Using arrest and conviction records for hiring. What Does the EEOC Say?

The Peace Corps asked the EEOC for an opinion on the legality of its use of conviction and arrest records to screen potential volunteers. In response, the EEOC published an informal opinion letter, which offers guidance for employers who are considering using conviction or arrest as part of their screening processes.

Conviction Records

• According to the EEOC, conviction records have the potential to have a disparate impact on African Americans and Hispanics. Therefore, employers should only use them when “job related and consistent with business necessity.”
• To ensure that applicants’ criminal history information is used in a way that is consistent with Title VII, the EEOC recommends that employers limit criminal history inquiries to convictions that are related to the specific positions in question, and that have taken place in the past seven years.

Arrest Records

• Arrest records are different than conviction records because of their inherent unreliability. For example, they are not persuasive evidence that the person engaged in the alleged conduct, and may also be poorly reported or updated.
• If employers decided that arrest records serve a useful purpose in screening applicants, their use should be limited to offenses related to the specific position.
• To account for the potential unreliability of arrest records, employers should also provide applicants a reasonable opportunity to dispute their validity.

Hustling for a lawsuit

Larry Flynt is no stranger to the courtroom. Now, it appears his brother, Jimmy Flynt, isn’t either. Jimmy has filed suit in federal court in Cincinnati, claiming that the family business wrongfully terminated his employment. Flynt v. Flynt Management Group, LLC [pdf] is the latest salvo fired by Jimmy against his brother and former business partner. Earlier this year he lost a different lawsuit that sought to take control of the business. According to the Cincinnati Enquirer, this fight started “several years ago when the brothers had a falling out after Larry fired Jimmy’s two sons.”

Lawsuits come from all angles. As this story illustrates, and as is often the case, the stronger the relationship, the nastier the fall-out.

[Hat tip: MattAustinLegal]

Winning the battle but losing the war in FMLA cases

The FMLA allows for two different theories of recovery—interference and retaliation. Interference is when an employer denies an FMLA benefit to which an employee is entitled and of which the employee provided notice. Retaliation is when an employee’s use of a protected FMLA right causes an employer’s adverse action. These claims are mutually exclusive, and a terminated employee can succeed on one and fail on the other.

Consider, for example, Platt v. Lamrite West, Inc. (N.D. Ohio 8/17/11). Platt involved an employee terminated for violating an employer’s call-off policy after making a request for FMLA leave. The court denied the employer’s motion for summary judgment on the employee’s interference claim, but granted summary judgment and dismissed the employee’s retaliation claim.

On the interference claim, the court concluded that there was a genuine issue of fact as to whether the employer’s FMLA paperwork modified the call-in procedure. At the same time, however, the court concluded that there was no issue of fact on the employee’s retaliation claim:

He … would have been terminated for violating this policy even if he had not requested FMLA leave…. Between 2007 and 2010, 56 warehouse employees were terminated by Defendant for failing to comply with Defendant’s attendance policies. Like Plaintiff, these former employees were terminated for failing to report to work or notify Defendant for three consecutive work days. Unlike Plaintiff, these former employees did not seek FMLA leave, further supporting Defendant’s proffered non-retaliatory grounds for termination.

As the court pointed out, holding the employee to the call-off policy “may create an interference claim, [but] it does not give rise to a retaliation claim.” Thus, you can terminate an employee for exercising an FMLA right without retaliating against him or her, so long as you do not treat the employee any differently than any other employee. However, that termination still might give rise to a claim under FMLA for interfering with the exercise of FMLA rights. In other words, you might win the retaliation battle against a terminated employee, but ultimately lose the FMLA war.

Some social media stats to get you thinking this week

This time next week, I’ll be in Denver to speak about workplace social media issues at the annual Meritas Litigation and Labor & Employment Conference. In preparing for my session, I came across the following statistics (taken from a recent survey conducted by DLA Piper):

Of employees who use social media sites for personal use:

• 39% have befriended a colleague or business contact on Facebook or LinkedIn
• 14% have posted a status update or tweeted about their work
• 22% have posted a status update or tweeted about a work colleague
• 28% have posted photos of colleagues or business activities
• 1% have posted confidential business information

Of employers:

• 21% have taken disciplinary action because of information an employee has posted about a co-worker
• 25% have taken disciplinary action because of information an employee has posted about their activities at work
• 31% have taken disciplinary action because of information an employee has posted about the organization
• 30% have taken disciplinary action because of the level of an employee’s social media use at work

Despite these results, only 14% of employers reported having a social media policy that regulated the use of social media outside the workplace. In other words, there is still a huge divide between employees’ use of social media and employers’ regulation of that use.

Employers, you may think it is common sense that your employees not Tweet or Facebook about the goings-on in your workplace. These numbers say otherwise. Doesn’t it make sense to have a formal, written policy to guide the discussion, set expectations, and bridge this gap?

WIRTW #197 (the “NSFW” edition)

The following video has been making the rounds this week. It’s called Popsicle, and cleverly asked this question at the end: “Is this sexual harassment?” The video is probably NSFW, so watch with caution.

This ad is not the first to use this kind of imagery. Remember this Burger King ad from a couple of years ago?

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

Discrimination

• EEOC’s Reduced Budget Likely To Impact Employees and Employers – from The Proactive Employer Blog
• Employers, don't try to dismiss that lawsuit before its time – from Robin Shea’s Employment and Labor Insider
• The EEOC: Now Marketing Lawsuits against a Company Near You – from Kris Dunn, The HR Capitalist
• Can An Employer Ask a Job Applicant …The Nuts & Bolts of Legal Preemployment Inquiries – from Michigan Employment Law Advisor
• Maternity leave, the Pregnancy Discrimination Act and summary judgment – from Work Matters
• Giving Aid to the Enemy: The Healthy Workplace Act Explained – from Michael Fox’s Jottings By An Employer’s Lawyer
• 4th Circuit Holds Religious Organizations Exempt from Title VII In “Modest Garb” Case – from Laconic Law Blog
• Court Case Gives Employers Clarity on Disciplining Disabled Workers for Misconduct – from Workplace Insights

Social Media & Workplace Technology

• Whoops. Google Engineer Accidentally Makes His “Plus Sucks” Rant Public – from Kashmir Hill’s The Not-So Private Parts
• Legal Issues Surrounding Social Media Background Checks – from Labor Employment Law Blog
• NLRB Social Media Memo Part IV - Overly Broad Policies – from Phil Miles’s Lawffice Space
• Labor negotiations now a social process – from The Human Race Horses
• Rhyme or Reason? Trying to Make Sense of the NLRB’s Social Media Cases – from Labor Relations Update

HR & Employee Relations

• We Recommend Against the Asparagus – from Lawyerist
• What Are My Favorite “Work” Songs On My iPod? Steve Jobs Knows – from Dan Schwartz’s Connecticut Employment Law Blog
• Millennials Turn Corporate Culture on its Head – from i-Sight Investigation Software Blog
• The Importance of a Release – from Rob Radcliff’s Smooth Transitions
• What To Do When An Employee Doesn't Celebrate Halloween – from Workplace Diva
• Is Employment a Civil Right? – from Compensation Cafe
• Abortion at Work – from The Cynical Girl
• Should Companies Use Credit Checks to Screen Job Applicants? – from Time

Wage & Hour

• Doggone-it. Must employers give leave to employees with hurt pets? – from Eric Meyer’s The Employer Handbook Blog
• The Dark, Ugly Side of Using Unpaid Interns (under the FLSA) – from SmartHR
• President And CEO Personally Liable For Wage And Hour Violations In Torres v. Gristede’s Operating Corp. – from Overtime Lawyer Blog
• Judge Rules Ohio-based Cascom Employees Misclassified as Independent Contractors – from Fair Labor Standards Act Law
• Court: Cable Installers Employees, Not Independent Contractors – from Wage & Hour Insights

Labor Relations

• A Public Menage A Trois - Joining The NLRB’s Public Posting Party – from Social Media Employment Law Blog
• Ladies’ Local 321 – from Main Street Gazette
• Union Free You Tube Video: Organizer Ties OWS to SEIU – from Labor Relations Institute

Social media and privacy cannot coexist

During my appearance on The Sound of Ideas to discuss social media in the workplace, NLRB General Counsel Lafe Solomon made an interesting point about the accessibility of employees’ social media by employers. The question arose as to whether employees can short-circuit workplace problems by locking employers out via available privacy settings on sites such as Facebook. Lafe observed that in every social media case brought to the NLRB, the employer learned of the offending social media posts not by its own online discovery, but by a co-worker who narced. Privacy settings on Facebook can keep non-friends from accessing information, but they cannot prevent someone to whom you have granted access from turning that information over.

Here’s the snippet of my back and forth with Lafe Solomon discussing this issue during yesterday’s show:

Employees need to disavow themselves of the notion that there is such a thing as “privacy” in social media. After all, the word “social” is half of the equation. These are not conversations we are having with ourselves. People keep diaries for those matters they really want to keep private; they should not be broadcasting those private thoughts for the world to see. Once you put information out there, you have to assume that your employer will discover it.

Using social media is as much an exercise in reputational management as it is in the sharing of information. Until employees fully understand and embrace the implications of the sociability of these tools, the NLRB will remain busy deciding the merits of terminations that result from social media’s irresponsible use by those seeking the NLRB’s protection.

They always said I had a face for radio

This morning’s appearance on WCPN—discussing social media and the workplace—could not have gone better. It was an engaging hour, capped off with a rare opportunity to challenge NLRB General Counsel Lafe Solomon on some of his agency’s positions on social media. All told, I thought Mr. Solomon came across (more or less) reasonably, even if I think the positions of his agency and him on the issue of social media as protected concerted activity are (more or less) unreasonable.

For those who missed my appearance, or cannot wait to relive the hour, here are the links:

• www.ideastream.org/soi/entry/42863: to stream from WCPN’s website
• itunes.apple.com/us/podcast/social-media-and-the-workplace/id210936081?i=100923395: to download as a podcast for your iDevice
• www.OhioChannel.org/MediaLibrary/Media.aspx?fileId=132970: for the video stream

Or, you can simply watch right here:

I’ll be on NPR tomorrow morning talking about social media

Tomorrow morning, from 9 – 10 a.m., I’ll be a guest on WCPN’s The Sound of Ideas (the “best radio show” in Ohio, according to The Cleveland Press Club). I’ll be discussing workplace social media and labor/employment law. One of the other guests will be Lafe Solomon, General Counsel of the National Labor Relations Board, so it should be an interesting and spirited conversation.

You can listen/watch live at www.ideastream.org/soi. Following the live show, a recording will be available at iTunes and from The Ohio Channel.

The phone numbers, should you want to call with a question or comment during the show, are 216-578-0903 or 866-578-0903.

The Employer Bill of Rights

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The Employer Bill of Rights is now available as a book. It is a practical handbook designed to help business owners, managers, supervisors, and human resources professionals navigate the ever-changing maze of labor and employment laws, rules, and regulations.

You can purchase your copy in a variety of formats:

• Amazon – paperback
• Amazon – Kindle
• Barnes & Noble – paperback
• eBook

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According to Liz Ryan, writing at Businessweek.com. “Actual employee rights in the U.S. are fairly limited.” She posits that because “it’s legal to make hiring and termination decisions for random (nondiscriminatory) reasons” (such as an employee’s favorite sports team), employees need a “Bill of Rights” to protect themselves.

After nearly 15 years representing employers in workplace disputes, the one conclusion that I can reach with absolute certainty is that American employees do not lack workplace rights. There is a veritable alphabet soup of laws that protects employees:

• Title VII: race, color, religion, sex, and national origin
• PDA: pregnancy
• ADEA: age
• ADA and ADAAA: disability
• GINA: genetic information
• USERRA: returning veterans
• FMLA: family leave
• FLSA: minimum wage, overtime, and child labor
• ERISA: benefits
• COBRA: continuing health coverage
• OSHA: safety
• NLRA: labor
• FCRA: background checks
• WARN: plant closings

The only group in the country that lacks workplace rights is employers. We are the marginalized and the unprotected, living in fear of making any personnel decisions because they might result in expensive lawsuits. Employers, I feel your pain, and present the Employer Bill of Rights:

1. The Right to Hire on Qualifications: We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire.
2. The Right to Fire on Performance: We also want the right to fire without the fear of an expensive lawsuit when you fail to perform. Every performance review is not an attempt to push you out the door. Believe it or not, every employee we hire represents an investment by us. We want that investment to bear a substantial return. Criticism is meant be a constructive attempt to help you improve, not a destructive set-up for you to fail.
3. The Right to Control Operations: We know how many people we need to employ, how many shifts we need to run, and how many facilities we need to operate. Most importantly, we know what can afford to remain profitable. If we have to shutter or relocate a plant, lay people off, or furlough hours, it’s not because we are discriminating against you; it’s because it’s necessary for us to remain open and able to employ anyone at all.
4. The Right for You to Follow Our Work Rules: We do not distribute handbooks and other policies because we like destroying trees. We do so because we think every relationship needs to be guided by a set of expectations under which each side is supposed to operate. All we ask is that you live up to your end of the bargain and accept the consequences if you don’t.
5. The Right to Be Told When There Is a Problem: We cannot fix workplace problems if the first we hear about them is when a lawsuit is served. Help us help you by letting us know if you think you’re being discriminated against, retaliated against, paid incorrectly, or otherwise being treated unfairly. If you’re right, we’ll fix it. Right or wrong, we won’t hold it against you.
6. The Right to Receive an Honest Day’s Work: When you are at work, we ask that you reasonably dedicate yourself to the tasks at hand. It’s only fair; after all, we are paying you for your services.
7. The Right to Have Our Say Before You Form a Union: We recognize your right as employees to form a union if that’s the collective choice of your majority. Just hear us out and let us have our say on why it’s not all it’s cracked up to be and may not be in your best interest.
8. The Right to Reasonable Notice: We understand that certain laws (the ADA and the FMLA, for example) provide employees rights to certain accommodations, which we follow. In return, we merely ask that when possible, you not wait until the last minute to request an accommodation or a leave of absence. It wreaks havoc with our scheduling and operations.
9. The Right to Be Treated With Respect: Businesses need respect too. We expect that you will demonstrate that respect to us and your fellow employees by showing up on time, not passing off to others that which you can (and should) do yourself, not waiting until the last minute to schedule your vacation, and generally treating others as you would want to be treated.
10. The Right to Confidentiality: We expect you will not share internal workplace issues with the outside world, whether they are our trade secrets or other proprietary information, or the day-to-day goings-on inside our company.

Stereotypes

On last Sunday’s episode of HBO’s Boardwalk Empire, Chalky White, a jailed African-American bootlegger, comforted his wife with the following information about his attorney: “He a Hebrew gentleman.” Lest you think that such observations were left in the 1920s, I once had a client I was defending in a race harassment case refer to me as his “Jew lawyer.”

I relay these tales (both real and fictional) because of a story on Businessweek.com about a national origin discrimination case recently filed by the EEOC against a Colorado hotel. The lawsuit claims that hotel ownership directed management “to hire more qualified maids, and that they preferred maids to be Hispanic because in their opinion Hispanics worked harder.” The lawsuit further claims that management told one of the fired employees that ownership did not want to employee American or Caucasian workers “because it was their impression that such workers are lazy.”

There is no hiding that stereotypes—both positive and negative— exist. To some degree we all harbor them (and anyone who tells you differently is full of it). The better job you do of insulating your personnel decisions from these stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

WIRTW #196 (the “atonement” edition)

As I’ve mentioned in this space before, my family is of mixed religion. I’m Jewish and my wife is Catholic. I offer this information because tonight at sundown begins Yom Kippur, the Jewish day of atonement. Unlike Catholics, who confess their sins every week, we Jews ask for God’s forgiveness in a lump sum, once per year on Yom Kippur.

While this comparison is an over-simplification, it nevertheless serves as a jumping-off point to offer my apologies for any posts I’ve written over the past year that might have offended. I do not offer this apology for my viewpoints and opinions—for which I would never apologize or shy away from. Instead, I apologize if language and word choice caught some of my readers off-guard. Employment law can be dirty and offensive. For me, it’s part of what makes it interesting. It is not, however, everyone’s cup of tea.

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

Discrimination

• Employers, don’t be overzealous with your wellness. Beware of the ADA and everything else – from Robin Shea’s Employment and Labor Insider
• Criminal Background Checks and Avoiding Discriminatory Hiring Practices – from i-Sight Investigation Software Blog
• What Does “Similarly Situated” Really Mean? – from Stephanie Thomas’s The Proactive Employer Blog
• Employee drug testing and bashful bladders; it’s a wicked pissah! – from Eric Meyer’s The Employer Handbook Blog
• Attorneys Dancing Around Impact of Gender Identity Discrimination Law – from Dan Schwartz’s Connecticut Employment Law Blog
• Disparate Impact and the Non-Traditional Plaintiff – from Michael Fox’s Jottings By An Employer’s Lawyer
• Supreme Court Weighs Rights Of Parochial-School Teachers – from NPR
• EEOC vs. the ministerial exception – from Walter Olson’s Overlawyered

Social Media & Workplace Technology

• What Prospective Employers Hope To See In Your Facebook Account: Creativity, Well-Roundedness, & “Chastity” – from Kashmir Hill’s The Not-So Private Parts
• A Canadian Perspective on Social Media and Concerted Activity – from Fitzpatrick on Employment Law
• Attorneys’ Duties Regarding Employee Emails – from Phil Miles’s Lawffice Space
• Privacy and company email use—what can employees expect? – from Employment Law Bits
• Employee Privacy 3—Social Media – from Heather Bussing at HR Examiner
• You Are Your Company’s Biggest Security Risk – from Above the Law
• Employer did not violate employee’s privacy by accessing personal laptop – from Internet Cases

HR & Employee Relations

• On WWE and Organized Labor – from Grantland
• Reasons to Terminate: More Is Not Merrier – from Molly DiBianca’s Delaware Employment Law Blog
• The DNA of HR Decisions: Why Documentation is Important – from Michael Haberman’s Omega HR Solutions
• Scratching My Head – from KnowHR Blog
• The “exit parade” as a worker termination protocol – from David Yamada’s Minding the Workplace
• Keep Your Employees off the Playground: Preventing and Dealing with Workplace Bullying – from Workplace Insights
• Do You Regularly “Fit Test” Your Employees? – from Ann Bares’s Compensation Force

Wage & Hour

• Ohio Minimum Wage Increase for 1/1/12 – from THRD’s Blog
• DOL/IRS Collaboration Memo Makes For Interesting Reading – from Wage and Hour Laws Blog
• In “Salary Misclassification” Case, Unpaid OT Calculated at Time and a Half Rate, Not FWW – from Overtime Law Blog
• Do Employers Have to Pay for Travel Time? – from Wage & Hour Insights

Mourning Steve Jobs

I never knew Steve Jobs, but he's always been a part of my life—from the Apple IIe on which I learned to program BASIC three decades ago, to the iPad on which I'm typing this post, and all the life-altering products I've owned in between. And, while my kids don't know it, he's been an important part of their lives too, through the wonderful characters he made possible with Pixar.

I have little to add to what others have already eloquently said. The world has lost a great visionary—our generation's Edison—whose impact will be felt for years to come, yet whose import will not fully be known for centuries. Instead of imparting some great words of wisdom, I'll let Steve speak for himself, via his 2005 Stanford commencement address, given shortly after his cancer diagnosis.



Rest in peace. Heaven will be a cooler place with you there.

BREAKING: NLRB postpones posting of notice of employee rights

Don’t rush to post the NLRB’s latest missive advising union and non-union employees of their rights under federal labor laws.

From the NLRB:

The National Labor Relations Board has postponed the implementation date for its new notice-posting rule by more than two months in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.

The new effective date of the rule is Jan. 31, 2012.

I wonder if the outcry from business groups, coupled with a pending lawsuit to block the workplace posting, has anything to do with the NLRB’s delay?

Betting on a lawsuit

There have been a lot of bad bets made over time. For example, two years ago I bet on the World Series and, after the Phillies lost, had to painfully write a blog post praising the Yankees. On The Office last week, newly-appointed regional manager Andy Bernard bet his staff a butt tattoo that they couldn’t reach an unheard of sales quota. Perhaps the most famous pop culture example of a bet is Seinfeld’s contest, where the four bet on who would be the “master of their domain.”

Then, there’s this gem, courtesy of the Des Moines Register:

A Bettendorf businessman, branded as the “boss from hell” by some of his employees, offered prizes to workers who could predict which of them would next be fired…. William Ernst, the owner of a Bettendorf-based chain of convenience stores called QC Mart, sent all of his employees a memo in March, outlining a contest in which the workers were encouraged to participate. The memo read: “New Contest – Guess The Next Cashier Who Will Be Fired!!! … To win our game, write on a piece of paper the name of the next cashier you believe will be fired. If the name in your envelope has the right answer, you will win $10 CASH.”

An administrative law judge sided with an ex-employee in her unemployment hearing, writing about the “egregious and deplorable” contest: “The employer’s actions have clearly created a hostile work environment by suggesting its employees turn on each other for a minimal monetary prize…. This was an intolerable and detrimental work environment.”

To be fair, in my career I’ve seen a lot worse work environments. For example, I vividly recall a cake in likeness of a vagina, iced with homophobic epithets, presented to an employee as a challenge to his perceived lack of manliness. Notwithstanding, I’m not sure I’d ever recommend a firing contest as a form of employee motivation.

Does the ADA protect the morbidly obese?

Two years ago, I asked whether “obese” qualified as a new protected class under the ADAAA. According to the EEOC in a newly filed lawsuit, the answer is an unequivocal “yes.”

The Houston Chronicle reports that the EEOC has filed suit against BAE Systems on behalf of Ronald Kratz II, claiming that the 680 pound man was fired because of his obesity. For his part, Kratz claims he was specifically told “he was being terminated because company officials thought he weighed too much”—the most direct of direct evidence, provided that the ADA protects obesity as a disability.

In its complaint, the EEOC alleges:

   12. At the time of his discharge, Kratz was morbidly obese. Kratz’s morbid obesity substantially limits him in one or more major life activities. Morbid obesity is a disability under the ADAAA.

   13. BAE regarded Kratz’s morbid obesity as substantially limiting him in one or more major life activities.

The leading case in the 6th Circuit on the treatment of morbid obesity under the ADA is EEOC v. Watkins Motor Lines (2006), which concluded that morbid obesity must be the result of a physiological condition to qualify as an ADA-protected disability.

Later cases, decided under the 2009 ADAAA, however, have called that holding into question. For example, Lowe v. American Eurocopter, LLC (N.D. Miss. 2010) concluded that because of how broadly the ADAAA defines both major life activities for purposes of an actual disability, and “regarded as having” a disability, the ADAAA covers morbid obesity irrespective of whether it is caused by a physiological condition.

As much as it pains me to say it, the Lowe court might be right under the current law. The ADA (as enlarged by the ADAAA) is now so expansive in its coverage that morbid obesity might be covered, even without an underlying physiological cause. Employers, chew on this morsel of information as employees get fat on ADA claims.

Hot dog! Another social media decision from the NLRB (and employers should pay attention)

A few weeks ago, an NLRB Administrative Law Judge issued the agency’s first-ever decision debating the legalities of terminating employees for social media activities under federal labor laws. Karl Knauz Motors, Inc. (9/28/11) [pdf] is the second. Following Knauz Motors, we are starting to receive some clarity as to what is (and, perhaps more importantly, what is not) protected online speech under the National Labor Relations Act, and how far employers’ policies can go in trying to restrict this speech. 

This case concerns two series of Facebook posts by Robert Becker, a salesperson at Knauz Motors’s BMW dealership, of two separate incidents.

In the first, Becker criticized a dealership promotional event at which hot dogs were passed out. Becker posted photos on his personal Facebook wall of the hot dog cart, along with sales people holding hot dogs, bags of Doritos, and bottles of water. He also posted the following a comment on the dealership’s event page criticizing the catering as beneath BMW’s standards. In the second, Becker posted a photograph on his Facebook wall of a car driven into a pond by the 13-year-old son of a customer of the adjacent Knauz-owned Land Rover dealership.

The ALJ concluded that the posts related to the BMW promotional event were protected, concerted activities for which Becker could not be disciplined or terminated—Becker, a commissioned salesperson, believed that the budget-conscious food choices could negatively impact sales and, therefore, his earnings. He had posted to enlist the support of his fellow employees as an outgrowth of a prior in-person conversation about the same issue. Conversely, the post related to the Land Rover incident was not protected—Becker posted it without discussion with other employees and without connection to any terms and conditions of employment.

Ultimately, the ALJ concluded that Knauz lawfully terminated Becker because of the Land Rover post, and not because of the hot dog posts.

Perhaps of greater interest is the portion of the opinion concerning the dealership’s employee handbook. The ALJ concluded that the following conduct policies in the handbook were overly broad:

• Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.
• Unauthorized Interviews: As a means of protecting yourself and the Dealership, no unauthorized interviews are permitted to be conducted by individuals representing themselves as attorneys, peace officers, investigators, reporters, or someone who wants to “ask a few questions.”
• Outside Inquiries Concerning Employees: All inquiries concerning employees from outside sources should be directed to the Human Resource Department. No information should be given regarding any employee by any other employee or manager to an outside source.

According to the ALJ:

If employees complied with the dictates of these restrictions, they would not be able to discuss their working conditions with union representatives, lawyers, or Board agents.

While none of the at-issue policies was a “social media” policy, employers need to understand that the NLRB could take issue with any policy that might infringe on employees’ rights to engage in protected, concerted activities. This means that businesses must walk a fine legal line in drafting social media and other communication policies, which must be narrowly drafted to ensure that employees cannot reasonably perceive that they are limited in how they can discuss their terms and conditions of employment. In simpler terms, employers need to think twice before painting employee communication restrictions with a broad brush.

(If you want to know about these issues, pick up a copy of Think Before You Click: Strategies for Managing Social Media in the Workplace).

[Hat tip: LaborRelated and Lawffice Space]

WIRTW #195 (the “pay equity” edition)

On Tuesday, I was the special guest on the Lunch as the Compensation Café roundtable. The topic: Pay Equity—Not Just for Women! Thanks to my hosts—Ann Bares (from Compensation Force) , Stephanie Thomas (from The Proactive Employer Blog), and Jim Brennan—for an engaging conversation about the importance of compensation self-audits. For those who missed it, the reply is available at focus.com.

Also, today is the last day to vote for the LexisNexis Top 25 Labor & Employment Blogs of 2011. Thanks to everyone who’s voted for any of these deserving blogs.

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

Discrimination

• Is This the Right Way to Help the Unemployed? – from You’re the Boss Blog
• Full Employment, for Lawyers – from National Review Online
• Business Case for Proactive EEO Compliance – from Stephanie Thomas’s The Proactive Employer Blog
• Suit By EEOC Not Covered Under EPLI Policy – from Michael Fox’s Jottings By An Employer’s Lawyer
• Hot Dog! EEOC accuses eatery of same-sex sexual harassment – from Eric Meyer’s The Employer Handbook Blog
• Accommodating Religion: NYC Adopts Definitions of Undue Hardship and Reasonable Accommodation for Employees – from The L•E•Jer
• How to Protect Your Business Against Discrimination Lawsuits – from CPEhr

Social Media & Workplace Technology

• Social-Media Policies: Ethical Issues for Court Employees – from Molly DiBianca’s Delaware Employment Law Blog
• Facebook’s Timeline Will Impact Your Career – from Harvard Business Review
• Facebook Keeps A History Of Everyone Who Has Ever Poked You, Along With A Lot Of Other Data – from Kashmir Hill’s The Not-So Private Parts
• Text Message, Email, and Social Media Authentication – from Phil Miles’s Lawffice Space
• Firings, Discipline Over Facebook Posts Leads To Surge In Legal Disputes – from Business Insider

HR & Employee Relations

• Employment at Will: The Most Misunderstood Principle in the Workplace – from TLNT
• 5 Investigation Interview Mistakes to Steer Clear Of – from i-Sight Investigation Software Blog
• Choosing the Investigator – from Russell Cawyer’s Texas Employment Law Update
• HR Related Musings: Layoffs and Competition – from Mike Haberman’s Omega HR Solutions
• Bad Reward Decisions & Layoffs – from Ann Bares’s Compensation Force
• How Paying Departing Employees to “Tend the Garden” Can Benefit an Employer's Business – from Unfair Competition & Trade Secrets Counsel
• No Smokers Allowed – from Rob Radcliff’s Smooth Transitions
• Employment Documents in Plain English – A Primer – from Tim Eavenson’s Current Employment
• The Top Office Pet Peeves Of Workers Around the World – from Workplace Diva

Wage & Hour

• Employers, don’t be too quick to take that IRS “independent contractor” deal – from Robin Shea’s Employment and Labor Insider
• Are Employers Rolling the Dice Under the IRS’s Employee/Independent Contractor Reclassification Program? – from Jason Shinn’s Michigan Employment Law Advisor
• Smart Phones and The DOL: Employers Better Wise Up – from Wage & Hour - Development & Highlights
• Phone conversation with boss counted as working off the clock – from HR Cafe
• Continuous Confusion: Defining the Workday in the Modern Economy – from The Wage and Hour Litigation Blog
• Some Realities of Unpaid Overtime Claims – from Portland Oregon Employment Lawyer
• Failing to Return Employee’s Phone Calls May Be FMLA Retaliation – from FMLA Insights
• Curbing FMLA Abuse: Policies Restricting an Employee’s Travel While on Paid Sick Leave – from Pennsylvania Labor and Employment Blog
• “Out of Control” Employee Screaming Profanities Loses out on COBRA Due to Gross Misconduct – from SmartHR

Labor Relations

• What? NLRB overrules employee vote to boot union – from HR Daily Report
• AFL-CIO v. American Bar Association on LMRDA Disclosure Rules – from Workplace Prof Blog

KJK scores huge victory in wage and hour class action lawsuit

Class certification is the seminal moment in wage and hour cases. The decision to certify a class will determine whether the case has the potential to be bet-the-company litigation, or merely litigation with a few discontented employees. Wal-Mart v. Dukes significantly altered the rules by appropriately shifting the focus in class actions to the existence (or lack thereof) of individual issues that distinguish and separate class members from each other. Even before the Supreme Court decided Dukes, however, courts were tuned-in to this issue. For example, consider Mickle v. Wellman Products, LLC, in which we scored a tremendous victory for our client by winning the reversal of the trial court’s class certification.

The plaintiffs in Mickle, four ex-employees, sought the certification of a class of employees for alleged unpaid wages. The issue: unpaid “gap time”—the time between when the employees clocked in/out and started/ended their work days.

To avoid any editorialization of my own case, I’m turning over the remainder of this post to the words of the Oklahoma Court of Appeals.

The Court described the challenged pay practice:

The hand scanned times are subject to “ETime Punch Rounding.” Under the rounding system, if an employee scans in prior to the start time of his or her shift, the employee’s start time is rounded to the beginning of the shift. If an employee scans after the start of his or her shift time, the rounding defaults the employee’s start time to the next quarter hour increment. At the end of the shift, if an employee scans out early, the employee’s end time is rounded to the prior quarter hour increment. If an employee scans out late, after the end of his or her shift, the employee’s end time is rounded the prior quarter hour increment.

The hand scanned times are not the sole method used by Wellman to determine payroll. Before an employee’s time is submitted to payroll, each employee’s default rounded ETime is reviewed and manually edited by a Lead to reflect the time an employee actually worked. The evidence submitted by Wellman demonstrated the Leads sometimes manually rounded punch time to the benefit of an employee. The ETime records are then submitted to payroll for editing and for use in creating weekly pay.

The plaintiffs alleged:

ETime always rounded in Wellman’s favor and the times recorded by the hand scanner and the rounding system provided common proof of all hourly employees’ uncompensated work during the time period between the hand scan and the shift buzzer.

The company argued:

[C]ertain proposed class members may not have performed work-related activities during the gap period. At the hearing, several employees … testified that during the gap periods, they may socialize with other employees, eat a meal in the break room, wash their hands, shower and change clothes, smoke cigarettes, or read the newspaper. These employees also testified that ten minutes before the buzzer sounded at the end of their shift, they would clean-up their work site in preparation for the next shift. The time record evidence shows routine individual adjustment of pay time both ways for a variety of reasons, pursuant to the gap period policy.

The Court held:

[T]he common issue of an allegedly flawed time-keeping method is “swamped by individual factual inquiries into the activities of each employee during the gap periods.” … Because Wellman did not exclusively rely on the hand scanned times and the ETime punch rounding method to determine payroll and each claim for unpaid overtime work must be examined to determine if such work was authorized, we hold individualized proof concerning each hourly employee’s activities during the gap period is indispensable to each employee’s claim….

[W]e conclude issues as to whether each employee was engaged in work or non-work activities during the gap period are too individualized to warrant class treatment for all hourly employees….

The full opinion of the Oklahoma Court of Appeals, which the Oklahoma Supreme Court has declined to review, is available for download from the National Chamber Litigation Center.

When you care enough to send the very best ... to the unemployed

Hallmark—the purveyor of greeting cards for occasions such as miscarriages and cancer—has tapped into a new market with a line of cards for the unemployed. Some of the gems include:

• When things are looking kinda gloomy, do as I do. Stare into the heavens, breathe deeply, and say … Give Me a %#!@$!! Break!!!
• It’s hard to know what to say at a sensitive time like this. … How about, “I’m buying!”
• One day, you’ll look back on all this with the wisdom that distance bestows, and you’ll say … “Wow, that sucked.”
• Don’t think of it as losing your job. … Think of it as a time-out between stupid bosses.

According to the Department of Labor, our national unemployment rate is holding steady at 9.1%, representing 14 million people out of work. I’m guessing business is booming for Hallmark.

[Hat tip: Eve Tahmincioglu]

Let employees have their say when disciplining

When you counsel or discipline employees, do you give them a chance to have their say? For example, does your written discipline or performance review forms provide space for employees to explain their side of the story? If your answer is akin to, “It won’t change the outcome, so why bother?” consider Cozzuli v. Sandridge Food Corp. (Ohio Ct. App. 9/26/11) [pdf].

Sandridge Food fired Cozzuli after several years of poor reviews and performance problems. In affirming the trial court’s grant of summary judgment to the employer, the appellate court relied on the fact that “Cozzuli signed his performance review and opted not to write any comments in the ‘Employee Comments’ portion of the paperwork.” The court did not believe it was credible for an employee to use performance critiques, about which he had not taken issue during his employment, as evidence of discrimination afterwards.

In depositions, I always make sure the employee confirm that the employer provided the opportunity to make written comments about discipline, and that they chose not to do so. It is powerful evidence that—as Cozzuli illustrates—can help obtaining a dismissal.