Vaporizing employment laws? The results

On Monday, I asked my readers the same question posed by Walter Olson at Overlawyered: “If I could press a button and instantly vaporize one sector of employment law…”? The results are in, and the FLSA (my choice) and the FMLA are the clear winners.

Dan Schwartz, on his Connecticut Employment Law Blog, chose “leave” laws:

Right now, particularly in Connecticut, there are multiple laws an employer must consider when an employee is absent, particularly for an injury on the job. Among them: ADA, CFEPA (Connecticut’s version of the ADA), FMLA, CTFMLA (Connecticut’s version of the FMLA), Connecticut Workers Compensation laws, and Connecticut’s new Paid Sick Leave law…. Trying to figure those out shouldn’t take a law degree, and yet, they do.

On Twitter, Pat Richter agrees:

Suzanne Boy, at Southwest Florida HR Law & Solutions, agrees with me that the FLSA needs to go:

I despise the FLSA for my clients…. There are so many complicated requirements, classifications, exemptions, etc., employment lawyers can barely get them straight. How do you think that struggling small business owner down the street who is truly doing his best to do the right thing, but made a simple, honest mistake on record-keeping or classification or calculating overtime feels? Even when employers do everything right (which, because the law is so complicated and detailed, is admittedly rare), it’s too expensive to fight the case. It’s also too risky to fight it, since one tiny slip up could result in a large attorneys’ fee award for the plaintiff.

Tim Eavenson, at Current Employment, agrees with the choice of the FLSA:

By my count, the way Americans think of work has fundamentally shifted at least three times since I was born. The FLSA—a law whose sole purpose is to protect the American workforce—is almost 80 years old. That’s where all those byzantine regulations came from. Some really smart businessperson came up with a new way to interact with their employees, and the FLSA people had to figure out what the FLSA said about whatever that novel idea was. So they jury rigged the old law to fit the new system of work—cramming workers into classifications that didn’t really fit. Multiply that by every innovative workforce procedure for the past 80 years, and you can understand why employers feel so squeezed.

Agree? Disagree? Comment away.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Federal court takes EEOC to task for its work-life-balance agenda

In a 64-page opinion, a New York federal court issued a scathing indictment of the EEOC’s sue-first-ask-questions-later litigation tactics. In EEOC v. Bloomberg L.P., the agency accused the financial news giant of engaging in a pattern and practice of discriminating against pregnant women and mothers. The court strongly disagreed:

“J’accuse!” is not enough in court. Evidence is required.

The court also lobbed a grenade against those who pursue a work-life-balance agenda in the name of sex discrimination:

At bottom, the EEOC’s theory of this case is about so-called “work-life balance.” Absent evidence of a pattern of discriminatory conduct—i.e., a pattern that women or mothers were discriminated against because of their pregnancy as compared with others who worked similar schedules—the EEOC’s pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance…. The law does not mandate “work-life balance.” It does not require companies to ignore employees’ work-family tradeoffs—and they are tradeoffs—when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be “forward-thinking.” But they are not required by law. The law simply requires fair treatment of all employees. It requires holding employees to the same standards.

In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers…. Bloomberg’s standard operating procedure was to treat pregnant employees who took leave similarly to any employee who took significant time away from work for whatever reason. The law does not create liability for making that business decision.

In other words, family responsibility discrimination is only unlawful if it treats genders differently. It is not unlawfully discriminatory for a company to discriminate against those who chose family over their jobs, so long as men and women suffer the same consequences. The failure to provide what makes business-sense (promoting a family-friendly work environment) does not, in an of itself, equate to sex discrimination (despite what the EEOC may tell you).

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

NLRB releases report on social media cases

Are you curious about how the NLRB has been handling cases that involve allegations of employees disciplined or terminated for social media activities, or allegations of overly broad social media policies that could infringe on employees rights to engage in protected concerted activities? The NLRB hears your prayers.

I just received the following email from the NLRB:

Acting General Counsel releases report on social media cases

The National Labor Relations Board’s Acting General Counsel today released a report detailing the outcome of investigations into 14 cases [pdf] involving the use of social media and employers’ social and general media policies. In releasing the document, Acting General Counsel Lafe Solomon said, “I hope that this report will be of assistance to practitioners and human resource professionals.”

Each case was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC. In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected…. 

In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

Regardless of what you think about the NLRB’s policy positions, it is refreshing to see the agency taking such a proactive approach to informing the public on an ever-evolving, important, and confounding issue. Kudos to the NLRB (words I may never again write).

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Terminating a poor performer AFTER protected conduct? Read this post.

I’ve written before about the difficulty employers face when terminating an employee for performance problems after that employee engages in some protected activity. Because of the specter of a retaliation claim, employers often feel hamstrung, and seldom take the action necessary to rid themselves of a systemic problem employee. Galeski v. City of Dearborn (6th Cir. 8/16/11) [pdf] provides welcome relief to employers facing this dilemma.

Prior to the City’s termination of Daniel Galeski, he had a seven-year history of well-documented performance problems. Two months prior to his termination, Galeski complained that his male supervisor had been sexually harassing him. In the interim, Galeski’s performance problems continued, for which he received reprimands and written warnings. After he failed to improve, and despite his harassment complaint, the City terminated him.

The court agreed with the employer that Galeski’s long history of performance problems, many of which predated his harassment complaints, were fatal to his retaliation claim:

Galeski has a history of violating the City’s policies and being insubordinate…. [I]t appears that the issues that led to Galeski’s termination were inevitable once a more strict supervisor arrived at the Theater…. [H]is job was in danger regardless of his sexual harassment complaints. In light of his repeated issues with failing to wear his uniform and his reaction to his employer revoking his privilege to use the gym, there is no indication in the record that the City of Dearborn’s legitimate reasons for discharging Galeski were pretextual or otherwise invalid.

The lessons for employers?

1. Don’t wait to terminate. Galeski did not become an insubordinate employee overnight. His performance issues predated his termination by 7 years. Yet, a history of weak and non-confrontational supervisors refused to do anything about it. I’m not saying that you should fire an employee at the first sign of trouble, but there is a line between a fair warning and years of capitulation. The former will put you in good stead defending a lawsuit. The latter could result in a judge or a jury asking why you waited so long and looking for an illegitimate reason for the late-in-the-game termination. Just because this scenario worked out for the City of Dearborn does not mean that it will work out well for every employer in every case.

2. Document, document, document. There are few terminations that can survive scrutiny without proper documentation. Your odds as an employer go down exponentially if you pair a lack of documentation with a termination on the heels of protected activity. As the Galeski case illustrates, a poor performer is a poor performer, regardless of complaints about harassment or other protected conduct. Without a legitimate paper trail, however, you will find yourself without the ammunition to do anything about it.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Do we really need a breastfeeding discrimination law?

Yesterday, the Wall Street Journal Law Blog ran a post about a teacher fired from her job, allegedly because she spent too much time lactating for her newborn child.

Heather Burgbacher, a teacher at a charter school in Jefferson County, Colorado, has filed a complaint with the Equal Employment Opportunity Commission. She alleges that while she had received consistently positive workplace reviews for years the school this year failed to renew her contract because of conflicts over her breast pumping schedule.... The teacher last year had to miss class for about 20 minutes, three times a week, to pump, during which time her students did “supervised deskwork,” according to the statement.

No doubt, breastfeeding advocates will use this story as ammunition in their fight for the passage of the Breastfeeding Promotion Act of 2011. That bill would insert "lactation" into Title VII's definition of sex.

Unless I'm missing something, aren't women the only sex that can lactate? No men are being fired for taking too many milk-pumping breaks during the workday. Moreover, the law already protects lactation rights. Title VII prohibits discrimination because of pregnancy or pregnancy-related conditions. Unless there is some bizarro employer out there that does not permit employees to take short breaks during the day for any reason, any employer that punishes a woman for lactating already will be violating Title VII. Also, the the FLSA already requires that employers provide breastfeeding women reasonable break times to lactate.

Simply, the Breastfeeding Promotion Act is a redundancy with which we do not need to burden our already overly burdened businesses.

Employment Law Blog Carnival: The Kindergarten Edition

Today, my daughter started kindergarten. To commemorate this milestone, this month’s Employment Law Blog Carnival celebrates the synergy between the simple lessons we learn early in life and the places we work later in life (with apologies to Robert Fulghum).

All I Really Need To Know About Employment Law I Learned in Kindergarten:

Share everything.

• Interns & Volunteers: Do We Really Have to Pay Them? – from Washington Workplace Law

Play fair.

• The Sordid Tale of L.A. Noire—What’s a Tech Startup to Do? – from Tim Eavenson’s Current Employment

Don’t hit people.

• What Wisconsin’s Concealed Weapon Law Means for the Workplace and Employment Law – from Randy Enoch’s Wisconsin Employment & Labor Law Blog

Put things back where you found them.

• Top 10 mistakes in employment investigations – from California Workplace Law Blog

Clean up your own mess.

• 8 Reasons Social Media Policies Backfire – from Heather Bussing at HR Examiner

Don’t take things that aren’t yours.

• Agreements To Maintain Confidential Information – from Robert Fitzpatrick’s Fitzpatrick on Employment Law

Say you’re sorry when you hurt somebody.

• To guarantee an employment lawsuit, just follow these five “worst practices” – from Robin Shea’s Employment & Labor Insider

Wash your hands before you eat.

• You’re Damned if You Don’t … Avoid Hiring Rogue Employees – from Damnedif

Flush.

• Boss Boinking Coworker, Playing Favorites? Too Bad, Say Courts – from Donna Ballman’s Screw You Guys, I’m Going Home

Warm cookies and cold milk are good for you.

• FMLA and ADA meet again at the Serious Health Condition nexus – from Heather Traver’s Human Resource Updates

Live a balanced life—learn some and think some and draw and paint and sing and dance and play and work every day some.

• Pottymouths don't usually win sexual harassment lawsuits – from Eric Meyer’s The Employer Handbook

Take a nap every afternoon.

• Reporting Sex in the Supply Closet Not Protected Activity – from Philip Miles’s Lawffice Space

When you go out into the world, watch out for traffic, hold hands, and stick together.

• Get Ready: Uncle Sam Wants Employers to Lose More Union Elections – from Reid Kelly

Wonder. Remember the little seed in the Styrofoam cup: The roots go down and the plant goes up and nobody really knows how or why, but we are all like that.

• The Benefits, and Obligations, of Unlawful Harassment Training – from CPEhr’s Small Biz HR Blog

And then remember the Dick-and-Jane books and the first word you learned—the biggest word of all—LOOK.

• Employer “Look” Policies and Religious Discrimination – from iSight Blog

Everything you need to know is in there somewhere. The Golden Rule and love and basic sanitation. Ecology and politics and equality and sane living.

• Employment Law in 1 Word – from Mark Toth’s Manpower Employment Blawg

And it is still true, no matter how old you are—when you go out into the world, it is best to hold hands and stick together.

• The recent NLRB advice memoranda: much ado about what?? – from John Holmquist’s Michigan Employment Law Connection

Heather Bussing, at HRExaminer.com, will host next month’s Employment Law Blog Carnival, on September 21. If you want to participate, email her a link to your employment-law-related blog post by September 16. If you want to host a future edition of the Carnival, email its curator, Eric Meyer.Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with #190.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Controlling who is (and is not) “similarly situated” can control a discrimination case

One of the key analyses in any discrimination lawsuit is whether the plaintiff is “similarly situated” to those whom he or she claims the employer treated more favorably. If the plaintiff can establish disparate treatment of those “similarly situated,” he or she can make out a prima facie case and proceed to the bonus round, proving that the employer’s legitimate non-discriminatory reason was a pretext for discrimination. Conversely, a failure to prove “similarly situated” dooms a claim to the summary judgment scrapheap. Similarly situated, though, lies in the eyes of the beholder. How a court frames who is, and who is not, “similarly situated” often is dispositive of the issue of discrimination.

Consider, for example, Diaz v. Kraft Foods (7th Cir. 8/8/11). The trial court concluded that the plaintiff could not prove discrimination because of his race (Hispanic) because the employer ultimately filled the challenged position with another Hispanic. The appellate court, however, disagreed:

Title VII would have little force if an employer could defeat a claim of discrimination by treating a single member of the protected class in accordance with the law. Suppose the district court’s view carried the day: a female employee suffering from discrimination on the basis of her sex would have to establish that her employer discriminated against all women in the workplace to assert a sex discrimination claim. That, sensibly, is not how Title VII operates.…

[T]he employer cannot satisfy its burden by identifying a person within the protected class who was not similarly discriminated against.

What does this mean from a practical standpoint? If you are terminating, or taking another adverse action against, an employee, you need to analyze whether you’ve treated others outside the protected class better. If you merely analyze whether you’ve treat others inside the same protected class better, you risk a court concluding that your analysis is irrelevant. It’s an apples-to-oranges analysis, not an apples-to-apples analysis.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

“If I could press a button and instantly vaporize one sector of employment law?”

Today, I am empowering all of my readers with a superpower. As the saying goes, with great power comes great responsibility, so exercise this gift wisely and judiciously.

On Friday, Walter Olson, on Overlawyered, asked the following question, “If I could press a button and instantly vaporize one sector of employment law…”?

My answer—the Fair Labor Standards Act. The FLSA needs to go because compliance is impossible. Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

Readers, what employment law would you get rid of? Leave your thoughts in the comments, on Twitter, or on my Facebook Page. I’ll collate and publish them in a future post.

WIRTW #189 (the “amici” edition)

Last year, I was honored that the ABA chose to include me in its Blawg 100, the list of the top 100 legal blogs. This year, the ABA has again opened its nomination process to the public. From now until September 9, the ABA is accepting nominations via the submission of amici, or friend-of-the-blawg, briefs:

We’re working on our annual list of the 100 best legal blogs, and we'd like your advice on which blawgs you think we should include. Use the form below to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about…. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.

(Mom, Dad, and Wife, please don’t nominate me; it’s against the rules)

The ABA’s blawg directory lists thousands of legal blogs. If there are several that you enjoy reading on a regular basis, please take a few minutes to fill out an amici form and submit it to the ABA for consideration. My fellow blawgers and I appreciate it.

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

Discrimination

• Employer “Look” Policies and Religious Discrimination – from iSight Blog (featuring me)
• “Beanie Meanie” Lawsuit Dresses Down Religious Garb At Work – from Workplace Diva
• Religion in the Workplace: Avoiding Religious Discrimination Claims – from Michigan Employment Law Advisor
• Why Ban the Box Might Be Key to Allaying Discrimination Concerns – from Nick Fishman’s employeescreenIQ Blog
• Fact or Fiction: Retaliation requires job-related action (e.g., firing) – from Eric Meyer’s The Employer Handbook Blog
• 3rd Circuit: Performance Improvement Plan Not an Adverse Action – from Philip Miles’s Lawffice Space
• The Cat’s Paw Just Got a Little Smaller: New York Federal Court Limits Cat’s Paw Liability After Staub – from Employment Matters Blog
• Counter Lawsuits are not a Good Idea – from Tom Crane’s San Antonio Employment Law Blog
• Illegal drugs and the ADA: What does “current user” mean? – from HR Cafe

Social Media & Workplace Technology

• 50 Social Media Stats To Blow Your Mind – from Social Media Today
• To Tweet or Not To Tweet: Are Companies Allowing Employees to Use Social Media in the Workplace? – from Mindflash
• Twitter, Facebook And LinkedIn: Age, Ethnicity And Gender Of The Major Social Networks – from All Twitter
• Privacy is a Luxury You Don’t Have – from Harvard Business Review
• The Effect of Social Media on the Law – from Lawyerist
• A Majority of Those About to Enter the Workforce Would Rather Lose Their _____ Than Their Facebook – from Manpower Employment Blawg
• How Your Social Media History Could Hurt Your Job Hunt – from MonsterThinking
• The Rise of the Mobile Workforce – from Mashable
• The Secret Spy Living in Your iPhone – from The Fiscal Times

HR & Employee Relations

• 5 egregious errors that endanger employment investigations – from Robin Shea’s Employment and Labor Insider
• The Three Most Powerful Words in an Employment Investigation: “Tell Me About…” – from Minnesota Labor & Employment Law Blog
• Keeping up with the Law is Imperative to HR – from Kara Mignanelli at Social Axcess
• Want To Keep (And Motivate) Your Best Employees? It’s Not About The Money – from Fastcompany
• Discovery Requests Can Play Important Role In Determining Reasonableness of Non-Compete – from Legal Developments In Non-Competition Agreements
• Signs You’re About To Be Laid Off – from Consumerist
• How to Lay Off Staff? Don’t Listen to HR – from BNET

Wage & Hour

• The Myth of “Unauthorized” Overtime – from Wage & Hour Insights
• Overstaying Rest Breaks: Paid Time, Or Not? – from Wage and Hour Laws Blog
• Do We Have to Pay Employees for Checking Email Outside of Work? – from Wage & Hour Insights
• Life After Wal-Mart v. Dukes: Is the FMLA the New Breeding Ground for Class Actions? – from FMLA Insights
• Does “phone care” qualify for FMLA leave? – from Case In Point

Labor Relations

• NLRB and Facebook Firings: Employer’s Worst-Case Scenario – from Molly DiBianca’s Delaware Employment Law Blog
• The U.S. Chamber Of Commerce Echoes Many Of Our Sentiments – from Michael Schmidt’s Social Media Employment Law Blog
• Facebook Firings - Report Finds Dramatic Increase in NLRB Charge Filings Based on Facebook Retaliation Firings – from Chris McKinney’s Texas Employment Law Blog
• Social Media: NLRB Eyeing Employer Policies – from SmartHR
• The recent NLRB advice memoranda: much ado about what?? – from John Holmquist’s Michigan Employment Law Connection
• Chamber Survey Finds Social Media Policies, Firings Becoming NLRB Issues – from TLNT
• NLRB: No backpay remedy for undocumented immigrant workers – from LawMemo Employment Law Blog

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Is it discriminatory for a hospital to require the same-sex treatment of patients?

According to the EEOC, a Missouri hospital discriminated against its male nurses by preferring to have female nurses treat female patients. But, is this really unlawful sex discrimination?

A “bona fide occupational qualification” defense permits discrimination based on sex, age, religion, or national origin (but not race) where the protected class is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer’s business. One example of a BFOQ is a safety-based mandatory retirement age for airline pilots.

Is the sex of the person providing medical treatment another example of a BFOQ? Or, is this the type of sex-based stereotype that Title VII is supposed to eradicate? Or, does it depend on the type of treatment being provided? Readers, what do you think?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

How companies are using social media to hire

Are you curious how companies are using social media to screen and hire  employees? Mindflash shares the latest data (via Eve Tahmincioglu on Google+).

• 45% of employers use social sites to vet potential hires:
• 29% use Facebook
• 26% use LinkedIn
• 11% use blogs
• 7% use twitter
• 18% of employers discovered social content that influenced them to hire a candidate:
• 50% – personality
• 39% – verification of professional qualifications
• 38% – creativity
• 35% – good communication skills
• 33% – well-roundedness
• 19% – positive references
• 15% – awards and accolades
• 35% of employers discovered social content that caused them not to hire a candidate:
• 53% – provocative or inappropriate photos or other information
• 44% – content about alcohol or drug use
• 35% – bad-mouthing previous employers, co-workers, or clients
• 29% – poor communication skills
• 26% – discriminatory comments
• 24% – lies about qualifications
• 20% – confidential information about a prior employer

Do you want to know the legal risks that arise from using social media to vet job candidates, and the best practices to avoid these legal risks? Pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

If your workplace has “No bra Thursday,” it’s time for some harassment training

According to the Salt Lake Tribune, a Utah woman has sued her former employer, claiming she was sexually harassed at work. The allegations, according to her federal lawsuit, are outrageous:

• Her supervisor provided a written work schedule that included “Mini-skirt Monday,” “Tube-top Tuesday,” “Wet T-shirt Wednesday,” “No bra Thursday,” and “Bikini top Friday.”
• Her supervisor repeatedly asked “about her breast size and talked about her breasts in front of other employees.”
• He asked her to show him her breasts, and inquired about whether she shaved her pubic area.
• He slapped her on her buttocks at least twice.
• He repeatedly asked her for oral sex.
• He offered a free mammogram when she asked for time off for a doctor’s appointment.
• He told her he was installing a shower in the office so they could shower together.
• He offered a recipe for a “sex cake.”

He also allegedly told her that she’d be fired if she did not sign a document granting him permission to sexually harass her. You can toss all of the other facts out the window. If the plaintiff can produce a piece of paper in which the employer asked her to give up her rights to be free from harassment, this case is over. And, it will be over with a huge settlement to avoid the risk of a crippling award of punitive damages.

Do I need to even say that “No bra Thursdays” are a workplace no-no?

You can read the complete list of allegations in the complaint:

Anderson v. Lone Peak Controls

 

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Workplace social media becomes a federal issue, says U.S. Chamber survey

Last week, the U.S. Chamber of Commerce published the results of a comprehensive survey of the NLRB’s examination of workplace social media policies. In completing its Survey of Social Media Issues Before the NLRB [pdf], the U.S. Chamber examined 129 NLRB cases involving social media. Do not make the mistake of thinking that these issues only affect unionized businesses. As the Chamber made very clear, “a significant percentage of cases in our survey involved non-union employers with no union activity.”

The Chamber reached the following conclusions:

The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.

With respect to employer policies restricting employee use of social media, our review of cases found many specific policies alleged to be overbroad, including those that restrict discussion of wages, corrective actions and discharge of co-workers, employment investigations, and disparagement of the company or its management. The context in which the policy was adopted and even the issue of whether a rule or policy has been actually adopted are also important in these cases.

The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.

Despite the Chamber’s survey, this area of federal labor law—which affects every employer, unionized or not—remains very much unsettled. Today’s protected activity is tomorrow’s unprotected employee rant, and vice versa. In other words, taking action against employees for social media comments that discuss wages, benefits, or other terms or conditions of employment remains risky.

If you are interested in learning more about this important issue, the Chamber’s full report is available from its website. I also recommend the chapter written by Seth Borden for Think Before You Click: Strategies for Managing Social Media in the Workplace, in which he discusses these issues in great depth.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #188 (the “shill” edition)

I’m hosting the Employment Law Blog Carnival on August 17. If you would like your blog featured, email me the link by August 12. There are only two rules: the content must be employment-law-related, and the link must be to a post on your blog.

I’m also honored to be speaking on social media issues at some cool events over the next few months:

• On August 11, I am presenting Emerging Risks & Social Media for the New York chapter of the Institute of Internal Auditors.
• On September 15, I am co-presenting, with Mike Haberman, a webinar entitled Social Media for HR Pros for Business Management Daily.
• On November 17, I am presenting Think Before You Click: Practical & Legal Guidance to Effectively Manage Social Media in the Workplace, as part of GMSI’s 2011 HR & Employer Compliance Summit, a 3-day event in San Diego.

Of course, my book on social media and HR, Think Before You Click…, is still available now from Thompson Publishing.

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

Discrimination

• “Purple Pride” Overshadowed By “Wigger Day” – from Stephanie Thomas’s The Proactive Employer Blog
• Pottymouths don’t usually win sexual harassment lawsuits – from Eric Meyer’s The Employer Handbook Blog
• Gabby Giffords: Working with chronic illness – from CareerDiva, Eva Tahmincioglu
• Is it ok under the ADA and the GINA to offer wellness incentives? The EEOC explains it all for you – from Robin Shea’s Employment and Labor Insider
• GINA prohibits financial incentives as inducement to provide genetic information as part of employee wellness program – from Employment Law Matters
• EEOC sues predominantly African American hospital - for discriminating against black employees – from Developments in Employment Law
• Lillie Leon, 80-Year-Old Kindergarten Teacher, Sues City Over Firing From Public School – from CBS New York

Social Media & Workplace Technology

• How much time are your employees on Facebook? – from Rob Radcliff’s Smooth Transitions
• 76% of Businesses Use Social Media but Fewer than Half have Policies in Place – from Kara Mignanelli’s Social Axcess
• 45% of Employers [Still] Don’t Have a Social-Media Policy – from Molly DiBianca’s Delaware Employment Law Blog
• Google+: Five legal issues for businesses – from MacWorld
• The Internet Equalizer—The Smart Phone – from Jessica Miller-Merrell’s Blogging4jobs
• E-Discovery and Social Media in Workplace Investigations – from i-Sight Blog
• The Simple Way to Avoid Social Media Failures – from Harvard Business Review
• Think the iPad is big now? We’ve only just begun – from The Apple Blog
• Missouri Law Bans Social Media Contact Between Teachers and Students – from Bradley Shear’s Shear on Social Media Law
• Can my boss monitor my computer and then fire me for being unproductive? – from Ask a Manager

Employee Relations & HR

• Should You Care That Your Employees Are Going to a DayGlow Event? – from Dan Schwartz’s Connecticut Employment Law Blog
• Stupid HR: “Sorry It’s Not In the Policy Manual” – from Mike Haberman’s Omega HR Solutions
• Can They Really Say That? What Employers Can Say About You When Giving References – from Donna Ballman’s Screw You Guys, I’m Going Home
• Hotel Employee with Criminal Record Accused of Raping Guest – from Nick Fishman’s employeescreenIQ Blog
• Why Ex-Con Job Seekers Shouldn't Be Discriminated Against – from Time
• Why Should Employers be Fair? – from World of Work
• Employee Leaving? How About We Not Let Them Send an Email to Everyone? – from Lance Haun at TLNT
• From “Workplace Flexibility” to Smart Scheduling – from Work and Family Blog
• Physician Noncompetes: Part 1 Reasonable Limitations On Time And Geographic Scope – from Russell Cawyer’s Texas Employment Law Update
• Ohio Smoke-Free Workplace law is working – from Cincinnati.com
• More People Are Using Smartphones To Secretly Record Office Conversations – from Business Insider

Labor Relations

• Some Employees’ Online Rants Cross the Line: New Guidance From the NLRB – from Brian Wassom’s Augmented Legality
• When Can Employers Lawfully Fire an Employee for an Offensive Facebook Post? Ask the NLRB – from Workplace Privacy Counsel
• Facebook Firings: Feds, Managers Navigate “New Territory” In Employment – from the Huffington Post
• NLRB Creates Lead Technology Counsel Position – from Labor Relations Today
• The Lull Before The Storm: Blizzard Of NLRB Activity Coming – from Labor Relations Update
• NBA Files Suit And Charge Against Players Union – from Workplace Prof Blog

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Where does your state rank in discrimination filings? Ohio … we’re not so bad

According to Bloomberg Businessweek, 2010 was a banner year for workplace discrimination claims. Nationwide, there was a record 99,922 charges of discrimination filed. How does your state rank? Businessweek figured that out too. For example, my state, Ohio, ranks 10th, which is not all that bad given that Ohio is the 7th largest state by total population.

Here’s the list of top 20:

1. Texas (2nd largest state by total population)
2. California (1)
3. Florida (4)
4. Georgia (9)
5. Indiana (15)
6. Illinois (5)
7. Pennsylvania (6)
8. North Carolina (10)
9. Tennessee (17)
10. Ohio (7)
11. Alabama (23)
12. New York (3)
13. Michigan (8)
14. Colorado (22)
15. Virginia (12)
16. Arizona (16)
17. Missouri (18)
18. Mississippi (31)
19. Arkansas (32)
20. Washington (13)

Based on total population, Ohio does a little better than expected. New York and Washington do much better than expected. Indiana, Tennessee, Alabama, Colorado, Mississippi, and Arkansas do much worse than expected.

Just one more reason for companies to consider Ohio for their operations—you’re less likely to be sued here.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

6th Circuit strikes back against union’s self-help protest

When does a union protest turn from lawful, protected conduct to unlawful harassment? A case decided yesterday by the 6th Circuit provides some guidance.

Pulte Homes, Inc. v. Laborers’ International Union of N. Am. (6th Cir. 8/2/11) [pdf] starts out like any ordinary dispute between an employer and a union over the termination of a union-supporting employee. The union filed an unfair labor practice charge with the NLRB, claiming that Pulte fired the employee because he wore a pro-union shirt, and not because of the poor performance alleged by the company.

Not content with letting the NLRB process the termination, the union took matters into its own hands. It used a paid auto-dialing service to bombard Pulte’s sales offices and three of its executives with thousands of protest phone calls, jamming access to Pulte’s voicemail system and preventing its customers from reaching the company. It also urged its members, through a posting on its website, to “fight back” by sending emails to specific Pulte executives. The members’ compliance overloaded Pulte’s email system. Many of the communications included threats and obscene language. The “protest” resulted in Pulte temporarily shuttering its operations.

The 6th Circuit took issue with these tactics, and permitted Pulte to proceed with its claim against the union that the phone calls and emails constituted an unlawful “transmission” under the Computer Fraud and Abuse Act. The CFAA makes it unlawful to “knowingly cause the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.” The court concluded that the union’s onslaught of emails and voice mails, plausibly designed to disrupt Pulte’s business by bogging down its systems, met this definition.

What is the moral of this story, no matter the side of the table on which you sit? Courts hate self-help. If you have a legal remedy available, use it. Don’t take matters into your own hands. More often than not, you’ll be doing more harm than good.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Must employers pay unused vacation at termination? It depends.

One issue that often arises with employees is whether they should be paid out unused vacation pay at the end of employment. Because Ohio law considers vacation pay a deferred payment of an earned benefit, an employer generally cannot withhold accrued vacation pay at the end of employment (just like it cannot withhold wages from a final paycheck). Unlike wages, however, because this benefit is deferred, an employer can implement a policy under which an employee forfeits unused vacation days.

Thus, the rule for vacation pay is as follows:

• If an employer does not have a policy pursuant to which unused vacation time is forfeited, and if the employee has unused, accrued vacation time, he or she is entitled to be paid for that time.
• If, however, the employer has a clear written policy, set forth in a manual, handbook, or elsewhere, providing that paid vacation time is forfeited on resignation or discharge, an employer may withhold unused vacation pay.

Do you want to know what such a policy looks like? A recent Ohio appellate decision—Majecic v. Universal Devel. Mgmt. Corp. [pdf]—provides the following example:

Paid Time Off (PTO) includes sick, vacation, … and personal time off with pay…. Employees will be given PTO days after one year of employment…. All unused PTO will be forfeited upon an employee’s resignation or termination.

Two thoughts to leave you with:

1. Despite this recent judicial guidance, and as with all employment policies, it is best to check with your employment counsel before rolling out a vacation pay forfeiture policy to your employees.
2. Notwithstanding the ability to implement a vacation pay forfeiture policy, think about whether such a policy makes for sound HR practice, or whether it makes more sense to limit this policy only to “just cause” terminations, if at all.

Is that a hair in my chalupa? (or, Taco Bell and EEOC battle over religious accommodation)

A Nazarite is one who takes a biblical vow to refrain from wine, wine vinegar, grapes, raisins, intoxicating liquors, and vinegar distilled from such, refrain from cutting the hair on one’s head, and to avoid corpses and graves, even those of family members, and any structure which contains such.

History’s most famous Nazarite is Samson, who famously refused to cut his hair because it was the source of his strength. Its second most famous might be Christopher Abbey, on whose behalf the EEOC has filed a religious discrimination lawsuit against a North Carolina Taco Bell that fired Abbey after he refused to cut his hair. From the EEOC’s press release:

According to the EEOC’s lawsuit, Abbey is a practicing Nazirite who, in accordance with his religious beliefs, has not cut his hair since he was 15 years old. Abbey had worked at a Taco Bell restaurant owned by Family Foods in Fayetteville, N.C., since 2004. Sometime in April 2010, Family Foods informed Abbey, who was 25 at the time, that he had to cut his hair in order to comply with its grooming policy. When Abbey explained that he could not cut his hair because of his religion, the company told Abbey that unless he cut his hair, he could no longer continue to work at the restaurant.

Two questions immediately leap to mind:

1. What changed between 2004 and 2010, when the restaurant decided that Abbey could no longer work with long hair?
2. What was so burdensome about Abbey wearing a hair net?

Someday, employers will learn that sometimes it is easier to make a simple accommodation than to dig in their heal and fight.

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

WIRTW #187 (the “24” edition)

Willie Mays … Jack Bauer … Jon Hyman … what do we all have in common? The number 24. HR Examiner, one of the preeminent online magazines on HR issues, recently named me to its list of the top 25 digital influencers for human resources—number 24, to be exact. Please check out the entire list, which is chock-full of great HR bloggers and tweeters.

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

Discrimination

• What would Kenny Powers do? Interview questions to avoid – from The Employer Handbook Blog
• Sexual Harassment: You Knew or Should Have Known – from Michael Haberman’s Omega HR Solutions
• “Associational Disability Discrimination”—Yet Another Protected Category – from Labor & Employment Law Perspectives
• Non-impaired employee may be able to bring a claim under the ADA’s “associational disability” provision – from Employment Law Matters
• Wal-Mart Agrees to Give Women Extra Time to File Discrimination Lawsuits – from How Appealing
• Verizon Consent Decree Provides Road Map For Surviving EEOC Scrutiny of No Fault Attendance and Leave of Absence Policies – from Employer Law Report
• Two Recent Decisions Illuminate for Employers the Broad Contours of ADA Confidentiality vs. the Narrow Boundaries of HIPAA Privacy – from Workplace Privacy Counsel
• ADA And GINA: The EEOC Suggests That Additional Layers Of Privacy Protections For Employee Health Information May Be Necessary – from Hunton Employment & Labor Law Perspectives™
• Substance abuse and the ADA: Can too much caring get you in trouble? – from HR Cafe

Social Media & Workplace Technology

• Social Media: Used Not Just to “Friend”, but to Hire – from Smart HR Manager
• LinkedIn and Litigation – from Augmented Legality
• Twitter Fail and Compliance – from Compliance Building
• E-Monitoring in the Workplace: Do’s and Do Not’s – from Workplace Insights
• How much time are your employees on Facebook? from Rob Radcliff’s Smooth Transitions
• Monitoring Employee Communications Requires Up-to-Date Consent – from Labor & Employment Law Perspectives
• Computer Fraud and Abuse Act: A Criminal Statute That Extends to the Employment Relationship? – from Michigan Employment Law Advisor
• Employers Hunt Down Your Bachelor Party Pics on Facebook – from Evil HR Lady, Suzanne Lucas
• Google Plus for lawyers : First impressions – from Real Lawyers Have Blogs
• Social Media “Incidents” Costing Average Company $4 Million A Year – from Workplace Diva
• LinkedIn Launches “Apply With LinkedIn” Button – from Social Axcess

HR & Employee Relations

• Can you get fired for cursing at work? – from CNN
• Using Trickery and Deceit in Workplace Investigations – from iSight Blog
• How to Use Payroll Debit Cards to Pay Employees – from Virginia Employment Law Journal
• Criminal Histories and Employment Opportunities – from Stephanie Thomas’s The Proactive Employer Blog
• 21 Workplace Benefits That Are Rapidly Disappearing – from US News and World Report
• HR Mistakes in Mergers and Acquisitions – from TLNT
• What To Do When Angry Employees Leave – from Inc.

Labor Relations

• NLRB Division of Advice Provides Additional Guidance on Social Media Issues – from Seth Borden’s Labor Relations Today
• NLRB: Not All Employee Facebook Posts Deserve Protection After All – from Dan Schwartz’s Connecticut Employment Law Blog
• Ikea’s Virginia Manufacturing Plant Workers Vote for Union – from Bloomberg
• First Circuit Upholds NLRB’s Strike Against Compensation Confidentiality Policy – from Labor Relations Counsel
• NLRB Quickie Election Fact Check – from Labor Relations Institute

Wage & Hour

• U.S. DOL Seeks New Employment-Law-Related Apps – from Molly DiBianca’s Delaware Employment Law Blog
• Parental Bereavement Act Would Amend FMLA to Provide Leave Upon Death of a Child – from FMLA Insights

Trade Secrets & Competition

• Noncompete Defamation Leads to Six-Figure Verdict – from Philip Miles’s Lawffice Space
• Affidavits Not Enough to Obtain Injunctive Relief in Alleged Raiding Case – from Trading Secrets
• Court Enjoins Lawyer From Competing and Soliciting Clients of Former Law Firm – from Trade Secrets & Non-Compete Blog

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

Did you hear the one about the one-armed man who applied for a job with TSA?

Michael Costantino was born without a left hand. Should the Transportation Security Administration have hired him as an airport screener? Or, has it violated the ADA by refusing to hire him because of his missing hand? Eva Tahmincioglu reports the details at MSNBC.com:

After a physical examination by the agency, he got a notice stating he did not qualify for the position because of the “congenital loss of right hand.” …

But an official, who demanded anonymity, said the congressional act that created the TSA in 2001 “gave the agency the leeway to create its own physical qualifications for the Transportation Security Officer position, and potential employees have to meet certain physical standards to meet those qualifications.” The law requires that screeners “possess basic aptitudes and physical abilities, including color perception, visual and aural acuity, physical coordination, and motor skills.”

This case will hinge on whether Costantino could perform the essential functions of the transportation security officer position, including patting down passengers and checking luggage. As this recent case from the Northern District of Ohio makes clear, the ADA does not require an employer to restructure the essential duties functions of a job as a reasonable accommodation.

I would argue that moving passengers through the line as quickly and safely as possible is also an essential function of this position. It is probably safe to assume that Costantino could screen passengers and luggage one-handed, albeit more slowly. If his limitation would cause him to take longer to screen passengers and cause an unneeded back-up, would he be performing all of the job’s essential functions? Before you slam me for being insensitive, answer these questions honestly. Do you want to be in the unnecessarily long security line when you’re trying to catch your flight? Or, would you be murmuring under your breath for the line to move faster as your eyes dart between the line, your watch, and your boarding pass?

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Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.