A federal court judge has ordered a Philadelphia-area publishing company, American Future Systems, to pay its employees $1.75 million in unpaid wages. The company’s sin? It docked its employees for time spent going to the bathroom.
Eliminating barriers in recruitment and hiring is one of six national priorities identified by EEOC’s Strategic Enforcement Plan. Large national employers provide the EEOC with a soapbox to broadcast this agenda. Thus, a lawsuit filed by the agency against McDonald’s Corp. for its alleged refusal to interview a deaf job applicant is a perfect ADA-storm.
In Whole Foods Market [pdf], the NLRB held that the employer’s rules prohibiting employees’ use of recording devices in the workplace violated their rights to engage in protected concerted activity under the National Labor Relations Act.
The unlawful policies read as follows:
It is a violation of Whole Foods Market policy to record conversations, phone calls, images or company meetings with any recording device (including but not limited to a cellular telephone, PDA, digital recording device, digital camera, etc.) unless prior approval is received.…
In EEOC v. CVS Pharmacy, Inc., the EEOC challenged what I have previously described as several garden-variety, boilerplate provisions in a severance agreement. I’ve also previously predicted that a win for the EEOC in this case would be ruinous for employers.
My earliest cinematic memories involve Star Wars.Lyerly v. Southwest Airlines (S.D. Tex. 12/9/15) provides a textbook example of why we accommodate employees. This employer bent over backwards to accommodate an ill employee, and, as a result, had little difficulty in defeating her subsequent disability-discrimination lawsuit.
An employee was recently terminated because of this post on his personal Facebook page:
The Internet was invented in 1983. It’s taken me 32 years to figure out why. The Internet was invented so that someone could replace audio of Darth Vader with audio of Donald Trump in Star Wars clips.
Darth Trump wins the Internet.
Here’s the rest of what I read this week:
Yesterday, #ElderlyChristmasSongs trended on Twitter. Yes, it’s meant to be a joke, and, yes, some were even funny. Now here’s the part where I get to play Employment Law Scrooge.
On October 12, USC fired its head football coach, Steve Sarkisian. Yesterday, Sarkisian filed a 31-page, 14-count complaint in California state court challenging his termination. The crux of his claims? That USC violated state disability-discrimination laws by terminating him because of his disability and failing to accommodate his disability—alcoholism.
There is no doubt that the ADA protects alcoholism as a disability. The law, however, draws a line between protected addiction and unprotected on-the-job misconduct , even when the former causes the latter.
This case will test the limits of that line.
If you’ve been reading my blog for any length of time, what I am about to tell you should not come as a shock—I’m not a huge fan of the current iteration of the NLRB.
Yes, labor unions have a right to exist, and, yes, employees have the right to join them, and, yes, unions have the right to collectively bargain for wages, hours, and other terms and conditions of employment. When the NLRB operates correctly, it balances the rights of employers, unions, and employees to maintain industrial peace. Currently, the NLRB is not operating correctly.
My main critique of the NLRB is not with its handling of the 7% of the American workforce that is collectively bargained (although that has issues too), but instead with its handling of the other 93%. The NLRB has waged a war over the past five years on the issue of protected concerted activity, and nowhere do the NLRB’s opinion and my opinion differ more than over the issue of employee handbooks and workplace policies.
The holiday season is in full swing. Gifts are flying off the shelves, FedEx is delivering too many Amazon-logoed boxes to count, and lights, trees, and wreaths are everywhere.
What about the workplace? Can you legally decorate for the holidays at work? And, if you do, does the law require that you accommodate all religions in your holiday displays? The answer might surprise you.
Yesterday afternoon was the Fall Play-In at my daughter’s school. It’s essentially a music recital for the kids in grades K – 5 who take private music lessons. Amid a chorus of Christmas and classical pieces on the grand piano, Norah rocked The Who’s I Can See For Miles on her Fender, which she recently started learning. Like always she’s her own toughest critic. To me, and everyone else there, she sounded great.
Here’s the rest of what I read this week:
Today’s post was going to be about accommodating different holiday traditions at work, but that post will have to wait. Yesterday, San Bernardino happened.
It’s not right that we have to think about how to respond if an active shooter enters your workplace. It’s not right that the phrase active shooter is even part of our vocabulary. But, we do, and it is. And your business needs to know how to respond in the event this evil enters your business.
Thankfully, your friendly neighborhood Department of Homeland Security has put together a guide on how to respond to an active shooter [pdf].
Perhaps it’s a coincidence that the EEOC released guidance on the ADA’s protection of HIV-positive employees within two weeks of Charlie Sheen announcing his diagnosis. Or, perhaps the EEOC seized on an opportunity to spread awareness about an important issue.
Regardless, yesterday the EEOC published information on the legal rights of employees living with HIV.
Most importantly, employers need to understand that the the ADA makes no distinction between an employee who has asymptomatic HIV and one who suffers with the AIDS virus. An employer cannot discriminate against an employee because of one’s HIV status, and an employer must make reasonable accommodation, if necessary, to enable that employee to perform the essential functions of the job.
Two stories on Employment Law360 caught my attention: McDonald’s To Pay $1.5M To Settle Workers' Wage Suit and Wage Suits Hit Record High Amid Focus On Worker Rights.
First, McDonald’s Corp. agreed to pay $1.5 million to settle a lawsuit claiming that it had failed to compensate a class of employees for time associated with cleaning work uniforms.
On the heels of that story, Employment Law360 reported that new federal-court wage-and-hour suits hit an all-time high in 2015, up 8% from 2014 (8,781 versus 8,160).
What does this mean for employers?
Yesterday I said that I’d be back next week, but then I checked the analytics for my site and noticed a huge spike for a post that digs deep into the archives: 8 things you need to know about holiday pay.
So, since tomorrow is Turkey Day, with most businesses closed, the magic of a quick cut-and-paste brings you everything you wanted to know about holiday pay for your employees.
For those of you who have Thursday and Friday off, enjoy your holiday weekend. Eat, drink, shop, be merry, and, most of all, enjoy your families and be thankful for all that you have.
Most people assume that the Rock & Roll Hall of Fame indicated seminal acts such as the Rolling Stones as part of the museum’s inaugural class. Those assumptions are wrong. The Stones did not earn their enshrinement until 1989, in the Hall’s fourth year.
I guess I’m the Rolling Stones of legal bloggers. Yesterday, the ABA Journal inducted me into its Blawg 100 Hall of Fame, in the fourth year the magazine has bestowed such an honor. It also marks my sixth consecutive (and last) honor in the Blawg 100. As a Hall of Famer, I’m required to stand aside for future Blawg 100 lists to make room for new blood.
The first six months of the NLRB’s ambush election rules have resulted in one expected result and one unexpected result.
On the expected front, the median time from the filing of a representation petition to the holding of an election has dropped nearly 40 percent, from 38 days to 23 days.
What is the unexpected result?
In my never-ending quest to turn my legal blog into a promotional blog for my daughter’s nascent music career, I bring you the debut performance of this year’s School of Rock Jr. Headliners — Sunday, December 6, from 4 to 8 pm, at Coda (a new, and supposed very cool, music venue owned by Cleveland chef and restaurateur Dante Boccuzzi).
For the uninitiated, the Jr. Headliners is SoR’s audition-only band for kids 8th grade and under (there is another Headliner band for high schoolers, which will also be on the bill). Norah earned her spot on her vocal chops.
Here’s a tease from the band’s “preview” performance at SoR’s annual Halloween bash — Jet’s Are You Gonna Be My Girl.
My standing offer is still good. If you’re at the gig, say hi, and mention the blog, your next drink of choice is on me.
Here’s the rest of what I read this week:
At the beginning of 2015, I reported on the launch of a new app — Memo — which allowed employees to post anonymous comments or complaints about their workplaces. Microsoft has now joined the fray of workplace griping apps with one of its own, called Forum.
According to the app’s description, it “lets ideas thrive, facilitates open dialogue within organizations, and enables employees to freely express themselves.” More importantly, unlike Memo, Forum appears to be non-anonymous. From iMore: “Forum has apparently been designed primarily for businesses to give their employees a chance to speak their minds and connect with their fellow workers and executives.”
Two and a half years ago I asked, How much does it cost to defend an employment lawsuit? My answer:
The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000.
Oh, how I love to be right.
On September 30, the Ohio House passed the Fair Hiring Act, which would prohibit the State of Ohio from including on any employment application for a state job any question concerning the criminal background of the applicant. The measure is now being considered by Ohio’s Senate, which is separately considering a different bill that would apply the same prohibition to all Ohio employers, public and private.  |
| Photo by Jon Hyman, 8/6/15 |
Have you ever played Cards Against Humanity? It’s a very adult version of Apples to Apples. I made the mistake of playing with my mom, and let’s just say that I learned some things that a child should never know about his mother, no matter their respective ages. Hilarious things, but, all things being equal, the laughs weren’t worth the memory scars.
HireVue, obvious fans of the game, came up with a fabulous promotional idea. They call it Cards Against HR, and my deck came in mail earlier this week. When I tweeted HireVue my love of its idea, they challenged me to post a picture of the best (or worst) hand I could come up with.
@jonhyman Show us the best (or worst) cards that you get! - Nicole
— HireVue (@hirevue) November 9, 2015 Well, HireVue, I am never one to shrink from a challenge.
Here’s the rest of what I read this week:
True confession time. I watch The Voice. It’s not like it’s at the top of my DVR, but, my remote always seem to stop on NBC between 8 and 10 on Monday and Tuesday nights. (My pick to win this season: Amy Vachal). So, when I heard that Team Shelton and Team Gwen had formed one team outside of work, I thought, “What a great opportunity to write a blog post on office romances.” (This is how the mind of blogger works).
What can do wrong with office romances? As it turns out, a lot. So, in the spirit of The Voice, here’s 10 reasons co-workers shouldn’t turn their chairs for each other.
Can a plaintiff support a collective lawsuit if some of the individuals in the purported class have not suffered any harm? The Supreme Court took up this question during yesterday’s oral argument in Tyson Foods v. Bouaphakeo, a case that will go a long way to deciding the continued viability of class or collective actions to decide wage and hour lawsuits.
The underlying legal issue is a familiar one: donning and doffing (that is, compensation for time spent putting on, and taking off, protective gear). This case also carries forward themes from 2011’s Wal-Mart Stores v. Dukes decision (which opined on the non-viability of a nationwide class action in which the class members lacked common harm), and last week’s Spokeo v. Robins oral argument (which will decide if a plaintiff has standing to bring a lawsuit for a technical violation of the Fair Credit Reporting Act if the individual suffered no resulting concrete harm).
So, what is Bouaphakeo all about?
Today, workers will protest in 270 different cities, clamoring for a higher $15 minimum wage. It’s part of a broader movement called Fight for 15. The organization has provided employees explicit instructions on how to execute a one-day strike, like those that will happen today.
By Mike Wise
Today, we are going to try something new — a guest post. Readers, meet Mike Wise. Mike will be joining us for a three-part series over the next three months to share his thoughts on the social business and human resources. Today is Part 1: Online Reputation Management in the Context of HR.
Today is National Love Your Lawyer Day (really). From the American Lawyers Public Image Association:
Around the world, Love Your Lawyer Day… is the one day of the year designated to celebrate lawyers…. Our goal is to highlight the good that lawyers do, often thanklessly….
Is it too much to ask for people to refrain from lawyer bashing and telling tasteless lawyer jokes for a single day? Surely you can do it. And, if for some reason, you're unable to tame your tongue for that 24-hour span (like if you're a late-night talk show host), then donate $20 to charity for every joke you tell. Deal?
This special day is not just about acknowledging and celebrating legal professionals. One of the initiatives for *Global* Lawyer Your Lawyer Day is to ask lawyers to either perform one hour of pro bono work or donate the equivalent of one billable hour to their favorite charity.
Do you love your lawyer—either me (hint, hint) or someone else? Show your love, in the comments below, or hit me on Twitter @jonhyman with #LoveYourLawyerDay. As for me, I’ll pick up my end of the bargain by donating my one hour of pro bono work.
Here’s the rest of what I read this week:
Today’s post originally appeared on Meyers Roman’s Ohio OSHA Law Blog, but it’s worth reprinting for my readers.
Have you subscribed to our new OSHA blog? If not, what are you waiting for?
Subscribe by email here, or by RSS here.
Earlier this week, President Obama signed into law the Bipartisan Budget Act of 2015. On its surface, it funds the federal government through 2017 and prevents any federal shutdowns during that time. Employers that read the fine-print, however, might be in for an OSHA-related shock.
Can an employer lawfully limit non-employees’ access to its facility? On its face, such a question might seem silly. After all, an employer should be able to control its property, right? What about access by union organizers? Does this wrinkle change the answer?
In Marina Del Rey Hosp. (10/22/15) [pdf], the National Labor Relations Board considered the following access policy:
Off-duty employees may access the Hospital only as expressly authorized by this policy. An off-duty employee is any employee who has completed or not yet commenced his/her shift.
An off-duty employee is not allowed to enter or re-enter the interior of the Hospital or any Hospital work area, except to visit a patient, receive medical treatment, or conduct hospital-related business. “Hospital related-business” is defined as the pursuit of an employee’s normal duties or duties as specifically directed by management.
An off-duty employee may have access to non-working, exterior areas of the Hospital, including exterior building entry and exit areas and parking lots.
Any employee who violates this Policy will be subject to disciplinary action up to and including termination.
Did it pass NLRB-muster?
Yesterday, the Supreme Court heard oral argument in Spokeo, Inc. v. Robins. This case should answer a very important question for employers: Does a plaintiff have standing to bring a lawsuit for a technical violation of the Fair Credit Reporting Act if the individual suffered no resulting concrete harm? The implications of this case are huge.
Last week, the EEOC announced that it plans to amend its regulations to the Genetic Information Nondiscrimination Act to permit employees to provide health information about their spouses in exchange for certain financial and other incentives as part of employer wellness programs.
Earlier this year, the EEOC published proposed ADA regulations, which would permit financial incentives for employee participation in employer wellness programs so long as they remain at or below 30% of the total cost of employee-only coverage. As long as financial incentive remains at or below the 30% threshold, the wellness program is considered a lawful, voluntary medical exam under the ADA.
I’ve decided that when I grow up, I want to be Norah. She has a pretty good life.
Guess who’s added “new guitar” to the top of her Christmas list?
Please check out the latest post on Meyers Roman’s new Ohio OSHA Law Blog — Federal court slaps down OSHA’s broad interpretation of its machine-guarding standard. And, while you’re there, take a minute to subscribe to receive updates via RSS or email.
Here’s the rest of what I read this week:
When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you?
(a) Ignore it.
(b) Confirm only the fact of prior employment and dates.
(c) Give a truthful, negative reference.
Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they fear liability if the ex-employee loses a job because of a negative reference. Yet, in Ohio and elsewhere, there is nothing illegal about providing truthful, negative information.
By now you’ve likely heard the story about the blind college student denied service by a Cleveland-area bakery because she was accompanied by her seeing-eye dog. Rather than vilify this establishment (which, god knows, has been done enough on Facebook, and Yelp, and just about everywhere else on the Internet), we should instead use this mistake as a teachable moment for all employers everywhere.
Earlier this year, the NLRB began accepting electronic signatures in support of an employee’s showing of interesting in support of a labor union. The Board has begun accepting e-signed documents, provided that they meet the following four criteria.
Does the National Labor Relations Act protect the mere act of an employee clicking the “Like” button on Facebook? According to Triple D, LLC v. NLRB (2nd Cir. 10/21/15) [pdf], the answer is yes.
If all of my musings of he past couple of year about the Old 97’s has piqued your interest, you can check them out in person, tomorrow (Saturday) night at the Beachland Ballroom.
If you’re there, look for my family and me up front, by the stage, singing and dancing the night away.
Here’s the rest of what I read this week:
The Browns still can’t beat the Broncos, and, it appears that Ohio’s proposed off-duty conduct law is a whole lot worse for employers than Colorado’s similar (but very different) statute.
I received an email from a long-standing reader, asking if I could reconcile my opinion that Ohio’s proposed off-duty conduct law would prohibit an Ohio employer from terminating an employee for off-duty marijuana use if Issue 3 [pdf] passes, with the decision of the Colorado Supreme Court in Coates v Dish Network [pdf], which held that Colorado’s off-duty conduct law did not prohibit such a termination despite that state’s legalization of pot.
It all comes down to statutory language.
Tomaydo-Tomahhdo is a local sandwich shop, and a purveyor of damn fine paninis and wraps. As for litigation, let’s say its lunches are way better. It sued one of its former chefs, claiming that he stole its book of recipes to open a competing catering business. Ultimately, the restaurant lost its lawsuit, which it had framed as a copyright infringement claim. The court concluded [pdf] that there is nothing original in a compilation of sandwich recipes that copyright law protects.
What could this employer have done differently to protect its intellectual property. It could have gotten in it in writing from the employee.
It has become increasingly difficult to separate our private lives from our professional lives. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer.
Ohio is not one of these 29 states. Senate Bill 180, however, is looking to change that.
Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace.
I’ve the reading the Onion for years. It’s consistently funny, often offensive, and seldom disappoints. Here’s some quick hits (all, surprisingly, SFW) published by the Onion over the past year.
Here’s the rest of what I read this week:
Think back to when you took your SATs, many years ago—number-2 pencils, plastic school chairs and laminate-topped desks, florescent lights, nervous sweat, and, the bane of many a high-schooler, the analogies that comprise so much of the SAT’s verbal section. Remember “dog : bark :: cat : meow”?
Today, I am going to propose an employment-law, wage-and-hour analogy. It goes like this:
Compensable working time : FLSA :: Disability : Pre-2009 ADA
What does this mean (and how dare I make you think about your SATs for the first time in forever)?
Everyone’s getting in on the act of defining who is an employee versus an independent contractor. This week, it’s the NLRB’s turn. In Sisters’ Camelot (9/25/15) [pdf], the Board determined that terminated pro-union community canvassers were employees covered by the NLRA, not independent contractors.
The employer, a nonprofit organization that collects and distributes food to low-income individuals, funds its operation primarily through donations obtained by canvassers through door-to-door solicitations. The canvassers, classified by the employer as independent contractors, attempted to organize into a labor union. When the employer found out, it terminated the services of one the ringleader, and suggested to others that organizing would be futile. Unfair labor practice charges followed.
The NLRB concluded that the canvassers are employees, not independent contractors. In so ruling, it balanced the following 11 factors:
The NLRB concluded that only two of the factors either favored independent-contractor status or were inconclusive on the issue—length of employment (which is sporadic and permits them to hold other jobs) and whether the parties believed they are creating an independent contractor relationship (with some testifying that they had signed independent-contractor agreements). The other nine, however, favored a finding of employee status:
Critically, when the canvassers work for the Respondent, they do so at times and locations determined by the Respondent. Their compensation is nonnegotiable and strictly limited by the Respondent’s time and location restrictions. Canvassers must generally use the Respondent’s tools and instrumentalities, including materials and transportation. They have no proprietary interest in any part of the canvassing operations, including their maps. They must keep accurate and detailed records as part of the Respondent’s close scrutiny of their activities. If they do not comply with the Respondent’s directives, they may be subject to discipline. Canvassers are also well integrated into the Respondent’s organization and identify themselves as part of it. The Respondent provides training, and canvassers need not have any specialized education or prior experience. While the Respondent conducts other fundraising activities beyond neighborhood canvassing, it could not fulfill its charitable mission without the canvassers, who procure most of its operating funds. Finally, there is no evidence showing that the canvassers render services as part of an independent business.
So, add labor organizing to the list of concerns employers need to have regarding independent-contractor classifications. It’s not enough to worry about whether they are employees for wage/hour purposes, workers’ comp purposes, or tax purposes, but also whether they are employees for union-organizing and other labor-relations (i.e., protected concerted activity) purposes. Even though this issue is now squarely in the NLRB’s line of sight, the suggestion on how to classify workers in close cases has not changed: unless one is clearly an independent contractor, over whom you exercise no control, the safest course of conduct is to classify that worker as an employee and not take any unnecessary legal risks.
Wired tells the story of an Australian tribunal, which ruled that an employee was illegally bullied at work, in part because a co-worker had unfriended her on Facebook.
Transfer this case to America, and assume that the employee is claiming retaliation based on the unfriending. Supposed Employee-A complains to HR that Employee-B is sexually harassing her, and, as soon as Employee-B finds out about the complaint, he unfriends Employee-A on Facebook. Does Employee-A have a claim for retaliation based on the unfriending?
The answer is likely no.
As a matter of law, an adverse action sufficient to support a claim for retaliation merely must be an action that would dissuade a reasonable worker from complaining about discrimination. Yet, the Supreme Court has stated that the adversity to support a claim for retaliation must be “material”, and that petty slights, minor annoyances, or a simple lack of good manners normally will not count:
We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….
A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.
Thus, an ostracism or shunning from a social network—one that serves no work-related purpose other than fostering congeniality among co-workers—likely should not support a claim for retaliation.
The ADA protects employees with disabilities? But what about its anti-retaliation provision? Does an employee have to be “disabled” under the ADA for the statute to protect that employee from retaliation? According to Hurtt v. International Services, Inc. (6th Cir. 9/14/15), the answer is no.
Hurtt worked at ISI as a senior business analyst, earning a yearly draw plus a percentage commission on sales. The day after he requested FMLA-leave for (job-related) anxiety and depression, ISI terminated his draw and switched him a commission-only comp plan. He sued, claiming, among other things retaliation for requesting various accommodations for his disability, including requests for a leave of absence and for a reduced work schedule.
The 6th Circuit reversed the trial court’s dismissal of Hurtt’s retaliation claim, holding that the mere act of requesting an accommodation is sufficient to raise the specter of retaliation, regardless of whether the employee is actually “disabled”:
We have held that requests for accommodation are protected acts…. Hurtt argues that he engaged in protected activity when he requested a reasonable accommodation and when he took FMLA leave…. But, the pertinent inquiry here is not whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable accommodations.
The takeaway here is more common sense than law. If Title VII can protect a white guy from retaliation when he complains that his black co-worker is being mistreated, the ADA certainly should protect an employee requesting a reasonable accommodation, whether or not a court determines after the fact that he is, or is not, legally “disabled”. Employees who request accommodations should always be treated with care; otherwise you risk stepping on a retaliation landmine.
Thanks to iOS 9, you now have a new way to read the Ohio Employer’s Law Blog. If you own an iPhone or iPad, and have upgraded to iOS 9, you have a new app called “News.” Within that News app, search for “Ohio Employer’s Law Blog” and you’ll be able to read all of my daily updates in Apple-land. As for me, I’ll be reading on my new iPhone 6S, which, barring a FedEx mix-up, should be delivered this afternoon.
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations