The National Labor Relations Board has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.
Today marks the Blog’s last original post of 2011 (if you count a weekly summary as original content). Next week, I will run the 4th annual year-end countdown. In past years, I’ve counted down the top 10 labor and employment stories of that year. This year, I’ll be doing it a little differently. I’ll be recapping what I consider to be the best posts of 2011. Inevitably, we’ll hit some of the year’s biggest stories (social media, Wal-Mart v. Dukes, the EEOC, the ADA) too. What you’ll read, however, are the 10 pots of which I am the most proud from the past year, which will include some (but not all) of the year’s most newsworthy and important stories.
Everyone have a Merry Christmas, Happy Hanukkah, celebratory something else, and a safe New Year. I’ll be back on Tuesday, January 3, with brand new content for 2012.
In the meantime, if you want to give me an early Christmas present, cast your vote for the ABA Journal’s Blawg 100 (here to register, and here to vote). Thanks for your support.
Here’s what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
Yesterday, the NLRB announced that it had formally adopted a final rule amending its election case procedures. The rule is set to take effect April 30, 2012. Among other changes, this new rule significantly shortens the time between when a representation petition is filed and an election is held. For this reason, the rule is known as the “ambush election” rule. According to the NLRB, this new rule is intended to “reduce unnecessary litigation and delays.” In reality, it’s an alternate route to achieve higher union representation rates following Congress’s failure to pass the Employee Free Choice Act.
As quickly as the NLRB announced its adoption of the final rule, the U.S. Chamber of Commerce announced that it had filed a lawsuit in federal court seeking to block them. From the Chamber’s press release announcing the filing:
The Chamber’s lawsuit explains that the National Labor Relations Board’s final “ambush election rule” imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize. The rule drastically speeds up the election process, depriving employers of a fair opportunity to explain to employees the costs of unionizing and curbing employers’ opportunities to bring legal challenges to proposed representation elections.
This lawsuit joins two others that challenge a different aspect of the NLRB’s claimed rulemaking authority—its workplace rights poster, which is scheduled to become mandatory on January 31, 2012. In one of those cases, the assigned federal judge has asked the NLRB to delay its posting requirement to provide her more time to consider the challenge before her.
These are important issues that will affect all private sector employers, and which bear watching as they work their way through the court system. (Of course, if the Republican take back the White House in 2012, all of this administrative wrangling likely becomes moot).
The story of Hanukkah tells us that in 165 B.C., the Maccabees led a successful revolt against the Greeks, who had invaded Jerusalem and outlawed Judaism. When the Maccabees rededicated the Holy Temple after expelling the Greeks, they only located enough olive oil for the Temple’s menorah to burn for one night. That oil, however, burned for eight nights, the time needed to prepare a fresh supply—the miracle of Hanukkah.
I’ve been thinking of a way to tie this story to the workplace and impart a lesson to employers. The story of Hanukkah is one of perseverance, courage, and fighting for one’s beliefs. Employers are under assault from all fronts—lawsuits from disgruntled employees, overly zealous regulatory agencies and their overly burdensome regulations, and courts that can lack sufficient resources to address these issues properly. It’s easy for businesses throw in the towel, such as by relocating operations out of the country or by paying ransoms to settle meritless lawsuits. Perhaps the lesson here is to simply hold firm.
Happy Hanukkah.
James McKelvey, an Army veteran, lost his right hand and suffered other serious injuries trying to defuse a roadside bomb in Iraq. As if his physical injuries were not enough for him to endure, upon returning home to a civilian job in the Army, his co-workers subjected him to more than a year of disability-related harassment. For example, they repeatedly called him “lefty” and “cripple.” He resigned, believing the work environment was so hostile that he had no realistic option but to quit. He also sued for constructive discharge, for which a jury awarded him nearly $4.4 million in front pay.
In McKelvey v. Secretary of the United States Army (6th Cir. 12/14/11) [pdf], the court concluded that the trial judge was correct by taking the monetary verdict away, and instead ordering that McKelvey return to his Army job (albeit with improved working conditions and higher pay):
McKelvey can be reinstated to work at the armory quickly, without disrupting operations and without displacing another employee. In point of fact, the Army continues to offer him a position at the armory at a higher salary than he was earning before and under new supervisors. McKelvey’s relatively young age, 38, likewise suggests that front pay is not appropriate, since it requires highly speculative projections about his earning capacity and about employment decisions decades into the future.
In this case, reinstatement was the court’s decision, not the employer’s. Nevertheless, it raises an interesting point. If you’ve been sued, and you’re reasonably confident that your company was in the wrong, and you are comfortable reintegrating a litigant into your workplace, don’t fail to consider an offer to bring the employee back to work. It’s called an “unconditional offer of reinstatement,” and when used correctly (with the right employee and in the right case), it is an extremely powerful tool. The key word is “unconditional.” The offer must be to the same or equal position, with equal (or better) pay and benefits, and with full back pay and restoration of other lost benefits. The benefits are several. Such an offer cuts of the employee’s entitlement to back pay or front pay, in addition to severely hampering one’s ability to prove a right to punitive damages.
Consider adding the “unconditional offer of reinstatement” to your quiver of litigation tools. It just might rescue a good employee from the litigation scrapheap, and save you a few dollars too.
According to CNN, the Ohio Civil Rights Commission is reviewing the case of a Columbus landlord who has a little problem with African Americans swimming in her building’s pool. Worse, she expressed her opinion via this poolside sign, which reads, “White Only.”
In her defense, the landlord said that she has to “stick up” for her “white rights.” I’m not sure what other reaction I can have to this story other than this:
In all seriousness, there are some cases you just can’t do much about. People are who they are. I once had a racial harassment case in which the accused harasser dropped n-bombs like Braylon Edwards drops passes. Our job as management-side employment lawyers is to know when it's best to go for it and when it’s best to punt. It’s safe to say that I think this Columbus landlord made the wrong decision.
Employers have a mere 6 weeks, until January 31, 2012, to post the National Labor Relations Board’s new employee rights poster. It applies to all employers under the NLRB’s jurisdiction, union and non-union alike. Copies are available for download, in English and Spanish, from the NLRB’s website. For more information, I recommend Dan Schwartz’s Connecticut Employment Law Blog, where Dan posted a nice summary earlier in the week.
(Don’t forget, we’re halfway through December, which means you only have two weeks left to vote for the ABA Journal’s Blawg 100. If you have not yet voted, click here to register, and here to vote. Thanks for your support.)
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
We are not a tolerant society. We like to think that we are, but in reality, not so much. Instead, we are a polarized society. More and more, we live on the fringes with little tolerance for those whose viewpoints differ from our own. For example, consider that Lowe’s pulled their ads from TLC’s new reality show, All American Muslim.
We should not be surprised then, that religious discrimination claims in the workplace are trending upward. From Marcia Pledger, writing in The Columbus Dispatch (hat tip: i-Sight Investigation Software Blog):
Equal Employment Opportunity Commission statistics show that religious discrimination complaints in workplace settings have more than doubled from a little over a decade ago, resulting in roughly $10 million in settlements. Last year, nearly 3,800 were filed.
“Religion has increasingly moved into the private sphere, so when it does pop up in the workplace, we’re less equipped to deal with it in a rational and evenhanded manner,” said John Gordon, chairman of the religion department at Baldwin-Wallace College in Ohio.
Our Founding Fathers had enough foresight to separate church and state. 220 years later, we should have enough experience to separate church from work.
No one enjoys paper discovery. Any practitioner who tells you otherwise is either insane or lying. It’s time-consuming and expensive to gather and review information to produce, and it’s painful to squabble with opposing counsel over information withheld.
In an attempt to address and alleviate some of these concerns, the Federal Judicial Center has published its Pilot Initial Discovery Protocols for Employment Cases Alleging Adverse Action [pdf]. These protocols set forth the documents and categories of information that the plaintiff and defendant must turn over during the initial disclosure process, voluntarily and without a formal request, and no later than 30 days after the employer files its answer or responsive pleading. Molly DiBianca’s Delaware Employment Law Blog provides an excellent summary.
These disclosures are comprehensive, and cover many of the documents that will be exchanged in most garden-variety discrimination lawsuits. Of all of these disclosures, I want to point out one curiosity. Employers are not required to disclose the entire employee handbook, but only its table of contents and index. The only policies that employers are required to initially turn over are those “relevant to the adverse action in effect at the time of the adverse action,” such as discipline or EEO policies.
In light of these protocols, maybe we need to reconsider the rote production of entire employee handbooks in discrimination cases. Maybe we also need to reconsider the inclusion of tables of contents and indices in handbooks, to limit their discoverability at the outset litigation in federal court.
David Yamada is a law professor and the director of the New Workplace Institute at Boston’s Suffolk University Law School. He is also the author of the Healthy Workplace Bill, draft model legislation that, if ever passed, would impose liability on employers for employees who are bullied in the workplace, regardless of any protected status.
Yesterday, on his blog (Minding the Workplace), Professor Yamada made the following argument in favor of generalized anti-bullying legislation:
In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless…. In America—in contrast to many other nations—at-will is the presumptive employment relationship. This leaves workers especially vulnerable when they are subjected to severe workplace bullying by a supervisor, enabled by the employer. Because most bullying falls outside the protections of current employment law, workers have scant legal recourse, and employers have little incentive (at least from a liability standpoint) to act preventively and responsively.
In other words, Professor Yamada argues that states need to pass the Healthy Workplace Bill because at-will employees can be fired for any (not otherwise unlawful) reason. This argument validates a point I made all the way back in May 2007: the passage of anti-bullying laws will destroy employment at-will.
To quote another point I made just last year:
Employers who turn a blind eye to bullying … are doing their businesses and their employees a disservice. But, the issue is not whether bullying impacts its victims. We can all agree that it does. The issue is whether we need legislation that has the probability of turning every petty slight and annoyance in the workplace into a lawsuit…. Indeterminate bullying … should be self-regulating, and not a tort that has the likelihood of obliterating at-will employment by hamstringing supervisors and managers from supervising and managing.
Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack “incentive to act preventively and responsively,” as Professor Yamada argues. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.
I spend a lot of time writing and speaking about social media and the workplace, a lot of which discussing what I call the Big 3: Facebook, Twitter, and LinkedIn. Those 3, however, are not the only social media sites that impact the workplace. An example, you ask? YouTube.
Last Friday, Above the Law ran a story about a local attorney’s heavy metal video (which Video Ga Ga recently named the worst video of the year). Please watch—sorry, it will be permanently burned into your retinas. Then, let’s talk.
Being a lawyer is a stressful job. Trust me, I get that. We all need outlets outside of work to relieve that stress. Before I had kids, my outlet was golf. Now, it’s my kids. When your hobby involves dressing up one your company’s secretaries in a bustier, you might want to have second thoughts. It doesn’t take much to turn today’s extracurricular laugh into tomorrow’s harassment complaint.
Social networks offer tremendous benefits as added channels of communication for your employees. “Friending” subordinate employees on social media sites, however, also carries risk. Because of that risk, I advocate that companies train their employees about the dangers of unfiltered online communications and consider implementing policies and guidelines limiting who can connect on Facebook, Twitter, and their kin.
Common sense should instruct employees about right and wrong, but if employees used common sense I’d be out of a job. Apparently, I need to build a module into my workplace social media training program about using subordinate employees as scantily clad extras in bad music videos. Who knew?
*Larp: a type of game where a group of people wear costumes representing a character they create to participate in an agreed fantasy world. Uses foam sticks as swords, foam balls as magic and other props to create the games world.
Jeff Haden, writing at Inc.com, suggests that you can make an employee’s day with two words.
My suggestion: “You’re fired.”
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
If you are an employer, or an attorney representing employers (and if you’re reading this blog I’d bet dollars to donuts you fall into one of these categories), the Federal Courts Jurisdiction and Venue Clarification Act of 2011 [pdf] will significantly impact you. Congress passed this bill last week, and PrawfsBlog notes that President Obama expects to sign it into law.
Without getting overly technical (for those who are not familiar with how the removal of cases from state court to federal court works), with some limited exceptions, a defendant has the right to take a case originally filed in state court into federal court if the plaintiff could have filed the case in federal court in the first place. There are two types of cases a plaintiff is jurisdictionally permitted file in federal court: those based on the diversity of the parties (where no plaintiff is a citizen of the same state as any defendant, and the amount in controversy exceeds $75,000), and those based on a federal question (where a claim arises under the Constitution, laws, or treaties of the United States).
The JVCA will make some significant changes in how we remove cases to federal court:
For all removed cases:
For removed cases based on a federal question:
For removed cases based on diversity of citizenship:
It is no secret that employers and their lawyers usually prefer to be in federal court, and removal is often the way we get there. Because the JVCA will affect how we get certain cases into federal court, it is a significant development that warrants our attention. It will go into effect 30 days after President Obama signs it into law.
[Hat tip: @overlawyered]
The Court concludes that these isolated incidents, considered together, are just not severe or pervasive enough such that a reasonable jury could conclude that defendants created a hostile work environment. Accepting all of plaintiff’s evidence, no factfinder could determine that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe and pervasive so as to alter plaintiff’s conditions of employment.
How does a hip, cutting-edge company like Apple handle its employees’ use of social media? Apparently, pretty well. 9 to 5 Mac got its hands on the Apple Retail Blogging and Online Social Media Guidelines, and published the details. There’s a lot to read (it's a long policy), and a lot to like.
For example, Apple’s policy strikes an appropriate balance between the management of its reputation and respect for employees’ lives online or away from work:
In general, what you do on your own time is your business. However, activities that affect your job performance, the performance of other Apple employees, or Apple’s business interests are still covered by company policies and guidelines. This applies whether you engage in these activities in or outside of work, and whether or not you identify yourself as an Apple employee….
Be thoughtful about how you present yourself in online social networks. The lines between public and private, and personal and professional are blurred in online social networks. If you identify yourself as an Apple employee or are known to be one, you are now connected to your co-workers, Leaders and even Apple’s customers. You should ensure that content associated with you is consistent with Apple policies.
Apple’s concluding remarks for its employees serve as an excellent boilerplate for any company looking to implement a social media policy:
In sum, use your best judgment. Remember there may be consequences to what you post or publish online including discipline if you engage in conduct that Apple deems inappropriate or violates any Apple policies. If you’re about to post something and you are concerned whether you are following these guidelines or any Apple policy, please discuss it with your Leader or HR before posting.
All is not rosy with Apple’s policy, however. Tim Cook, if you’re reading, give me a call. I have some concerns over what the NLRB might say about the following piece of your policy and its potential to hinder employees’ rights to engage in protected concerted activity:
Respect the privacy of your coworkers. Blogs, wikis, social networks and other tools should not be used for internal communications among fellow employees. It is fine for Apple employees to disagree, but please don’t use your external blog or other online social media to air your differences. Do not discuss your co-workers without their permission, and ask permission before posting their picture. By respecting your co- workers’ privacy you will be helping to maintain the professional work environment at Apple.
Apple, you might want to reconsider a policy that gags your employees and prevents them from “using social media to air … differences.” You don’t want to end up as the biggest notch on the NLRB’s social media belt.
Wikipedia defines the “casting couch” as “the trading of sexual favors by an aspirant, apprentice employee, or subordinate to a superior, in return for entry into an occupation, or for other career advancement within an organization.” You shouldn’t need to be an employment lawyer to know that the casting couch is a big no-no, right? (Public service announcement: when searching Google Images for “casting couch,” make sure SafeSearch is set to “strict.”)
The ILSCCP Blog (which stands for the Illinois Supreme Court Commission on Professionalism) brings us the story of Samir Zia Chowhan, a (now suspended) Chicago immigration attorney. In his search for a new legal assistant, Mr. Chowhan posted an ad on Craigslist, entitled, “Loop lawyers hiring secretary/legal assistant.” Innocent enough? Did I mention that Mr. Chowhan listed the ad in the “Adult Gigs” section, and that the ad noted that the job called for “additional duties for two lawyers in the firm.”
In response to an email inquiry from a potential applicant, Mr. Chowhan described the “additional duties” the assistant would be expected to provide for him and his partner:
As this is posted in the “adult gigs” section, in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us.
Here’s where the story gets really bizarre. The email also described the firm’s unique interviewing process:
[A]s part of the interview process you’ll be required to perform for us sexually (i didn’t do this before with the other girls i hired, now i think i have to because they couldn't handle it). Because that aspect is an integral part of the job, I think it’s necessary to see if you can do that, because it'll predict future behavior of you being able to handle it when you have the job.
In his defense (insert sarcastic tone), Mr. Chowhan made it clear that previous hires “have not been able to handle the sexual aspect of the job” and that he did not “want you to do anything that you’re not comfortable with.”
One applicant, skeeved by the whole process, filed a complaint with the Chicago Attorney Registration and Disciplinary Commission, which resulted in Mr. Chowhan’s one-year suspension from the practice of law.
Am I alone in thinking that he deserved more?
The American Bar Association has published its list of the best legal blogs—the Blawg 100. For the second year in a row, I am honored to be selected. These are the kind words the ABA wrote about my blog (and me):
Even readers outside of Ohio will benefit from Clevelander Jon Hyman’s consistent employer-side posts and reading list roundups. Chicago-area lawyer and fan Tim Eavenson writes, “I made a joke once that my career motto was ‘Do whatever Jon Hyman does.’ When it comes to blogging, that’s not far off. Jon posts breaking news … before I’ve even gotten my coffee. Even when there’s 50 posts on a topic by noon, Jon’s take will be unique. Style-wise, Jon’s writing is exactly what employers are looking for: professional and personable. He writes plainly and has fun, but never lets it get in the way of the point. Anybody who pays somebody else should be reading Jon’s blog.”
Flattered? You bet!
The Labor & Employment category includes 8 other worthy reads:
If you are so inclined, register at abajournal.com and vote (through Dec. 30) for your favorite blawgs.
Here’s the rest of what I read this week:
Discrimination
Social Media & Workplace Technology
HR & Employee Relations
Wage & Hour
Labor Relations
If your business has employment practices liability insurance, or deals with insurance companies for other coverages, you are probably aware of the strange three-headed relationship that exists between you (the insured), your insurance company, and the attorney your insurance company hires to defend you in litigation. One question that always arises in this unique relationship is whether an attorney-client relationship only exists between the attorney and you (the insured), or if it also exists between the attorney and the insurance company. The answer to this question is significant, because if there is no attorney-client relationship between counsel and the insurance company, then the attorney-client privilege will not shield communications between them.
Conventional wisdom in Ohio has been that no attorney-client relationship exists between an insurance company and retained counsel. The seminal case on this issue was Swiss Reinsurance Am. Corp. v. Roetzel & Andress. Earlier this week, however, the Ohio Supreme Court—in State ex rel. Dawson v. Bloom-Carroll Local School District (11/29/11) [pdf]—flipped conventional wisdom on its head. The case focused on the issue of whether someone could compel disclosure, under Ohio’s public records law, of communications between a school district’s insurance carrier and its legal representative. It has much broader implications for the relationship between an attorney and an insurance carrier. The Court concluded that because an attorney-client relationship existed between the insurer and the insured’s retained counsel, the resulting privilege shielded any such communications from disclosure:
In effect, the insurance company stands in the shoes of the district…. Where a person approaches an attorney with the view of retaining his services to act on the former’s behalf, an attorney-client relationship is created, and communications made to such attorney during the preliminary conferences prior to the actual acceptance or rejection by the attorney of the employment are privileged communications.
This case solves a huge problem for employers’ insurance counsel, and consequently for employers. Under Swiss Reinsurance, and because of the lack of any privilege, communications between employment defense insurance counsel and the insurance company were made at the client’s risk. Thanks to a common sense ruling from the Supremes, these communications are now rightfully protected. Counsel should now be able to speak as freely with the insurer as we do with our clients.
In the spirit of the holiday party season, Mike VanDervort made the following challenge on his blog, The Human Race Horses: On November 30, 2011, write a blog post using the three-word theme of “Booze, Sex and HR.” This is my entry.
Life is full of perspective-defining events. Each chapter in one’s life creates a new perspective that helps shape each successive chapter. One of the chapters that helps define who I am as a management-side employment attorney is the three summers I worked during my college years at a Philadelphia t-shirt wholesaler. The first summer I ran myself over (true story) driving its beat-up delivery van. The next two summers I worked inventory. In retrospect, management must have figured that the college kid could count better than he could drive. The warehouse was full of colorful characters, including one whose idea of employee engagement was to hide buckets of KFC amid the racks of boxes (another true story), and another who complained about not receiving a raise by burning an effigy of the Jewish owner spray-painted with a swastika and the phrase “Die Cheap Jew” (yet another true story). And who could forget the African-American who was (not so) affectionately referred to as either “Ape” or “Gorilla” or simply “N—-er,” depending on people’s whims on any particular day. Suffice it to say this job provided a ton of perspective.
When I returned for my final summer, I noticed that one of the star employees was missing. When I asked what happened to him, I was told that he was fired following that year’s Christmas party. After over-indulging, he decided it was a good idea to strip down to his underwear, grab the owner’s wife on the dance floor, and, well, you can picture the rest.
There is no set of circumstances under which an employee can grind the boss’s wife without consent and in a state of semi-undress and enjoy any expectation of job security. Yet, all of the fault does not lie with this (rightfully terminated) employee. Employers must take some level of ownership over their employees’ holiday party antics when they make available the tools of overindulgence. Holiday parties are supposed to be a celebration of, and a thank you for, the past year. These celebrations and thank-yous do not have to be fueled by enough liquor to drop an elephant.
In this vein, I offer the following as a public service announcement for employers and HR departments everywhere:
Have a happy and safe holiday season.
