When drafting harassment policies, don’t forget about disabilities

I can’t tell you how many harassment policies I review (and rewrite) that are simply called, “Sexual Harassment Policy.” Most harassment complaints are about sexual harassment. But, the law just doesn’t forbid sexual harassment; it forbids harassment based on any category protected by the EEO laws. Thus, harassment based on race, religion, national origin, military status, age, disability, or any other protected class is just as illegal as harassment based on sex. Your harassment policy must account for them all. For example, last week the EEOC announced that it settled a disability harassment case for $70,000. In that case, the employee, who suffered from a major depression and social anxiety disorder, claimed that he was harassed because of his disability. Avoid these issues by reviewing and, if necessary, updating your harassment policy to account for all types of unlawful harassment.

You should pay attention to this post if you have unpaid interns

According to Law.com, wage and hour litigation is big, and getting bigger. One area that has been poised for a take-off for a couple of years is unpaid internships. Three recent filings illustrate the dangers of using unpaid interns in your business:

• A former unpaid intern for the “Charlie Rose” show has filed a lawsuit against the host and his production company. According to Steven Greenhouse at the New York Times Media Decoder Blog, the former intern claims that she was not paid at for the 25 hours a week she worked in the summer of 2007. The lawsuit seeks a class action on behalf of all unpaid interns who have worked for the show since March 2006.
• A former unpaid intern for the fashion magazine Harper’s Bazaar filed a similar lawsuit, claiming she worked full-time without any pay. Steven Greenhouse at the New York Times Media Decoder Blog quotes the lawyer who filed the lawsuit, “Unpaid interns are becoming the modern-day equivalent of entry-level employees, except that employers are not paying them for the many hours they work.”
• Last year, two interns who worked on the film Black Swan sued Fox Searchlight Pictures making similar claims.

The New York Times’s resident ethicist, Ariel Kaminer, calls this issue “the internship rip-off.”

Two years ago, I wrote how the Department of Labor was targeting employers who use the services of unpaid interns. As these examples show, workers (and their lawyers) have caught up.

In response to this spate of lawsuits, publishing giant Condé Naste has revised its guidelines for the use of unpaid interns. From The Atlantic, Condé Naste’s interns:

• Cannot stay at the company for more than one semester per calendar year.
• Must complete an HR orientation about where to report mistreatment or unreasonably long hours.
• Cannot work past 7 p.m.
• Must receive college credit.
• Must be assigned an official mentor.
• No personal errands.
• Will be paid stipends of $550 per semester.

These procedures might not be right for your organization. But, they highlight that you need to be thinking about these issues if you are a private sector, for-profit entity using, or considering using, interns. The rules haven’t changed; only they are now more widely known and are being enforced.

The best time to settle a case

I’ve long believed that the best time to settle a case is while summary judgment is pending. It’s when both sides have the most risk. The employer has the risk of a jury trial if the court denies the motion, and the employee has the risk of walking away with nothing if the court grants the motion.

Case in point—Webb v. Kentucky St. Univ. (6th Cir. 3/15/12) [pdf]. In Webb, the court granted the employer’s summary judgment motion while the parties were actively mediating the case. On appeal, the plaintiff argued that court abused its discretion in granting the motion while mediation was ongoing, which, in the plaintiff’s words, “makes a mockery of the mediation process.” The court of appeals disagreed:

Where, as here, the district court properly granted the summary judgment motion, the mediation process is not “sabotaged.” Instead, the district court does not waste judicial resources by preparing for trial where no genuine issue of material fact exists and the opposing party is clearly entitled to judgment as a matter of law.

The next time you receive settlement resistance from a plaintiff while a motion for summary judgment pends, you might want to forward a copy of Webb. Maybe it will grease the skids to a resolution.

WIRTW #217 (the “Statler and Waldorf” edition)

News moves fast. In today’s 140 character news cycle, a story has legs if it’s covered for more than a day. That we are on day two of the muppet manifesto tells you that this story resonates. Here’s some additional employment and HR related (and not so employment and HR related) coverage of Greg Smith’s noisy resignation from Goldman Sachs:

• Why I am leaving the Empire, by Darth Vader — from the daily mash
• Atomic Resignation Letters and the Disconnect Between Corporate Values and Performance… — from The HR Capitalist, Kris Dunn
• Disgruntled Goldman executive inspires copycats — from CareerDiva Eve Tahmincioglu
• Burning Bridges: The Perils of Ripping Your Employer Heading Out the Door — from TLNT
• Psychopaths on Wall Street — from Harvard Business Review
• Workplace experts weigh in on commentary by departing Goldman Sachs executive Greg Smith — from Corilyn Shropshire at the Chicago Tribune
• Bronze Medal Ping Pong GOD Bravely Resigns From Goldman Sachs — from Deadspin

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

Discrimination

• Flyer claims Chick-Fil-A asks potential hires about sexual history — from Eric Meyer’s The Employer Handbook Blog
• Believe It, Baby. Subjective Belief of Discrimination Ain’t Enough — from Molly DiBianca’s Delaware Employment Law Blog
• Oy Vay! Jewish Nursing Home Owns Up to Denying Religious Accommodation — from Joe’s HR and Benefits Blog
• What if you replace an older worker with another older worker? — from HR Cafe
• Fourth Circuit Emphasizes Necessity of Complaining about Sexual Harassment — from Maryland Employment Law Developments
• Paula Deen (insert cooking pun) Sexual Harassment Lawsuit — from Phil Miles’s Lawffice Space
• ESPN’s Stance on Discriminatory Remarks: Hitting the nail on the head, or a lack of consistency? — from The L•E•Jer

Social Media & Workplace Technology

• Don't be a twerp when you tweet — from Robin Shea’s Employment and Labor Insider
• If you’re a worker, you’re being Googled — from MarketWatch
• What Should You Do If Your Employer Asks For Your Facebook Password? — from ReadWriteWeb
• Infographic: How to train employees to handle social media — from Ragan
• Solutions to Mitigating Risk of Corporate Social Media — from Jessica Miller-Merrell’s Blogging4Jobs
• This Is Everything You Need To Know About Pinterest (Infographic) — from TechCrunch
• Pinterest for Social Recruiting — from Kara Mignanelli at Social Axcess
• When it comes to Social Media and Recruiting…Don’t Overthink It … Just Do It! — from Fistful of Talent

HR & Employee Relations

• Does It Matter That American Workers Get So Little “Official” Time Off? — from TLNT
• The Magic of Doing One Thing at a Time — from Harvard Business Review
• 17 Ways to Show Your Employees Appreciation — from Workplace Insights
• Mark Twain on employment reference law — from Walter Olson’s Overlawyered
• Turning a Termination into a Training Opportunity — from Dawn Lomer at i-Sight Investigation Software Blog
• Top Background Screening Survey: Criminal Records or Qualifications? — from Nick Fishman’s employeescreenIQ Blog
• “Can taking time off without permission get you fired?” — from Sklover Working Wisdom

Wage & Hour

• Are Homeless Hotspots Entitled To Minimum Wage? — from Wage & Hour Insights
• Can Employers Be Sued for Restricting the use of Certain Doctors for Disability Certifications? — from Jason Shinn’s Michigan Employment Law Advisor
• Are You an Employee or Independent Contractor? — from Legal Tastings – A Wine Law Blog

Labor Relations

• Breathe Deeply Before You Read: ALJ Finds At-Will Statement Violates NLRA — from Jonathan Segal
• Thinking About A Different World Under the NLRA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Waiting for the Dust To Settle on New NLRB Posting Requirement — from Dan Schwartz’s Connecticut Employment Law Blog

Until next week…

How to avoid your organization’s muppet manifesto

Beware the ides of March.
– Julius Caesar, Act I, scene i.

2,056 years ago, Julius Caesar was assassinated. To mark that occasion two years ago, I wrote that employers should be wary of the types of problem employees within their organizations. That lesson rings as true today as it did then: certain archetypes of employees bear a knife in the form of a potential lawsuit, or worse.

Yesterday, Greg Smith offered his resignation to Goldman Sachs by way of a scathing op-ed in the New York Times. The banking giant thought enough of Smith to include him in its college recruiting video and promote him from summer intern all the way to executive director. Yet, I’m certain it had no idea that he harbored a level of unparalleled disenchantment and dissatisfaction that led him to a very public (and embarrassing) resignation. Smith objected to a corporate culture of greed that included his colleagues privately referring to clients as “muppets” (hence, the press labeling Smith’s op-ed the “muppet manifesto”). I’m not here to defend Smith. In fact, his very public bridge burning should cause any prospective employer great pause before hiring him.

In my piece, Beware these types of problem employees, Smith is archetype number 10: the unhappy employee. You must know what’s going on with your employees. Be aware and tackle these problems head-on. Do not provide your employees the opportunity to stab you in the back.

Employees use of Facebook biggest time-suck, according to recent survey

According to a recent survey conducted by Salary.com, 64% of employees visit non-work related websites everyday during work hours. The biggest culprit is Facebook, at 41%. Of those who access personal sites during work, 68% spend as much as two hours per work day, with reasons that include not being challenged or satisfied, or being bored.

So, what is an employer to do about this? Banning access to personal websites is not practical. Employees will circumvent the ban by using their mobile devices, and will resent you on top of it. Instead, I suggest the following approach.

1. Accept this as reality. Employees spend long hours at work. Because of the prevalence of mobile devices, they will access Facebook and other personal websites whether you allow it or not. You cannot be Big Brother at all times, at all places, and with all employees. Instead of banning Facebook and the like, train your employees on the appropriate use of social networks and other non-work related sites, including the benefits your organization will realize from the work-related use social networks. 

2. Remove the incentive. If disengagement and boredom are the biggest causes of distraction, engage your employees and keep them busy. They will be more productive, you will be more profitable, and we won’t have to keep having these conversations. 

And, for more on these issues, my book, Think Before You Click: Strategies for Managing Social Media in the Workplace is available.

Discrimination is discrimination, period: rejecting the idea of “reverse” discrimination

At her Employment & Labor Insider, Robin Shea wrote a great post reminding everyone that it’s “illegal to discriminate against white people” (aka, reverse discrimination). But, did you know that courts impose different legal standards for discrimination against white employees than for discrimination against black employees? A non-minority employee asserting a claim of race discrimination “must demonstrate background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

Last I checked, EEOC stands for “Equal Employment Opportunity Commission,” not “Minority Employment Opportunity Commission.” A minority manager is just as capable of committing discrimination as a white manager. The law should not treat “reverse” discrimination any differently. Discrimination is discrimination. Applying different proof standards depending on the perpetrator of the alleged discrimination re-enforces the very stereotypes that our EEO laws intend to eradicate. Can we please remove from the law this idea of “reverse” discrimination, and just agree that discrimination is wrong regardless of the races of those accused of perpetrating it.

Reassignment as reasonable accommodation: mandatory or not?

Earlier this month, I wrote about the ADA and hiring preferences, pointing out that the disability discrimination laws do not prevent an employer from giving a hiring preference to a disabled job applicant by creating a cause for action in favor of a non-disabled applicant or employee. What happens, however, if you are not dealing with a disabled applicant, but a disabled employee who requests a transfer to an open position a reasonable accommodation? Are you required to overlook more qualified non-disabled employees and provide the transfer as a reasonable accommodation? The ADA's regulations provide that "reassignment to a vacant position" may qualify as a reasonable accommodation. But, that statement only begs the question of whether that accommodation is mandatory for employees who can longer perform the essential functions of their jobs, or just one part of the matrix of accommodations that an employer should consider.

Recently, in EEOC v. United Airlines [pdf], the 7th Circuit answered this question. In that case, the EEOC challenged United's "Reasonable Accommodation Guidelines," which provide that transfers to open positions are competitive, and that disabled employees will only receive "priority consideration over a similarly qualified applicant." The 7th Circuit concluded that this policy passes muster under the ADA: "The ADA does not require employers to reassign employees, who will lose their current positions due

to disability, to a vacant position for which they are qualified." 

The 6th Circuit appears to follow a similar approach. There exists, however, split among the federal courts, with a minority interpreting the ADA as requiring the transfer as a reasonable accommodation. What does this mean for your business? It means that this area of the law it unsettled. It means that if you are considering a transfer as a reasonable accommodation, your location will dictate the legality of your decision. It means that the Supreme Court will likely weigh-in on this issue at some point and provide some clarity (It tried to once, but the parties settled before the Court could rule). And, it also means that no matter the rule of law, you should ensure that the disabled employee is actually qualified for the position sought. No matter whether a transfer is discretionary or mandatory, no employee, disabled or not, is entitled to a job for which he or she is not qualified.

WIRTW #216 (the “one that got away” edition)

One piece of news you may have missed this week involved a lawsuit filed seeking to block the NLRB’s impending workplace rights poster. The District Court for the District of Columbia upheld the NLRB’s right to require the poster, but invalidated certain portions related to penalties for non-compliance. All hope is not lost, as a similar lawsuit awaits ruling in a different federal court. And, the courts of appeals will have to have their say. For now, however, the poster is still on track for its April 30, 2012, debut in your workplace.

For more on this issue, I recommend the following, who have already covered it in much greater detail than me:

• NLRB Posting and Goose/Gander Rule for Employer and Employee NLRA Rights — from Russell Cawyer’s Texas Employment Law Update
• Court Strikes Down Portions Of NLRB Notice Posting Rules — from Labor Relations Update
• Federal Court Upholds the NLRB’s Notice-Posting Rule, But Limits The Rule’s Enforcement Provisions — from Minnesota Employer
• District Court Partially Upholds/Blocks NLRB Notice-Posting Rule — from Labor Relations Today
• Posting Rule Upheld (Sort Of) — from Manpower Employment Blawg
• Update: Challenges to NLRB Posting Rule — from Employer Law Report
• Two out of Three is Bad: Judge Says Poster Goes Up — from Michigan Employment Law

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

Discrimination

• Can one anti-Semitic email make a tenable employee bias claim? — from Eric Meyer’s The Employer Handbook Blog
• Employment Discrimination Protocols for Discovery: They’re Coming — from Dan Schwartz’s Connecticut Employment Law Blog
• White guys need love too: Punitive damages and reverse discrimination — from Robin Shea’s Employment and Labor Insider
• Unemployed Status—The New Protected Class — from Labor Employment Law Blog
• Regarded-as disability and the ADA amendments — from Work Matters
• Direct threat with regards to employment discrimination — from Employment Law Bits
• Boys, Girls and Workplace Discrimination — from i-Sight Investigation Software Blog
• Why is Pregnancy Discrimination Still Happening? — from Fistful of Talent
• $168 Million Verdict In Single Plaintiff Termination Case — from California Employment Law

Social Media & Workplace Technology

• What Employers Are Thinking When They Look At Your Facebook Page — from Kashmir Hill’s The Not-So Private Parts
• Using Social Media to Screen Job Applicants – Yes or No? — from Unbridled Talent
• Should Cyber-Screening by Employers Be Legislated? — from Molly DiBianca’s Delaware Employment Law Blog
• The Problem’s Not Just Porn Anymore — from The Employer's Lawyer
• Off-Duty Blogging Creates Employer Harassment Liability — from Phil Miles’s Lawffice Space
• As Social Media Adoption Grows So Does Corporate Risk — from Jessica Miller-Merrell’s Blogging4Jobs
• The Anatomy of a Good Social Media Policy — from Social Media Today
• Steakhouse Waiter Fired For Showing The World What A Great Tipper Peyton Manning Is — from Deadspin
• Why You Should Check With Legal Before Searching Employee’s Emails — from LE Blog

HR & Employee Relations

• Bullies, Reputational Hijackings and Corporate Responsibility… — from The HR Capitalist, Kris Dunn
• How to Destroy Employee Morale in Four Easy Steps — from ABA Journal Daily News

Wage & Hour

• Ten Things Small Business Needs To Know About Minimum Wage and Overtime — from Wage & Hour Insights
• Have I Been Properly Labeled as an Exempt Manager for Overtime Purposes Under the FLSA? — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Donning + Doffing = Divided Decisions — from Smart HR Manager
• Does an Employer Violate the FMLA When an Employee Answers Email or Telephone Calls While on Leave? — from Jeff Nowak’s FMLA Insights
• New mandates for paid sick leave raise hackles — from MSNBC.com

Labor Relations

• Herding home care workers into unions — from Walter Olson’s Overlawyered
• Workers, and NLRB, Under Attack — from The Nation

The value in delivering good news

Yesterday started out pretty lousy. My kids were all bent of shape because the cable box wasn’t working and they couldn’t watch their morning cartoons with their breakfast. (Thinking back to when I was 3 and 5, I would have been out of whack too.) So I spent more than an hour on the phone with AT&T’s customer service, which is not how I intended to spend my morning. Needless to say, I was in a pretty sour mood when I got to the office.

That sour mood lasted until the mail came at 11:30. Yesterday’s mail included an opinion and order granting summary judgment in my client’s favor in a discrimination and retaliation case. Sadly, the opportunities to deliver really good news to a client are seldom. Hearing the elation in my client’s voice when I told him that he had been vindicated in his decision to terminate an employee is what makes this job worthwhile.

I am not telling this story to toot my own horn. I’m always proud of the work I do for clients, and whether a court grants or denies a summary judgment motion is out of my control. Instead, I tell this story to focus on the part we can control—the ability to deliver really good news.

Think about the last time you pulled an employee aside to offer praise. I bet it’s been a little while. It’s not your fault. We’re all busy, and just don’t think about communications with employees unless it’s performance-related. We get bogged down in the bad and ignore the good.

Today, I want you to take a minute to offer a deserving employee some good news. Whether it’s a pat on the back for a job well done, or some praise for going the extra mile on a project, or something else entirely, take a minute to brighten someone’s day. Then, report back on the value you found in the experience.

The importance of selecting the right counsel

No matter how good of an employer you are, no matter how well you treat your employees, and no matter how closely you try to follow the myriad laws that regulate your relationships with your employees, the harsh reality is that the fact that you are an employer means that you will get sued. Once you are sued, the first and most important decision you have to make is the choice of the lawyer who will defend you.

For example, consider Falzone v. Licastro (N.D. Ohio 3/4/12) [pdf], which dismissed an employee’s claims against his former employer. The lawyering involved in the briefing directly impacted the viability of the lawsuit:

At the outset, the Court observes that Falzone has greatly complicated the Court’s task.  His ten-page-long opposition to summary judgment does not contain a single heading, is littered with unsupported conclusory allegations, eschews legal analysis for paragraph-long block quotes, and, with a couple of exceptions, either fails to identify the portions of the record on which his claims depend or cites parts of the record so voluminous that the Court can only wonder what it should be looking for.... For this reason alone, a grant of summary judgment to Defendants on Falzone’s claims is appropriate. Nevertheless, because the Court can, on its own, piece together enough of this poorly developed record to address in substance most of Falzone’s claims, it will.

As Falzone illustrates, your choice of counsel can make or break your case. Choose wisely.

The worst idea ever? “Unionism” as a protected class

Last year I wrote a post entitled The Employer’s Bill of Rights. It remains one of the most read and most commented-upon posts in the five-year history of this blog. In that post, I argued that employers need certain protections from the litany of workplace rights enjoyed by employees. Many of those employee rights fall under the umbrella of “protected classes” — race, sex, pregnancy, national origin, religion, age, disability, genetic information, and (in Ohio, at least) military status. 

Last Wednesday, I came across an op-ed in The New York Times entitled, A Civil Right to Unionize. In this article, Richard Kahlenberg and Moshe Marvit opine that Title VII needs to be updated to include “the right to unionize” as a protected civil right:

In fact, the greatest impediment to unions is weak and anachronistic labor laws. It’s time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act….

Our proposal would make disciplining or firing an employee “on the basis of seeking union membership” illegal just as it now is on the basis of race, color, sex, religion and national origin.

Have I missed something? Isn’t it already illegal to discriminate against employees because of their union support? Indeed, it’s right there, in black and white, in the National Labor Relations Act:

8(a)(3): It shall be an unfair labor practice for an employer … by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.

With apologies to union supporters, there is no reality in which “unionism” exists on the same level as race, sex, disability, or the other protected classes. The “greatest impediment” to unions isn’t “weak and anachronistic labor laws.” It’s intelligent and strong-willed employees who understand that whatever benefit they might receive from a labor union is not worth the dues that come out of their paychecks.

And, the reality is that despite all of this pro-union rhetoric, labor unions are doing just fine without any additional help. Unions wins more than two-thirds of representation elections. All this proposal does is increase the burden for employers, without providing any appreciable benefit to employees — which is why I feel comfortable asking if this proposal is the worst idea ever.

Despite what some think, employers do not set out to discriminate

At her cleverly-named employee-side blog, Donna Ballman reported on a study published by the National Employment Lawyers Association—an association of plaintiff-side employment lawyers—which concluded that plaintiffs only win 15% of employment cases in federal courts. When Donna compared that number to the 51% win-rate in non-employment cases, she concluded that federal judges are hostile to plaintiffs in employment cases.

Donna’s post led to the following Twitter conversation between Donna, management-side attorney Jeff Nowak, and me:

I do not believe that federal court judges (or any set of judges, for that matter) possess a predisposed hostility towards plaintiffs in employment cases. To the contrary, the low win-rate of plaintiffs in these cases is more explained by the fact that most employers simply do not discriminate.

When I think back over my 15-year career representing employers, I can think only of a few (2 or 3) that set out to discriminate against an employee. (To be fair, many more committed sins of ignorance, acting not out of malice, but out of inexperience with the complexities of the myriad employment laws they are charged with understanding and following.) The reality is that lawsuits can result from well-intentioned employers making well-intentioned personnel decisions.

We live in a society where people are quick to blame others for their mistakes. People choose to litigate instead of accepting their own responsibility for a job loss. These ideas more likely explain the 15% win-rate for plaintiffs than any judicial predispositions for employers.

WIRTW #215 (the “Sam I Am” edition)

Today, Dr. Seuss would have been 108 years old. What does Dr. Seuss have to do with employment law, you ask? Believe it or not, I have an answer for you — More lessons from children’s lit: Dr. Seuss — which I wrote more than two years ago. Enjoy this oldie from the archives in honor of Dr. Seuss’s 108th birthday.

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

Discrimination

• Disabled-hiring “goals” for federal contractors — from Walter Olson’s Overlawyered
• Leave of Absence as Reasonable Accommodation for Disability? It Depends — from Employment Matters Blog
• Want Some Insight into the EEOC’s priorities in the Area of ADA and Leaves of Absence? Follow EEOC Commissioner Chai Feldblum on Twitter — from Jeff Nowak’s FMLA Insights
• On the EEOC radar: Pregnancy and caregiver discrimination — from John Holmquist’s Michigan Employment Law Connection
• When illegal interview questions are legal — from Evil HR Lady, Suzanne Lucas
• Linguistic Challenges in the Workplace — from Southwest Florida HR Law & Solutions
• Genetic Information Non-Discrimination Act (“GINA”) — from Texas Employer Handbook
• Three Steps That Will Help Prevent Sexual Harassment Problems — from Mike Haberman’s Omega HR Solutions
• EEOC’s Strategic Plan and 5 tips for employers seeking a good mediation — from Robin Shea’s Employment and Labor Insider
• Why appearance-based discrimination isn’t illegal — from i-Sight Investigation Software Blog

Social Media & Workplace Technology

• “Twitter Is Not Your Personal Playground,” ESPN Reminds Its Employees — from Deadspin
• Employer Is Liable for Off-Duty Harassment-by-Blog — from Molly DiBianca’s Delaware Employment Law Blog
• Social Media and the Workplace — from Security Management
• Top 5 Signs Lawyers Should Know About Pinterest — from Phil Miles’s Lawffice Space
• Pin with Caution, Says Lawyer Who Deleted All Her Pinterest Posts — from ABA Journal Daily News
• You can’t get Facebook login info based on a smiling profile pic — from Eric Meyer’s The Employer Handbook Blog
• Achieving Work Life Balance with Mobile Technology — from Jessica Miller-Merrell’s Blogging4Jobs
• iPad at Work: for the President at His Daily Briefing in the White House — from iPad Insight

HR & Employee Relations

• Could Pixar’s “Secret Story Guidelines” Work for Your Team? — from Harvard Business Review
• Tragedy in Chardon: a lesson for HR — from Warren & Associates Blog
• New York Court Finds Clinic Not Liable for Employee’s Disclosure of PHI — from Privacy Law Blog
• “Tail Coverage” Following Termination of Employment: What Physicians (and their Employers) Should Know? — from Health Employment and Labor
• Employee handbooks – just when you thought it was safe… — from HR idiot
• Does Paternity Leave Hurt Women? — from The Juggle
• Debate Over Sick Leave Intensifies — from Sarah Needleman in the Wall Street Journal

Do you know? The ADA and reverse discrimination

Earlier this week, the EEOC published Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers. In this guide, the EEOC asks the following question:

May a private employer give preference in hiring to a veteran with a disability over other applicants?

According to the agency, the answer is “yes.” The ADA does not prohibit “affirmative action on behalf of individuals with disabilities. Nothing prohibits an employer from hiring an individual with a disability who is qualified over a (presumably less) qualified applicant without a disability.

If you think about, this statement makes a lot of sense. Title VII prohibits reverse discrimination because it makes no differentiation on the basis of majority or minority status. It merely prohibits discrimination on the basis of race/sex/religion/national origin. The ADA, on the other hand, only protects the disabled. For one to be covered by the ADA, one must meet the specific statutory definition of “disability.”

If this difference was not already clear enough, the ADAAA added a section to the statute expressly stating that the ADA does not protect those who claim discrimination because of a “lack of disability.”

The EEOC’s guide is worth a quick read. It offers some excellent pointers on how to handle the recruiting, hiring, and accommodating of anyone with a disability — whether veterans or civilians.

Today is “exempt employees work free” day

Even though the modern calendar contains 365 days, it actually takes 365 days and 6 hours for the earth to complete one rotation of the sun. To account for these extra 6 hours, every 4 years contains 366 days, not 365 (to be precise, it’s years divisible by 4 or 400, but not 100). This extra day is known as Leap Day (which happens to be today).

I had an entire post written for today about the wage and hour implications of this quadrennial tradition. I was going to tell you all about how exempt employees don’t really get paid for leap days, because their annual salary is based on a 365-day cycle. Then Dan Schwartz beat me the to punch. I know I’ve scooped Dan before, so I figure turnabout is only fair. Plus, when the Yankees are watching the Phils (hopefully on their televisions) hoisting the World Series trophy in October, I’ll have the one that matters anyway. Right Dan?

In the wake of a tragedy, more on humanity and human resources

Yesterday was a tragic day in Northeast Ohio. I extend my thoughts and prayers to anyone affected by the horrors at Chardon High School.

Today, Chardon’s schools are closed. Kids will be home from school. Some, because their parents will be working, will be left to deal with their grief in solitude, trying to understand and come to terms with what they witnessed. Neither the FMLA, nor any other leave law in Ohio, covers these circumstances.

Last week, I wrote about the need to put the “human” back in human resources. For any company that has employees with children who attend Chardon schools, today is great day to start down this path of humanity. Forget what the law does or does not require of your employees, and allow them the day to spend with their grieving, angry, and confused children. What you might lose in productivity your employees will repay you in gratitude and good will.

6th Circuit: Employee must know about harassment to complain about it

Berryman v. SuperValu Holdings, Inc. (6th Cir. 2/24/12) [pdf] concerns the racial harassment allegations of 11 different employees, spanning 25 years. The allegations included vulgar graffiti, overtly racist comments by coworkers, and racially motivated pranks. Taken together, the allegations painted the picture of a workplace rife with severe, pervasive racially hostile behavior. The problem for these 11 plaintiffs, however, was that none were personally aware of the alleged hostile environments alleged by the other 10. Thus, the Court concluded that it was improper to aggregate their allegations into one over-arching hostile work environment:

In short, a plaintiff does not need to be the target of, or a witness to harassment in order for us to consider that harassment in the totality of the circumstances; but he does need to know about it.

This case does not alter your legal responsibilities to respond and react to a hostile work environment. If you learn that you have employees …

• Hanging an “effigy of an African American supervisor.”
• Writing “nigger” on the floor.
• Displaying drawing of people with “large lips and nappy hair.”
• Posting “pictures of monkeys” alongside “a picture of police cars chasing O.J. Simpson.”

… you have to do something about it. You have to investigate and you have to take real and effective corrective action to stop it from continuing or happening in the future.

This case, however, illustrates an important and often misunderstood point. The law only protects employees who are exposed to a hostile work environment. It only provides a remedy to employees who know of (first-hand or second-hand) the offensive conduct. It does not provide a remedy to every employee who enjoys the coincidence of being employed in a workplace that happens to be hostile to others.

WIRTW #214 (the “errata” edition)

A few weeks ago I gave a presentation about legal blogging to the Ohio Women’s Bar Association Leadership Institute. During my talk the question arose of whether I’ve ever made a mistake, and, if so, how I handled it. I spoke of one incident when something I had written was incorrect. I also spoke of the importance of transparency with my readers, and my willingness to fall on my sword and admit that I was wrong (my wife will tell you this isn’t always easy for me).

Today is post number 1,365 (yikes). When you write as much as I do, something is bound to fall through the cracks every now and again. An astute reader pointed out an omission from Monday’s post on holiday pay. I wrote that because paid holidays are discretionary, there is no legal requirement that you have pay non-exempt employees for holidays off. That statement is true, but not if you pay the non-exempt employee a fixed salary pursuant to a fluctuating workweek calculation. In that instance, you must pay the employee for any holidays off, or risk the fluctuating workweek status and the overtime calculation benefits that come with it. For more on the fluctuating workweek, I recommend Robert Fitzpatrick’s excellent white paper [pdf] on the topic.

The way I figure it, I’m batting .999, MVP-like numbers no matter how you slice it.

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

Discrimination

• Has the Expanded Definition of Disability under the ADAAA Gone Too Far? — from Russell Cawyer’s Texas Employment Law Update
• With DSM-5 on the Way, Is It Time to Update Definition of “Mental Disability”? — from Dan Schwartz’s Connecticut Employment Law Blog
• Supervisor’s advice to sexually-harassed employee: “Pray…” — from Eric Meyer’s The Employer Handbook Blog
• Asking for a doctor’s note explaining a health-related absence can violate the ADA — from Warren & Associates Blog
• Employee’s inability to work overtime is not a per se disability under the ADA — from Employment Law Matters
• 12 Tips to Lower Legal Bills, Assist Lawyer in Employment Disputes — from HR Hero Line
• Lent, Catholicism, Religious Accommodations — from LaborRelated
• Title VII and Contraceptive Coverage — from The Proactive Employer Blog
• Why Genetic Discrimination Is Illegal — from Time

Social Media & Workplace Technology

• Social Media Policies: The Latest — from Manpower Employment Blawg
• Tech Co Daxko’s Social Media Policy Like TV’s Tattoo — from Fistful of Talent
• Why corporate Facebook policies are stupid — from Jay Shepherd’s Gruntled Employees
• Social Media And The Fight To Be First — from Social Media Employment Law Blog

HR & Employee Relations

• Employee Handbooks Revisited: Damned If You Do, Damned If You Don’t — from Mike Haberman’s Omega HR Solutions
• Promoting a Culture of Security: Is It the Most Important Step in Protecting Trade Secrets? — from Trade Secret Litigator Blog
• When is it okay to quit without giving notice? — from The Evil HR Lady, Suzanne Lucas

Wage & Hour

• Exploring an Employer’s Obligations to Pay Accrued Vacation and Severance under Michigan Law — from Jason Shinn’s Michigan Employment Law Advisor
• When is the Minimum Wage Not the Minimum Wage? — from Stephanie Thomas at Compensation Cafe
• Another Call Center Case Focuses On Off The Clock Working Time — from Wage & Hour - Development & Highlights
• IRS to Employers: Raise Your Hand If You’ve Misclassified Workers — from Delaware Employment Law Blog
• Summary of 2011 FMLA Cases: Valuable Resource to Employers — from Jeff Nowak’s FMLA Insights
• Stephen Colbert Provides Reminder That Family Medical Leave Is Not A Laughing Matter — from California Employment Law Report
• DOL’s “Updated” FMLA Forms List New 2015 Expiration Date — from New York Labor and Employment Law Report

Labor Relations

• By George! Here’s an angle on NLRB/social media that I bet you haven’t thought of — from Robin Shea’s Employment and Labor Insider
• Research Reveals How Labor Unions Use Social Media — from Jessica Miller-Merrell’s Blogging4Jobs
• Your Position at the Bargaining Table May Open the Door to a Broad Request for Information From the Union — from Trade Secret / Noncompete Blog

NLRB refuses to expand representation rights to non-union employees during investigatory interviews

The NLRB’s Acting General Counsel continues to try to chip away at the rights of non-unionized employers. His latest involves an attempt to expand Weingarten rights to non-unionized employees. What are Weingarten rights, you ask? They are the rights of employees to have union representation during an employer’s investigatory interview. In 2000, the Clinton-era NLRB expanded these rights to employees at non-unionized workplaces. Unsurprisingly, non-union employers lost their collective minds. Less than four years later, however, George Bush’s NLRB restored sanity by reversing that ruling and again limiting Weingarten rights to union shops only. It was only a matter of time before someone tried to swing the Weingarten pendulum again. This time, however, the NLRB didn’t take the bait.

In Praxair Distribution, Inc. (2/21/12) [pdf], the NLRB’s Acting General Counsel argued that the employer denied a non-union employee his Weingarten rights when it refused to allow him to make a phone call in connection with an investigatory interview. The NLRB clearly and unequivocally refused to expand the protections of Weingarten to non-union employees:

Under existing case law, Weingarten rights do not apply to unrepresented workers such as the employees of the Praxair operation involved here.

Now, if we can only get the Board to rein in its Acting General Counsel on the scope of appropriate workplace social media policies, we’ll really have something to celebrate.