Control Act: Prohibits retaliation against any employee who reports alleged violations relating to discharge of pollutants into water

• International Safe Container Act: Protects employees involved in international shipping who report to the Coast Guard the existence of an unsafe intermodal cargo container or another violation of the Act

• Moving Ahead for Progress in the 21st Century Act: Prohibits retaliation by motor vehicle manufacturers, part suppliers, and dealerships against employees for providing information to the employer or the U.S. Department of Transportation about motor vehicle defects, noncompliance, or violations of the notification or reporting requirements enforced by the National Highway Traffic Safety Administration or for engaging in related protected activities

• National Transit Systems Security Act: Protects transit employees who report a hazardous safety or security condition, a violation of any federal law relating to public transportation agency safety, or the abuse of federal grants or other public funds appropriated for public transportation, and also protects public transit employees who refuse to work when confronted by a hazardous safety or security condition or refuse to violate a federal law related to public transportation safety

• Occupational Safety and Health Act of 1970: Protects employees who exercise a variety of rights guaranteed under the Act, such as filing a safety and health complaint with OSHA, participating in an inspection, etc.

• Pipeline Safety Improvement Act: Protects employees who report violations of federal laws related to pipeline safety and security or who refuse to violate such laws

• Safe Drinking Water Act: Prohibits retaliation against any employee who reports alleged violations relating to any waters actually or potentially designated for drinking

• Sarbanes-Oxley Act of 2002: Protects employees of certain companies who report alleged mail, wire, bank or securities fraud; violations of the SEC rules and regulations; or violation of federal laws related to fraud against shareholders. The Act covers employees of publicly traded companies and their subsidiaries, as well as employees of nationally-recognized statistical rating organizations

• Seaman’s Protection Act: Protects employees who report to the Coast Guard or another federal agency a violation of a maritime safety law or regulation, and also seamen who refuse to work when they reasonably believe an assigned task would result in serious injury or impairment of health to themselves, other seamen, or the public

• Solid Waste Disposal Act: Prohibits retaliation against any employee who reports alleged violations relating to the disposal of solid and hazardous waste (including medical waste) at active and future facilities

• Surface Mining Control and Reclamation Act: Protects truck drivers and other employees who refuse to violate regulations related to the safety of commercial motor vehicles or who report violations of those regulations

• Toxic Substances Control Act: Prohibits retaliation against any employee who reports alleged violations relating to industrial chemicals produced or imported into the United States

• Wendell H. Ford Aviation Investment and Reform Act of the 21st Century: Protects employees of air carriers and contractors and subcontractors of air carriers who, among other things, report violations of laws related to aviation safety

The unintended and unfortunate consequence of wage-and-hour reforms

Wage-and-hour reforms are all the rage. Yet, with reform comes a potential unforeseen price—businesses that simply cannot afford to stay in business.

From Re/Code:

Cleaning services company Homejoy is shutting down on July 31 after struggling to raise a big enough round of funding. The company had already been facing growth and revenue challenges, but CEO Adora Cheung said the “deciding factor” was the four lawsuits it was fighting over whether its workers should be classified as employees or contractors. None of them were class actions yet, but they made fundraising that much harder.

Re-classifying workers as employees instead of independent contractors, raising the salary threshold so that fewer employees qualify as exempt from overtime, and increasing the minimum wage are all popular causes for employee groups to rally behind. Yet, if these reforms leave employees without jobs, was the cause worth fighting? I bet if you ask Homejoy’s soon-to-be-ex-cleaners, each would tell you they’d prefer to be paid as a independent contractor than not paid at all.

Happy birthday ADA

Yesterday, the Americans with Disabilities Act turned 25 years old. We've come a long way in the past 25 years, from a statute intended to open employment access to those with disabilities, to decades of judicial decisions that effectively closed that access, to a revised statute that has swung the pendulum so far the other way that it is now hard to envision a medical condition not covered.

The ADA's workplace focus now squarely rests on the issue of accommodation. For this reason, the law's next 25 years will be greatly impacted by technology. As technology makes our lives easier, it makes employers' jobs in accommodating disabilities more complex. And, as technologies change over time, these issues will only become more complex. Biotechnology, for example, iillustration of this tension.

So, happy birthday, ADA.

WIRTW #376 (the “…I’ll only disappoint you…” edition)

I thought I’d try something different today by bringing you a musician I’ve recently discovered—Courtney Barnett.

She’s a guitar playing, Australian, singer-songwriter, whose songs mix crunchy, grungy guitar riffs with catchy lyrical turns of phrases about otherwise mundane topics of everyday life such as house hunting (DePreston) and organic foods (Dead Fox). Oh, and she absolutely rocks. Need proof? Here she is performing “Dead Fox” in Minneapolis / St. Paul last month.

And, here’s her full set from this year’s Bonnaroo, which I am told by those who saw it live that it stole the entire festival.

The death of rock music is great exaggerated; you just need to look a little harder for it these days.

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

Discrimination

• EEOC: Let Us Imagineer ENDA For You — via Cato Daily Podcast
• Are ride-hailing businesses Uber and Lyft ADA-compliant? Massachusetts AG has questions — via ABA Journal Daily News
• Working for you supervisor may be stressful but it is not a disability — via Mike Haberman’s Omega HR Solutions
• Why the EEOC’s rebuke of sexual-orientation bias may barely affect your workplace. — via Eric Meyer’s The Employer Handbook Blog
• 4th Cir. uses “hybrid” test for Title VII joint employer liability — via Phil Miles’s Lawffice Space
• Donald Trump will win (a Title VII lawsuit) — via EntertainHR
• 25 Years Later: Has ADA Helped Employees with Disabilities? — via Families and Work Institute Blog
• Don’t ignore these e-mails! EEOC ramps up digital charge system — via HR Hero Line
• Oy Vey! No Religious Discrimination in Jewish Nurse’s Termination — via Michigan Employment Law Advisor

Social Media & Workplace Technology

• Employees’ “low-tech” sloppiness causes high-tech problems — via Robin Shea’s Employment & Labor Insider
• Ten Top Ways To Stop Employees From Surfing The Internet — via Evil Skippy at Work
• Using Social Media Without Jeopardizing Your Career — via Harvard Business Review
• Five Technology, Media, and Telecommunications Developments Important to Employers — via Technology Company Counselor

HR & Employee Relations

• Overworked Employees Are Tearing Your Company Apart — via Blogging4Jobs
• Americans are the most pointlessly overworked people in the world — via The Week
• Congratulations, your 9-to-5 Job Is Officially 24/7 — via Workplace Diva
• Surveys Show Millennials Seeking Out-of-Office Options — via Workforce
• Look out, Generation Z is about to enter your workplace — via The Telegraph
• If You’re Pregnant, Make Sure Your Doctor’s Note Includes These Things — via Lifehacker
• Real Men Take Paternity Leave — via Fathers, Work and Family
• Fewer Employers Asking Candidates to Divulge Criminal History — via employeescreenIQ Blog

Wage & Hour

• Apple hit with class-action lawsuit over bag searches ordered on its store employees — via TiPb
• “Joy” is Lost, Others Are “Uber” Upset — via All in a Day’s Work
• Homejoy shuts down after battling worker classification lawsuits — via The Verge
• Obergefell v. Hodges — How Much Does It Really Change for Employers?? — via The Emplawyerologist
• Determining What is Considered a Serious Medical Health Condition — via ERC Insights Blog

Labor Relations

• If You Can’t Beat ‘Em, Join ‘Em: SEIU Befriending Franchisees — via Matt Austin Labor Law
• Calm Down: SCOTUS’s “Friedrichs” Case Won't Mean the End of the American Labor Movement — via Workplace Fairness

Does smoke always equal fire in harassment cases?

Consider the following, taken from Briggs v. University of Detroit-Mercy (E.D. Mich. 5/27/14), and then let’s talk.

Plaintiff Carlos Briggs, former assistant coach of the University of Detroit Mercy (UDM) men’s basketball team, complains that his former boss’s boss, UDM’s athletic director (Defendant Keri Gaither), accompanied the team on road trips to engage in a sexual relationship with one of Plaintiff’s fellow assistant coaches, and that consequently, Gaither granted preferential treatment to her paramour to Plaintiff’s detriment. She later admitted the relationship with the other assistant coach, and both were fired. Plaintiff alleges that the relationship created an openly sexually-charged atmosphere … thus creating a distasteful work environment. 

Plaintiff[’s] complaint suggests that his repeated exposure to such salacious and offensive conduct just must give rise to some type of Title VII discrimination charge—Plaintiff argues what amounts to “where there’s smoke there’s fire.” That argument turns out to be a fallacious one, however: affirming the consequent. Fire can indeed cause smoke, but sometimes there is nothing more than smoke, or it is from a different source. Here, the relationship between Gaither and Plaintiff’s co-assistant coach, Derek Thomas, may well have given rise to an unprofessional and unpleasant environment, but it does not give rise to a recognized cause of action.

I’ve been trying to think of the right way to approach the Bill Cosby case from a workplace perspective. To date, 47 women have accused Cosby of drugging and raping them. Cosby has largely remained silent on the issue, even in the wake of the recent publication of a decade-old deposition in which he admitted that he obtained drugs with the intent of giving them to women with whom he wanted to have sex.

The allegations against Cosby are too old for Cosby to face any civil or criminal liability. But, in the court of public opinion, he is guilty. There is simply too much smoke surrounding this fire for any rational person to reach any other conclusion.

What should you do in your workplace upon the receipt of a harassment complaint? Should you:

1. Take solace in the Briggs decision and fall back on a smoke-and-fire defense? 
2. Presume that smoke alwasys equals fire and act according? Or, 
3. Adopt a middle ground investigate-then-act approach? 

If you chose number 3, you chose wisely. Here is what you should 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.

It shouldn’t be newsworthy when a court applies “common sense” to resolve a dispute

I’d like to think that after 8-plus years of blogging, I’ve banked some capital as one who offers a common-sense approach to the often crazy world of labor and employment law. It’s refreshing to read a judicial opinion that toes the same line.

Southern New England Telephone Co. v. NLRB (D.C. Cir. 7/10/15) is an appeal of an NLRB decision that held that an employer unlawfully disciplined employees for wearing union-created t-shirts that read“Inmate #” and “Prisoner of AT$T”. The court concluded that the employer’s interest in protecting its public image and managing customer relations trumped any arguable section 7 rights enjoyed by the employees in the shirts.

Common sense sometimes matters in resolving legal disputes. This case is a good example. AT&T Connecticut banned employees who interact with customers or work in public — including employees who enter customers’ homes — from wearing union shirts that said “Inmate” on the front and “Prisoner of AT$T” on the back. Seems reasonable. No company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say “Inmate” and “Prisoner.” But the NLRB ruled in a 2-1 decision that AT&T committed an unfair labor practice by barring its employees from wearing those shirts. Section 7 of the National Labor Relations Act protects the right of employees to wear union apparel at work. But under this Court’s precedent and Board decisions, there is a “special circumstances” exception to that general rule: A company may lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image. Put simply, it was reasonable for AT&T to believe that the “Inmate/Prisoner” shirts may harm AT&T’s relationship with its customers or its public image. Therefore, AT&T lawfully prohibited its employees here from wearing the shirt.

Bravo D.C. Circuit. Here’s to more “common sense” approaches to labor and employment disputes.

Insubordination or protected conduct? 6th Circuit has the answer.

Is there a line that separates an employee’s insubordinate outburst from an expression of protected conduct? Yazdian v. ConMed Endoscopic Technologies, Inc. (6th Cir. 7/14/15) suggest that the answer may be “no”.

Reza Yazdian, a former territory manager for ConMed, believed that he was being singled out because of his national origin or religion. He chose, however, to express that belief to management in a less-than-professional manner, which included becoming combative during a disciplinary meeting.

The 6th Circuit concluded that it should be up to a jury to decide whether, despite Yazdian’s “combative” style, the company nevertheless terminated him because of his expression of protected conduct.

Yazdian cites as direct evidence of retaliation that Sweatt [his manager] specifically referenced Yazdian’s protected statements as examples of insubordination. When Sweatt provided ConMed with examples of Yazdian’s communication problems and “unwillingness to accept and apply constructive coaching,” Sweatt cited Yazdian’s hostile-work-environment and discrimination comments as examples. Sweatt described Yazdian’s claim that Sweatt was “creating a hostile working environment for [him],” as “unprofessional” and “totally unacceptable.” Sweatt cited the incident when Yazdian said to Sweatt, “I guess you don’t like my race either” as an example of Yazdian’s alleged “unwillingness to accept and apply constructive coaching.” And, crucially, Sweatt testified that he made the decision to fire Yazdian immediately after this phone call in which Yazdian said the following: (1) that Yazdian was going to file a lawsuit, (2) that Sweatt was creating a hostile work environment, and (3) that Yazdian would respond to the warning letter with charges.… [T]hese documents are direct evidence from which a reasonable jury could conclude that Sweatt believed Yazdian’s protected activity constituted insubordination, and therefore that Sweatt terminated Yazdian because of the protected statements that Yazdian had made.

Employee have a right to express protected conduct without reprisal, just as employers have the right to discipline or terminate insubordinate employees. When the expression of protected conduct swallows the alleged insubordination, you should expect most courts to do as the 6th Circuit did here, and side with the employee. Act accordingly, and be careful not to confuse protected expressions of opposition to alleged discriminatory employment practices with insubordination.

EEOC announces that Title VII treats all LGBT discrimination as unlawful sex discrimination

Last week, the EEOC released a historic decision on same-sex employment discrimination rights [pdf]. The EEOC confirmed that, in its opinion, Title VII expressly bars discrimination based on sexual orientation. When you couple this decision with an earlier 2012 decision on transgender workplace rights, the EEOC has done what Congress has thus far refused—to re-write Title VII to include express prohibitions against LGBT discrimination.

How does the EEOC reason that allegations of sexual-orientation discrimination necessarily state a claim of Title-VII-protected sex discrimination?

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Tide VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not…. [W]e conclude that sexual orientation is inherently a “sex-based ccmsideration” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII. A complaintant alleging that an agency took his or her sexual orientation into account in an employment action necessarily alleges that the agency took his or her sex into account….

Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex….

Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that his or her employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.

What does this mean? ENDA or no ENDA, the EEOC will accept charges alleging LGBT discrimination under Title VII’s sex-discrimination prohibition. Indeed, the agency accepted more than 1,000 of these charges last year alone.

While neither nor courts have approved this broad stroke, now is as good a time as any to consider updating to your employment policies to reflect this paradigm shift.

WIRTW #375 (the “post-it” edition)

Have you heard the one about the intern fired after hiding an offensive message for his employer buried within the stack of post-it notes he was sent out to purchase? 

Opposing Views has all the info.

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

Discrimination

• Workplace Impact of Same-Sex Marriage Supreme Court Decision — via Blogging4Jobs
• Obergefell Decision Impact on Employers — via In-house ACCess
• Federal Court Says Employer Can Be Liable for Acts of Anonymous Harasser — via Employment Matters Blog
• Hospital Settles ADA Suit Alleging It Withdrew Job Offer After Learning Applicant Had MS — via Joe’s HR and Benefits Blog
• Blatant Ageism — via Mike Haberman’s Omega HR Solutions
• Timing of Self-ID Usually Emerges As Ugly Issue as Companies Mature… — via The HR Capitalist, Kris Dunn

Social Media & Workplace Technology

• Facebook is Not Your Friend at Work — via Employment Discrimination Report
• Report: Bloggers Trusted More Than All But Family And Friends — via Above the Law

HR & Employee Relations

• Mistakes Employers Make When Conducting Background Checks — via TLNT
• The danger of a 24-hour workday — via Business Management Daily
• Post-Employment Covenants: Is an Inducement to Smile An Inducement to Cancel? — via Employment Matters Blog
• Conflating abuse and incivility in the academic workplace — via Minding the Workplace
• OSHA Extends Enforcement Date for Confined Spaces in Construction Standard — via OSHA Law Blog
• An Injured Employee Tests Positive for Drugs… Now What? — via GMS Blog
• Keeping up with Background Screening — via ERC Insights Blog

Wage & Hour

• No Vacation for Employment Law: New “Interpretation” for Independent Contractors Issued by USDOL — via Dan Schwartz’s Connecticut Employment Law Blog
• Welcome to the 1099 Economy — via Compensation Cafe
• Fedex Drivers In Kansas Are Employees Not Independent Contractors — via Wage & Hour Defense Institute
• Evaluating The Impact Of USDOL’s Salary Proposal — via Wage and Hour Laws Blog
• Will the new #overtime rules be good or bad? Here’s how to be heard. — via Eric Meyer’s The Employer Handbook Blog
• Just Say No To Overtime — via Next Blog
• How Obergefell v. Hodges Impacts Employee Leave Laws — via The Emplawyerologist
• Need To Investigate Employee Misconduct While the Employee is on FMLA Leave? Follow This Employer’s Lead — via Jeff Nowak’s FMLA Insights

Labor Relations

• Court of Appeals Reverses Board Decision Allowing Employees to Wear “Inmate,” “Prisoner” Shirts in Customer Homes — via Labor Relations Today
• Union Is the New Black: Labor Organizing in Orange Is the New Black, And What It Means For You — via Workplace Fairness
• AT&T’s “Prison” Break: “Inmate” Employees Lose NLRB Appeal — via All in a Day’s Work
• Photo ID Needed to Leave Union, Not to Vote for Union — via Matt Austin Labor Law
• Federal Judge Disregards NLRB’s Murphy Oil Holding and Dismisses Employees’ Wage/Hour Claims — via Management Memo
• Unions hit the gas: New ‘ambush’ rules cause spike in elections — via Business Management Daily

Who is an employee? DOL has answers in guidance on independent-contractor status

I’ve written a lot in the past year about the distinction between employees and independent contractors under federal wage-and-hour laws (here, here, here, and here).

To me, here is what it all boils down to (cribbed from my post, The “duck” test for independent contractors:

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 think you know an employee when you see one.

I’ve also cautioned that it is very difficult for an employer to justify the classification of a worker as an independent contractor, and that if you exercise any control over how workers perform services for you, it is likely that they should be classified as employees, not independent contractors.

Make no mistake, this issue is of vital importance, because the mis-classification of an employee as a contractor carries with it serious implication under the FLSA, the employment discrimination laws, ERISA, tax laws, and any other laws that regulate the relationship between employer and employee.

Yesterday, the Department of Labor’s Wage and Hour Division Administrator David Weil issued a crucial Administrator’s Interpretation on this issue. Entitled, “The Application of the Fair Labor Standards Act’s “Suffer or Permit” Standard in the Identification of Employees Who Are Misclassified as Independent Contractors,” the guidance clarifies the uphill battle employers face on this issue and asserts that “most workers are employees.”

In sum, most workers are employees under the FLSA’s broad definitions. The very broad definition of employment under the FLSA as “to suffer or permit to work” and the Act’s intended expansive coverage for workers must be considered when applying the economic realities factors to determine whether a worker is an employee or an independent contractor. The factors should not be analyzed mechanically or in a vacuum, and no single factor, including control, should be over-emphasized. Instead, each factor should be considered in light of the ultimate determination of whether the worker is really in business for him or herself (and thus is an independent contractor) or is economically dependent on the employer (and thus is its employee).

What should employers do in response to this guidance? At the end of the day, nothing different than that which I’ve been suggesting for the past few years—in all but the clearest of cases, assume that everyone you pay in exchange for services is an employee, and act accordingly. This issue is squarely on the the DOL’s radar, and employers who take unnecessary risks do so at their peril.

Recordkeeping policies: how long is too long?

Yesterday we examined a recordkeeping issue specific to potential adverse impact claims under Title VII. Today, I want to cast the net a little wider and look at how long you need to keep a variety of documents related to your employees.

A few important points:

1. This list is in no way meant to be exhaustive. It merely provides a snapshot of how long you need to keep some of your key documents.

2. Mileage will vary from state to state. For example, I suggest keeping certain records for 6 years because Ohio’s statute of limitation for statutory discrimination claims is six years. If your state has  shorter filing period, then some of your recordkeeping obligations may be shorter.

3. If you don’t have a document-retention policy, you should. If you don’t have a guideline for how long to keep certain documents, then your employees have no idea when to destroy. They may keep documents too long, or may destroy them too soon, each of which has potentially disastrous implications in litigation. If you hold too long, then you may have to produce documents that you should no longer have, and if you destroy too soon you may open yourself up to liability for spoliation (destruction) of evidence or other sanctions.

4. Check with employment counsel on numbers 1, 2, and 3. It’s bad idea to try to manage these issues without some legal input.

Without further delay, here’s the list:

Resumés, applications, and related employment materials, including interview records and notes	6 years from date of hiring decision for non-hires and from date of termination for employees
Background checks, drug test results, driving records, company employment verifications, letters of reference and related documents	6 years from date of hiring decision for non-hires and from date of termination for employees
I-9 Forms	The later of 3 years from date of hire or 1 year after termination of employment
Written contracts	8 years after expiration
Handbooks, and other policies or procedures	6 years after expiration
Collective bargaining agreements	6 years after expiration
Compensation and time records	3 years after termination
FMLA and USERRA and related leave records	3 years after termination
Performance appraisal and disciplinary action records	6 years after termination
Benefit records	6 years after filing date
OSHA and other employee safety records	5 years after termination
Workers’ compensation records	10 years after the later of the injury or illness or the close of the claim
EEO-1s	2 years after filing date
Affirmative Action Plans	2 years after close of AAP year
OSHA 300/300A	5 years after posting
ERISA 5500	6 years after filing

Are you up on your federal recordkeeping requirements?

The EEOC announced that is has sued a nationwide provider of janitorial and facilities management services for an alleged failure to maintain records or other information that will disclose the impact of its employee selection procedures on equal employment opportunities.

What is the EEOC talking about? According to certain federal regulations, an employer must maintain, and have available for inspection, records or other information that disclose the impact which the employer's tests and other selection procedures have upon sex, African-Americans, Native Americans, Asians, Hispanics, and Caucasians.

According to EEOC Regional Attorney Debra Lawrence, "Federal record-keeping requirements ensure that certain employers make and keep records that disclose the impact of their selection procedures. EEOC's enforcement of the record-keeping requirements is important to the agency's commitment to eliminating discriminatory barriers in the workplace."

So, if you use selection criteria or tests for hiring (criminal records, credit records, etc.), you must maintain those records for all applicants.

Tomorrow, I'll share some thoughts on the other records you should be keeping relating to your employees, and for how long you should be keeping them.

Everything you want to know about the new overtime rules in 3:44

You have to hand it to the Department of Labor. It has gotten creative to spread its message to American workers about the pending changes to the overtime rules.

Last week, the DOL published to its blog a short YouTube video entitled, White Board Explainer: What is overtime? It’s wage-and-hour Schoolhouse Rock, minus the catchy tunes.

Employers are fighting an uphill battle on this issue. A populist messsge that promises more pay for more people + a slick informational campaign = an issue that employers cannot win.

But, do employers want to win this issue? As I pointed out two weeks ago, as a practical matter employers can control whether these new overtime rules actually result in increased pay. Yet, fighting this issue will play into the hands of labor unions that they are needed to increase worker pay and to generally fight for their workplace rights. Employers need to be very wary of the unintended consequence of empowering unions, and act accordingly.

WIRTW #374 (the “bad choice” edition)

Earlier this week, I came across the following while watching the local morning news:

The consumer reporter was demoing an online t-shirt business with two female station employees modeling shirts that read,”I can make you feel cheep,” and “I can take 80% off.” While this demonstration in no way rises to the level of actionable harassment, you might want to rethink your workplace culture if putting female employees in clothes that talk about their promiscuity is part of it.

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

Discrimination

• 28 percent of whites say they favor a law allowing homeowners to discriminate — via Wonkblog
• What is Section 503 of the Rehabilitation Act and how could it affect your business? — via Blogging4Jobs
• The focus of the ADA turns to websites in the digital age: Is your site compliant? — via Employer Law Report
• Hey, remind me, what is associational discrimination again? — via Eric Meyer’s The Employer Handbook Blog
• Restricting Transgender’s Use of Restroom Found in Violation of Title VII — via Workplace Insights
• Google’s algorithms advertise higher paying jobs to more men than women — via The Verge
• EEOC’s revised pregnancy guidance: Now, just barely more flexible! — via Robin Shea’s Employment & Labor Insider
• EEOC: Employer Violated ADA By Not Hiring Applicant Because Her Child Had Disability — via Joe’s HR and Benefits Blog

HR & Employee Relations

• Your Employees Are Scared to Take Vacation. Fix That. — via Evil HR Lady, Suzanne Lucas
• Working on Vacation? — via Workplace Prof Blog
• No Fault Employment? — via Employment Matters Blog
• Working Dads and Parental Leave: My MSNBC Interview — via Fathers, Work and Family
• Avoiding the “Own Goal” at Work – Three Lessons from the Women’s World Cup — via EntertainHR
• Roundup on civility and incivility at work — via Minding the Workplace

Wage & Hour

• Obama unveils overtime regs — via Walter Olson’s Overlawyered
• Amid New Overtime Rules, More Employers Might Set Email Curfew — via Yugi Noguchi at NPR’s All Tech Considered
• Independent contractor versus employee: “Control” is the issue — via Mike Haberman’s Omega HR Solutions
• San Francisco Retail Workers Bill Of Rights — via Employer Defense Law Blog
• What are the “off-the-clock work” trouble spots? — via Business Management Daily
• Male Stripper Wage Law Update (SFW) — via All in a Day’s Work
• SCOTUS’ Gay Marriage Ruling and Its Impact on Employee Benefits — via The Emplawyerologist

Labor Relations

• Confidential Documents Properly Withheld From Union — via Employer’s Law Blog
• Teachers Say 17 Firings at Urban Prep Charter Schools Were Retaliation for Unionization — via Workplace Fairness
• Should I Let Employees Talk About Their Salaries? — via Evil Skippy at Work
• The Road Ahead: Top 10 Labor Issues to Watch in the Back Half of 2015 — via Labor Relations Today
• One more NLRB overruling is coming — via Ross Runkel Report

Don’t forget leaves of absence as ADA accommodation

Suppose an employee tells you that she needs time off to undergo surgery for her recently diagnosed breast cancer. Do you?

1. Deny the request (and fire the employee), either because you are too small to be FMLA-covered or the employee has not worked enough to be FMLA-eligible; or
2. Consider, and likely grant, the request as a reasonable accommodation under the ADA?

If you chose option one, congratulations, you just bought yourself an EEOC lawsuit.

The EEOC’s press release fills in the details.

Joan O’Donnell successfully performed her job duties as a regional manager at the company’s BWI Dunkin’ Donuts locations. After O’Donnell was diagnosed with breast cancer, she e-mailed the owner to explain that she was diagnosed with breast cancer and would need surgery. She also talked to her supervisor about her diagnosis and requested four to eight weeks of unpaid leave for surgery, chemotherapy, and radiation treatment. The EEOC charged that Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged O’Donnell because of her disability just three days before the start of her medical leave.

I’ve written before about the need to put the human back into human resources. The EEOC agrees with me: “Granting an employee unpaid leave for needed medical treatment is not only the compassionate thing to do, it is required by federal law unless the employer can show it would pose an undue hardship.” Case closed.

Be conscious of inequities when gauging litigation

Four years ago, in Wal-Mart v. Dukes, the U.S. Supreme Court held that it was inappropriate to certify a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide "policy" of sex discrimination. SCOTUS’s Dukes decision ended a decade of litigation over the propriety of the attempted nationwide class action.

More than a year after the Dukes decision, Cheryl Phipps, Bobbi Millner, and Shawn Gibbon launched a similar lawsuit in federal court in Tennessee, but instead seeking a region-wide sex-discrimination class. Wal-Mart alleged that the claims, more than a decade old, were time barred. Yesterday, in Phipps v. Wal-Mart Stores [pdf], the 6th Circuit formally disagreed.

For civil procedure geeks (like myself), the case is a fascinating read on the theory of statutes of limitations and equitable tolling. That analysis, however, is well beyond the scope of what I hope to accomplish with my little slice of the Internet.

Here’s the practical take-away. Employers favor certainty, knowing that if an employee fails to file a lawsuit 90 days after the EEOC issues its right-to-sue letter, for example, the employee waived the right to assert federal discrimination claims. Courts, however, favor equities, and try to avoid inequitable results. Sometimes, these ideals clash. When this happens, employers cannot assume victory, and should brace themselves accordingly.

Ohio’s odd anti-retaliation statute

Ohio’s employment discrimination law has lots of peculiarities that separate it from its federal counterpart—a six-year statute of limitations for all discrimination claims except age (which is only 6 months), individual liability for managers and supervisors, and the right for employees to file direct actions in court without first exhausting their administrative remedies, for example, stand out. Add to this list the fact that Ohio’s anti-retaliation statute is not limited to employers, but applies to anyone who retaliates:

It shall be an unlawful discriminatory practice for any person to discriminate in any manner against any other person because that person [1] has opposed any unlawful discriminatory practice defined in this section or [2] because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

In Wiltz v. Accountancy Board of Ohio, an Ohio appellate court held that a state licensing board could be liable for retaliation because of the broad definition of “person” in Ohio’s anti-retaliation statue. It was irrelevant that the defendant was not the “employer”.  So, businesses, beware and take heed. Just because you are not someone’s employer will not save you from a retaliation claim under Ohio law.

2nd Circuit becomes 2nd court to toss DOL internship test

Four years ago, the 6th Circuit, in Solis v. Laurelbook Sanitarium and School, rejected the Department of Labor’s six-factored test for determining whether an “intern” is an employee entitled to wages. In its place, the court adopted a “primary benefit” test.

At the time, the case did not garner that much attention. In the years since, however, the issue of unpaid interns has rocketed to the forefront of wage-and-hour issues on which employers need to focus. Last week, in Glatt v. Fox Searchlight Pictures [pdf], the 2nd Circuit become the 2nd federal appellate court to reject the Department of Labor’s formulaic six-factored analysis for the more flexible and nuanced primary-benefit test.

In reaching its decision, the 2nd Circuit framed the import of the issue:

When properly designed, unpaid internship programs can greatly benefit interns. For this reason, internships are widely supported by educators and by employers looking to hire well‐trained recent graduates. However, employers can also exploit unpaid interns by using their free labor without providing them with an appreciable benefit in education or experience.

Ultimately, the court sided with the employer in adopting the “primary benefit” test:

[T]he proper question is whether the intern or the employer is the primary beneficiary of the relationship. The primary beneficiary test has two salient features. First, it focuses on what the intern receives in exchange for his work.… Second, it also accords courts the flexibility to examine the economic reality as it exists between the intern and the employer.…

In the context of unpaid internships we think a non‐exhaustive set of considerations should include: 

     1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa. 

     2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands‐on training provided by educational institutions. 

     3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit. 

     4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar. 

     5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning. 

     6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern. 

     7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.…

The approach we adopt … reflects a central feature of the modern internship—the relationship between the internship and the intern’s formal education. The purpose of a bona‐fide internship is to integrate classroom learning with practical skill development in a real‐world setting…. By focusing on the educational aspects of the internship, our approach better reflects the role of internships in today’s economy than the DOL factors, which were derived from a 68‐year old Supreme Court decision that dealt with a single training course offered to prospective railroad brakemen

The court concluded that, in certifying a class of interns, the district court erred by applying the wrong standard (the DOL’s six factors). Thus, this decision does not mean that Fox Searchlight’s interns are not employees under the FLSA; instead, it simply means that the district court must re-evaluate its earlier decision on class certification using the primary-benefit test instead of the DOL’s six factors.

Thus, while this case is a win for employers, it does not mean that employers can rest easily on the issue of unpaid interns. Rather, it confirms that employers need to practice vigilance in classifying an entry-level worker as an unpaid intern or an employee. The focus remains on whether the “intern” is receiving training akin to, or as a part of, an academic program.

• If the “intern” is merely performing menial entry-level tasks without an attached educational component, the worker is almost certainly an employee that must be paid. 
• If the “intern” is working in exchange for course credit as part of a bona fide academic program, the worker is almost certainly an unpaid intern. 

The thornier question is how to classify one who is not working in exchange for academic credit, but is receiving bona fide training, in addition to making copies and Starbucks runs. For this clarity, we will need to wait for merits decision on this case and others. For now, however, the safer course of action is to err on the side of “employee” in all but the clearest of internships.

WIRTW #373 (the “happy birthday” edition)

Happy birthday Equal Employment Opportunity Commission. The EEOC turns 50 today. While the agency and I have not always seen eye-to-eye on how it enforces our nation’s civil rights laws, we do agree on why it was founded—because all people are created equal and should enjoy the right to an equal workplace. These past few weeks—with the mass shooting in an African-American church and hateful protests over LGBT rights—serve as a stark reminder that while we have traveled a long way in the past 50 years, we still have a long way to go to achieve true equality.

And now, a birthday song.

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

Discrimination

• Touching in the “Crotch Area” Only A Few Times Doesn’t Create a Hostile Work Environment — via The Employment Brief
• Fourth Circuit Affirms EEOC’s Resounding Summary Judgment Defeat in ADA Case — via Workplace Class Action Litigation
• That White Guy Lost — via Phil Miles’s Lawffice Space
• Transgender Experiences in the Workplace — via Workplace Prof Blog
• Update your job descriptions. Because, Americans with Disabilities Act. — via Eric Meyers Employer Handbook Blog
• Disparate-impact claims survive challenge: In Plain English — via SCOTUSblog

Social Media & Workplace Technology

• Google Is Sorry That Its New App Is Racist — via Boy Genius Report
• Mitigating Cyber Risks — via Technologist
• Guitar Center Employees May NOT Share “Very Negative” — via Gawker

HR & Employee Relations

• Neil deGrasse Tyson: Work and Life Don’t Always Have to Be Balanced — via Lifehacker
• Vacation Policy in Corporate America Is Broken — via Harvard Business Review
• Kinder, gentler Terminator: how to say ‘Hasta la vista’ to employees without getting sued — via EntertainHR
• Should We Tell Our Employee To Remove His Confederate Flag Bumper Sticker? — via Evil Skippy at Work
• Corporate Espionage: Not Your Typical Sports-“Gate” — via Trading Secrets

Wage, Hour, & Safety

• All the Best Uber Drivers I’ve Had Want to be Contractors, Not Employees — via The HR Capitalist, Kris Dunn
• Are Male Strippers Exempt From the FLSA As Creative Professionals? — via Minnesota Employer
• Cross-departmental work? Remember OT rules — via Business Management Daily
• How to make sense of Obama’s big changes to overtime policy — via Wonkblog
• Anatomy of an OSHA Inspection — via The Emplawyerologist
• OSHA launches its Hazard Identification Training Tool OSHA Law Blog

Labor Relations

• NLRB Reverses Longstanding Rule: Employers Now Required to Disclose Confidential Witness Statements in Investigations—a Major Change for Labor Arbitration? — via Management Memo
• NLRB Weakens Employers’ Ability to Conduct Effective Workplace Investigations — via Employment Law Worldview
• NLRB Flip Flops, Finds Employer Legally Terminated Employee for Dishonesty — via Labor Relations Today
• Ambush at the NLRB: Region 28's Average Election Time Now 18 Days — via Labor and Employment Law Cocktail

EEOC updates pregnancy discrimination guidance to embrace accommodations

In the wake of the Supreme Court’s decision in Young v. UPS, the EEOC has updated its administrative guidance on pregnancy discrimination. The updated guidance includes Enforcement Guidance on Pregnancy Discrimination And Related Issues, a Q&A, and a Fact Sheet for Small Businesses.

The most notable inclusion is updated guidance on an employer’s obligation to provide reasonable accommodation to a pregnant worker.
From the Q&A:

May an employer impose greater restrictions on pregnancy-related medical leave than on other medical leave? 

No. Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer:

• may not fire a pregnant employee for being absent if her absence is covered by the employer's sick leave policy;
• may not require employees limited by pregnancy or related medical conditions to first exhaust their sick leave before using other types of accrued leave if it does not impose the same requirements on employees who seek leave for other medical conditions;
• may not impose a shorter maximum period for pregnancy-related leave than for other types of medical or short-term disability leave; and
• must allow an employee who is temporarily disabled due to pregnancy to take leave without pay to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.

Must an employer provide a reasonable accommodation to a worker with a pregnancy- related impairment who requests one? 

Yes, if the accommodation is necessary because of a pregnancy-related impairment that substantially limits a major life activity. An employer may only deny a needed reasonable accommodation to an employee with a disability who has asked for one if it would result in an undue hardship. An undue hardship is defined as an action requiring significant difficulty or expense. 

Examples of reasonable accommodations that may be necessary for someone whose pregnancy-related impairment is a disability include:

• Redistributing marginal or nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform, or altering how an essential or marginal function is performed;
• Modifying workplace policies, such as allowing a pregnant worker more frequent breaks or allowing her to keep a water bottle at a workstation even though keeping drinks at workstations is generally prohibited;
• Modifying a work schedule so that someone who experiences severe morning sickness can arrive later than her usual start time and leave later to make up the time;
• Allowing a pregnant worker placed on bed rest to telework where feasible;
• Granting leave in addition to what an employer would normally provide under a sick leave policy;
• Purchasing or modifying equipment, such as a stool for a pregnant employee who needs to sit while performing job tasks typically performed while standing; and
• Temporarily reassigning an employee to a light duty position.

As the new guidance makes abundantly clear, while an employer cannot compel a pregnant employee to take an accommodation (such as a leave) if she is able to perform her job, it must allow women with physical limitations resulting from pregnancy to take leave (or other accommodations) on the same terms and conditions as others who are similar in their ability or inability to work. Thus, the EEOC has confirmed, as I’ve consistently said (here and here, for example), that if employers grant employees accommodations under the ADA, Title VII will almost certainly compel them to do the same for pregnant employees.

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.