Like most, I’m off today. The Department of Labor, though, never sleeps. It has an entire micro-site that celebrates today’s holiday:
Happy Labor Day. Enjoy your BBQs. I’ll be back tomorrow with a story on the treatment of pregnancy as a disability under the ADA.
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.
Bad puns aside, last weekend was not a good one for the Northeast. Other than an extended power outage, Irene’s worst spared my family in suburban Philly. Others were not so lucky. A Lesson In Social Media from Hurricane Irene, from Dan Schwartz’s Connecticut Employment Law Blog, is a must read for everyone.
As for other stuff to read this week, how about:
You don’t need to vote for me (although it would be nice) but you should vote. I think I can speak for all of my fellow bloggers when I say that we appreciate it.
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
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.
We spend a lot of time debating the respective merits of fine point of the law. The reality, however, is that judges are people too. Despite their training, robes, and gavels, the decision of many cases comes down to one key fundamental question: did one side treat the other side fairly? Courts don’t like litigants that try to pull a fast one.
Hergenreder v. Bickford Senior Living Group [pdf] provides a perfect example. It also illustrates why arbitration of employment disputes often is a losing battle.
Bickford filed a motion to compel Hergenreder to arbitrate her disability discrimination case under an arbitration clause buried in its employee handbook. Section 12 of the 16-section handbook—for which Hergenreder had signed an acknowledgment that she had read and understood its terms—provides as follows: “Dispute Resolution Process Please refer to the Eby Companies Dispute Resolution Procedure (DRP) for details.” The separate, 20-page DRP, in turn, required that employees submit all claims to arbitration. The employee testified that she never saw the DRP, let alone signed for it.
The court concluded that simple inclusion of a reference to the DRP in the handbook did not constitute a binding and enforceable contract between Hergenreder and Bickford to arbitrate all employment claims:
The best Bickford can say is that Hergenreder was informed that, for “Employee Actions,” she should “refer” to the DRP. In Bickford’s view, Hergenreder “was or should have been aware of the DRP and so is bound by it.” Yet she was not required to refer to the DRP; the “handbook does not constitute any contractual obligation on [Hergenreder’s] part nor on the part of Bickford Cottage[.]”
[T]here is no evidence that the DRP was “posted” in a place—either physical or electronic—available to Hergenreder, that there were meetings at which Hergenreder was notified of the policies, or that Hergenreder was aware of the DRP at all…. Bickford does not argue that it actually distributed or made the DRP available to Hergenreder.
Employers, if you are going to require employees to arbitrate their claims against you, do yourself a favor and at least have the employee sign a separate arbitration agreement. You might succeed on enforcing an alternative form of an alternative dispute resolution agreement (such as a handbook clause). But, you will spend the money you perceive you are saving through arbitration by trying to enforce your right to arbitrate.
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.
Generally, a union can become employees’ exclusive bargaining representative in one of two ways: a secret ballot election following a presentation of signed cards by more than 30% of the bargaining unit members, or a presentation of signed cards by more than 50%. An employer, however, does not have to recognize a union based solely on a majority of signed cards, and can require a secret-ballot vote overseen by the NLRB. Some card checks, however, are done by agreement whereby the employer recognizes the union upon the showing of a card majority and/or the employer remains neutral during the union’s organizational campaign.
In Dana Corp., decided in 2007, the NLRB established that employees always have a right to a secret ballot election. The Board held that when an employer voluntarily recognizes a union based on a card-check, the employer must post a notice of the recognition and of employees’ opportunity to file for an election to decertify the union or in support of a rival union within 45 days of the notice. If within that 45-day window 30% of the bargaining unit members produce evidence that they support decertification, the NLRB will hold a secret ballot election. The NLRB adopted this rule “to achieve a ‘finer balance’ of interests that better protects employees’ free choice.”
Yesterday, however, in Lamons Gasket Co. [pdf], the NLRB reversed Dana Corp. and did away with post-card-check decertification elections.
In reaching its conclusion, the majority relied upon statistical evidence of requests for Dana notices and resulting decertifications:The Board argued that Dana is unnecessary because employees successfully decertified the voluntarily recognized union in only 1.2% of the total cases in which Dana notices were requested. I look at the numbers differently. Dana is needed because 27% of cases in which elections were held resulted in decertifications. It is intellectually dishonest to draw conclusions from the 98.8% of cases in which no further action was taken and which we know nothing about.
I can also offer anecdotal evidence of the need for Dana. I was one of the successful Dana elections. In my case, the employees presented a nearly-unanimous showing of cards. After the Dana posting, 21 out of 33 employees signed a petition for a decertification election. The entire unit voted, resulting in decertification by a vote of 17-16. In other words, the card check did not accurately represent the employees’ free choice.
For this reason alone, Dana is an important rule that is needed to ensure that employees always have the opportunity to exercise and express their free choice about unionization through a secret ballot election. If we can use a Dana election to ensure that employees have the right to have their voices heard in a secret ballot election, what’s the harm?
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.
[B]eing attractive … helps you earn more money…. The effects are not small: one study showed that an American worker who was among the bottom one-seventh in looks, as assessed by randomly chosen observers, earned 10 to 15 percent less per year than a similar worker whose looks were assessed in the top one-third—a lifetime difference, in a typical case, of about $230,000.
How could we remedy this injustice? … A more radical solution may be needed: why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?The lawyer in me says, “Ca-ching!” The management advocate in me says, “Wait, what?!” The good-looking-but-won’t-stop-you-dead-in-your-tracks-good-looking-guy says, “This might make sense.” And the realist in me says, “Can you imagine a more subjective, unworkable standard for discrimination litigation?”
It’s no secret that I’m not a fan of arbitration of employment disputes. Conventional wisdom says that binding arbitration keeps down costs and speeds up resolutions. I’ve yet to be convinced. Many employers, though, continue to drink the arbitration Kool-Aid by requiring employees sign alternative dispute resolution agreements as part of their employment. Sherwin-Williams appears to be one of them. Its choice of one key word in its Problem Resolution Procedures, however, cost the paint company its chance to litigate an ex-employee’s age discrimination claim in its forum of choice.
The word at issue in Hyde v. Sherwin-Williams Co. (8/25/11) [pdf] is “may.” Sherwin-Williams’s Problem Resolution Procedures provide:
These procedures may be used by employees to challenge the unresolved differences regarding application of Company policies, procedures or practices which affect their employment situation. These procedures are intended to be an exclusive, final and binding method to resolve all covered claims to the fullest extent permitted by law. Failure to use these procedures may preclude employees from pursuing any other legal right they may have in court or in other forums.
An Ohio appellate court concluded that the use of the word “may” disposed of Sherwin-Williams’s attempt to force an ex-employee to litigate his age discrimination claim in court:
We find that Sherwin-Williams’ repeated representations that an employee’s failure to follow the PRP “may” preclude that employee from seeking redress in outside forums expressly contradicts appellants’ position that the procedures outlined in the PRP are the exclusive method for resolving employee disputes. By virtue of the language used … appellants implied that there would be circumstances where an employee would not be prevented from pursuing resolution of their legal claims in outside forums, i.e., that the PRP procedures are not mandatory, final, or binding.
What’s worse for Sherwin-Williams is that 8 years ago another panel of the same appellate court reached the same conclusion about the same language in a prior version of the same PRP.
What’s the takeaway from this case for employers? In drafting agreements and policies, words matter. If you mean “must,” say it. Don’t say “may” (especially when a court has already told you that “may” doesn’t pass muster).
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.
I love Twitter. Why, you ask? Because it routines scoops the major news outlets for breaking stories.
Tuesday was a perfect example. I felt my building shake at 1:51 pm. My first reaction was that The Avengers set a few blocks down the street had blown up something big, but the sway was too pronounced and too long to have resulted from a man-made Hollywood explosion. I immediately turned to Twitter, and confirmed what I had thought—it was an earthquake. With the click of mouse and the scroll of bar, I learned in an instant that my colleagues and friends all up and down the east coast had, to varying degrees, felt what I had felt. CNN had the story 10 minutes later, and Cleveland.com a few minutes after that. Who needs the news when you have Twitter?
And now for something completely different…
I’d be remiss if I didn’t remind everyone that nominations are still open for the ABA Blawg 100 (until Sept. 9), and the LexisNexis Top 25 Labor & Employment Law Blogs (until Sept. 12). Thanks to everyone who’s voted for me so far, or will vote over the next couple of weeks.
Here’s the rest of what I read this week.
Discrimination
Social Media & Workplace Technology
Employee Relations & HR
Labor Relations
Wage & Hour
Until next week:
(Network has aged extremely well. 1976 could easily be 2011. It was eerily prescient.)
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.
Here is what the NLRB wants employers to know about the mechanics of this new posting requirement:
Non-union employers, how do you feel about having to tell your employees that they have the right to form a union? That’s what I thought.
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.
In Jones, the employer argued that it could not be liable for an ADA violation by refusing to return an injured employee to work because it held an honest belief that an order of the workers’ compensation court prohibited the employee’s return. The Court disagreed:
Nissan’s defense … was based on the premise that Nissan imposed unsubstantiated medical restrictions on Jones because it believed the chancellor’s decision and order required it to do so…. In the instant case, however, notwithstanding Nissan’s arguments to the contrary, it is clear beyond peradventure that the chancellor’s order did not direct Nissan to restrict Jones from continuing in the trim-fit position he was performing at the time of the workers’ compensation trial. The order only directs Nissan to pay certain benefits…. Most glaringly, Nissan concluded that Jones was restricted from using “hand tools,” despite the fact that the chancellor did not make a single finding with regard to Jones’s ability to use hand tools in his job.
Courts give wide latitude to employers who make informed decisions based on all available facts and circumstances. As this case illustrates, employers who ignore the facts, or fail to make a thorough investigation to uncover all reasonably available facts, don’t fair so well. Strive to be the former; do not succumb to the ease of the latter.
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.
Suppose you apply for a job. The job has certain dress code requirements for all employees. You, however, think the mandatory clothing will look unflattering on your over-40-year-old body. Do you…
If you’re most people, you choose either of the first two options. If you’re attorney Roy Lester, however, you opt for number three.
When the New York Office of Parks, Recreation, and Historic Preservation refused to hire 58-year-old Lester as a lifeguard, he sued, claiming age discrimination. The lawyer-by-day claims that the job requirement that he wear certain swimwear discriminates against him because of his age. From CNN.com:
The rule, still in operation, requires that to be re-hired as a lifeguard, participants must wear either “boxers, briefs or board shorts” when completing a qualifying swim test…. Lester who believes that “as you age you should show less skin” prefers jammers; tight lycra shorts that end a couple of inches above the knee. The bankruptcy attorney claims “Speedos are not appropriate for a 61-year-old” and refused to wear loose-fitting shorts because they would slow him down.
According to the Wall Street Journal’s Law Blog, “Peter Brancato, spokesman for New York state’s Office of Parks, Recreation and Historic Preservation, [said] that there never was a policy specifically requiring lifeguards to wear Speedos. For the annual swim test, lifeguards are required to wear regular work gear, which for men could be a Speedo, a boxer-type swimsuit or a board suit.”
In other words, the employer subjected Lester to the same dress code as every other employee and applicant. Guess what? That’s not age discrimination, even according to the EEOC: “In general, an employer may establish a dress code which applies to all employees or employees within certain job categories.” Exceptions include dress codes that conflict with an employee’s religious practice or disability. The law makes no such exception, however, for an employee’s age.
(An appellate court just reinstated Lester’s claim, following a dismissal by the trial court. That fact does not make me think his claim is any less ridiculous).
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.
A Michigan federal judge has slammed the EEOC for its “reckless sue first, ask questions later strategy.” After 11 years of litigation, the court awarded the EEOC’s target, Cintas Corporation, $2,638,443.93 in attorneys’ fees, costs, and expenses from the agency.
The court justified its astronomical award based on the EEOC’s failure to investigate before filing suit, and dilatory tactics before and after filing suit:
- The EEOC did not investigate the specific allegations of any of the thirteen allegedly aggrieved persons until after the Serrano plaintiffs filed their initial complaint, and after it filed its own complaint years later.
- The EEOC did not engage in any conciliation measures as required by § 706 prior to filing suit on behalf of the named Plaintiffs.
- The EEOC did not identify any of the thirteen allegedly aggrieved persons as members of the “class” until after the EEOC filed its initial complaint.
- The EEOC failed to make an individualized reasonable cause determination as to the specific allegations of any of the thirteen named plaintiffs in this action….
During the course of its involvement in this case, the EEOC filed, and lost, over a dozen motions. Furthermore, Cintas was forced to file a number of motions because of the EEOC’s failure to properly respond to Cintas’ discovery requests. Cintas succeeded on all of these motions, and the EEOC’s conduct served only to prolong this decade-long litigation…. In his March 2, 2010 Order Granting Motion to Compel, Magistrate Judge Scheer stated, “There appears to be no purpose for [the EEOC’s] position [to withhold the questionnaires] other than to increase the difficulty and expense of the defense of this action by Cintas.”
Employers, if you’ve ever been sued by the EEOC, you know it is never fun to be in its crosshairs. Unlike you, the agency does not pay lawyers to litigate for it, and has seemingly unlimited resources to make your lives a living hell. Take heart, though, that there are judges who will hold the EEOC’s feet to the litigation fire. As this case illustrates, it is possible to beat the EEOC at its own game. But, it’s going to take perseverance.
A copy of the Court’s 31-page opinion is available here.
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.
Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. This year, we’ve expanded Top Blogs to our Labor and Employment Law Community. We’ve been fortunate to host the content of a number of distinguished legal professionals who have shared their insights and expertise with our Community, and through the process of seeking what we consider to be “top blogs,” we have discovered many more.
Here’s where the hard part comes in. LexisNexis is asking for your help to whittle the initial list of 59 down to the final list of the top 25 labor & employment blogs. If you have something nice to say about my blog, or any of the other deserving nominees (including my six contributors to Think Before You Click…), please take a minutes to submit your comments to LexisNexis. LexisNexis will consider all comments submitted through September 12 in compiling its top 25 list. At that point, LexisNexis will open the top 25 to voting to select the Top Labor and Employment Blog of the Year.
Thank you, LexisNexis, for including me. And, thank you to any of my readers who take the time to drop LexisNexis a note on my behalf. And, lastly, thanks too to anyone who has taken the time to nominate my blog to the 2011 ABA Blawg 100.
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.
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.
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.
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).
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.
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).
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.
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?
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.
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.
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.
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.
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.
Play fair.
Don’t hit people.
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.
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.
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.
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.
