$27,000 buys a lot of chalupas: Taco Bell settles religious discrimination lawsuit with EEOC

Last year, I discussed lawsuit filed by the EEOC agains a North Carolina Taco Bell franchise, claiming that it had failed to accommodate an employee's religion by requiring him to cut his hair.

Last week, the EEOC announced that it had settled the charge on behalf of the employee:

According to the lawsuit, Christopher Abbey is a practicing Nazirite who, in accordance with his religious beliefs, has not cut his hair since he was 15 years old.... When Abbey explained that he could not cut his hair because of his religion, the company told Abbey that unless he cut his hair, he could no longer continue to work at its Taco Bell restaurant....

In addition to monetary damages ($27,000), the two-year consent decree resolving the suit requires Family Foods, Inc. to adopt a formal religious accommodation policy and conduct annual training on Title VII and its prohibition against religious discrimination and retaliation in the workplace....

Does your workplace have a religious accommodation policy? Do your managers and supervisors know how to accommodate an employee's sincerely held religious beliefs (as long as it does not impose an undue hardship)? Do your managers and supervisors even understand that they have a legal obligation to accommodation employees' religious beliefs?

If you answer "no" to any of these questions, you should consider this case a reminder of your religious accommodation obligations under Title VII (and similar state laws). Implement a religious accommodation policy. Train your managers and supervisors on what that policy means and how they need to implement it. The EEOC is watching. Taking these two simple steps will help keep you off the agency's bothersome radar.


 

Honestly, we didn’t discriminate

The “honest belief rule” is one of most effective shields available to employers in discrimination cases:

As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.

To be effective, however, an employer must harness its “honest belief” properly. Consider Brooks v. Davey Tree Expert Co. (4/17/12), in which the 6th Circuit determined that an employer was not entitled to argue its honest belief in defense of an age discrimination claim.

According to the 6th Circuit in Brooks, the honest belief rule has limits:

[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Although we will not “micro-manage the process used by employers in making their employment decisions,” we also will not “blindly assume that an employer’s description of its reasons is honest.”

In Brooks, the 6th Circuit concluded that the employer was not entitled to the benefit of the honest belief rule, because it could not “point to specific facts that it had at the time the decision was made which would justify its belief in the proffered reason.”

What’s the lesson for employers? If you want to be able to argue that your honest belief justifies your decision, you better be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence, is best. As if you need another reason document, document, and document some more?

Woman fired for IVF will test bounds of Title VII’s ministerial exception

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Ohio Employer’s Law Blog. Yet, despite my management-side tendencies, I call ‘em as I see ‘em, and every now and again a story about an employer’s treatment of an employee outrages me. This is one of those stories.

According to ABC News, an Indiana Catholic church has fired one of its school teachers, Emily Herx, after it learned she was undergoing fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church official told that her attempt to become pregnant through in-vitro fertilization made her a “grave, immoral sinner.” According to the lawsuit, when Herx appealed her termination to the Bishop, he called IVF “an intrinsic evil, which means that no circumstances can justify it.”

If those two statements are true, there should be little doubt that the church fired Herx because of her IVF treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

1. Does Title VII’s prohibition against sex and pregnancy discrimination cover IVF treatments?
2. Does Herx’s employment falls outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

On the first issue, I defer (as will the court) to the 7th Circuit’s 2008 decision in Hall v. Nalco Co., which concluded that Title VII’s pregnancy discrimination amendments cover IVF as a medical conditions related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures, such as IVF treatments.

This case, however, is complicated by the fact that Herx’s IVF is contrary to the doctrine of her religious employer. According to Herx’s lawsuit, she worked as a secular literature and language arts teacher. She is not Catholic, never taught any religion classes, and was not required to complete any training or education in the Catholic faith as a condition of her employment. If there is nothing religious about Herx’s employment or responsibilities, it would seem that her job falls outside the ministerial exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed, this is exactly what the Southern District of Ohio held in a strikingly similar case just last month.

To prevail under the ministerial exception, the Diocese will have to convince the court that all of its teachers, even those of a different faith like Herx, serve as “moral exemplars” for its students. Rick Garnett, associate dean and professor of law at Notre Dame Law School, articulates this argument:

A lot of Catholic schools … every teacher brings the kids to Mass, is involved in sacramental activities…. It’s not just one teacher who teaches religion, religion is pervasively involved. The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision. [Huffington Post]

This case will be fascinating to follow, much more so for the religious implications than for the pregnancy discrimination implications. Whether Title VII protects a woman’s right to undergo fertility treatments is a fairly well-settled issue. Whether a Catholic Church has to provide that right to its secular employees, however, is open to vigorous debate. As someone who thinks that people should not have to choose between having a family and holding a job, I am rooting for Emily Herx.

WIRTW #223 (the “or are you just happy to see me” edition)

This has been a busy week in employment law land, with the EEOC protecting transgendered employees and announcing its long-awaited guidance on the use of arrest and conviction records in employment decisions. Yet, the most tantalizing story of the week comes from Murfreesboro, Tennessee, where an unfortunately-named county employee, Bill Boner, was accused of sexual harassment. The Murfreesboro Post settled on the headline, Boner rejects sexual harassment allegations. Thankfully, jimromenesko.com is all over this story to bring you the unprintable headlines the The Murfreesboro Post rejected (really):

• Boner Says Women Faking It
• Female Workers Say Boner Intimidated Them
• Boner Taking It Hard
• Sticky Situation for Boner
• Boner: “It’s Hard … on My Wife”
• EEOC to Probe Boner

There’s nothing funny about sexual harassment. But, if you can’t giggle about this story, you’re in the wrong line of work.

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

Discrimination

• Connecticut Supreme Court Stakes Out “Similarly Situated” and Statistical Standards — from Dan Schwartz’s Connecticut Employment Law Blog
• Breakdown of EEOC Guidance on Criminal Background Checks — from Nick Fishman at employeescreenIQ Blog
• The Broad Boundaries of Discrimination in the Workplace — from Dawn Lomer at i-Sight Investigation Software Blog
• Lawsuit Filing: Woman fired after donating kidney to her boss — from Chris McKinney’s Texas Employment Law Blog
• Failure to provide timely COBRA notice, retaliation? No, Sensei!!! — from Eric Meyer’s The Employer Handbook Blog
• Pregnant Employees Make Very Sympathetic Plaintiffs — from Labor & Employment Law Perspectives
• Attendance May be an Essential Function of the Job — from Employment Matters Blog
• EEOC charge against you? It need not turn into a long, costly war — from HR Cafe

Social Media & Workplace Technology

• Facebook Message Leads to Disability Claim — from Molly DiBianca’s Delaware Employment Law Blog
• U.K. Judge Allows Suit to be Served via Facebook — from Ethan Wall’s Social Media Law & Order
• Socializing Over State Lines: Social Media as a Basis for Personal Jurisdiction — from Augmented Legality
• California Provides Social Media Guidance for Financial Institutions — from Socially Aware Blog
• Employer’s Duty to Report Crimes: Employee Using a Personally-Owned iPad for Work Purposes — from From the Sidebar
• 1 In 3 Employers Reject Applicants Based On Facebook Posts — from AOL jobs

HR & Employee Relations

• Is that a whistle in your pocket? — from Walter Olson’s Overlawyered
• An Employer’s Response Guide to Whistleblower Claims — from Jason Shinn’s Michigan Employment Law Advisor
• Your BMI is 35: Should You Pay More For Healthcare? — from The HR Capitalist, Kris Dunn
• Does Smoking Affect Your Employability? — from The Proactive Employer Blog
• Worker’s Suit Claims His Boss Took over His Computer and Placed the F-Word on It — from ABA Journal Daily News
• Valve’s “Handbook for New Employees” leaked, hilarious illustrations included — from The Verge
• Dear Evil Skippy: Is It Illegal To Go Through My Employee’s Desk — from Evil Skippy at Work
• Oops!! Sorry – We Just Laid Off the Entire Staff via Email — from TLNT
• Just Because You Can, Does Not Mean You Should: What Non-Compete Lawyers and Their Clients Can Learn From Bo Ryan and “Transfergate” — from Trade Secret Litigator Blog

Wage & Hour

• Anatomy of a Wage and Hour Complaint — from Casey Sipe’s The Employer’s Lawyer
• Huffington Post Wins Victory In Bloggers’ Compensation Suit — from Wage and Hour Law Update
• Wage and Hour Cases ─ Not Going Away Anytime Soon — from The Wage and Hour Litigation Blog
• A Start-Up Nightmare: the Department of Labor Audit and How to Avoid It — from Social Media Today
• Nail Salon Must Pay Almost $236K After Court Rejects Immigration Defense Under FLSA — from Smart HR Manager
• What Does It Mean to Sell? Ask the U.S. Supreme Court — from Harvard Business Review Blog

Labor Relations

• NLRB issues guidance on new election rules, take effect April 30 — from Mike VanDervort’s The Human Race Horses
• Do You Know Your Rights? – NYT Editorial on NLRB Notice Posting Rule (Guess Whose Side They’re On?) — from Labor Relations Institute
• Senate Rejects Resolution That Would Have Nullified the NLRB’s Revised Election Rules — from Wyatt Employment Law Report
• Labor Board Meets Rising Resistance — from The Wall Street Journal
• Obama’s Renegade NLRB Is Disrupting the Recovery — from U.S. News & World Report
• Micro Union Case Hits Federal Court Of Appeals — from Labor Relations Update

EEOC announces new guidance on the use of criminal background checks under Title VII that focuses on individualized assessments of past crimes

Yesterday afternoon, the EEOC announced its long awaited, and, by employers, long dreaded, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (along with a short and sweet Q&A).

The Guidance is not nearly as bad for employers as it could have been. Anyone who feared that the agency would over-reach and proclaim that pre-employment criminal background checks per se violate Title VII will be greatly relieved. As SHRM points out:

SHRM is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.

Nevertheless, the Guidance is not perfect. For example, “as a best practice, and consistent with applicable laws,” the EEOC “recommends that employers not ask about convictions on job applications.” While I certainly appreciate the EEOC’s recommendation, I’m not sure what “applicable laws” it references. This attempt to codify “ban the box” is one clear example where the EEOC is over-reaching.

Perhaps the most controversial piece of the new Guidance is the EEOC’s belief that to survive a potential disparate impact claim, employers must develop a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.

In engaging in this individualized assessment, the EEOC directs employers to consider the following factors:

Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.

Other relevant individualized evidence for employers to consider includes:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age at the time of conviction, or release from prison;
• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense or conduct;
• Rehabilitation efforts (e.g., education/training);
• Employment or character references and any other information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or local bonding program.

I’m not aware of any requirement under Title VII that requires an individualized assessment in all circumstances. In the EEOC’s opinion, however, forgoing a screen that includes the individualized assessment will make it difficult, if not impossible, for an employer to justify a criminal background check as job related and consistent with business necessity. Yet, applying this individualized assessment for all applicants will impose a heavy burden on employers. And, the greater an employer’s attrition and hiring needs, the heavier that burden will become.

The EEOC concludes by suggesting some best practices for employers who consider criminal record information when making employment decisions:

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• The policy should Identify essential job requirements and the actual circumstances under which the jobs are performed.
• The policy should also determine the specific offenses that may demonstrate unfitness for performing such jobs, and the duration of exclusions for criminal conduct.
• Record the justification for the policy, procedures, and exclusions, including a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

There is a lot to digest in this comprehensive policy guidance. For example, the EEOC discusses the differences between arrest records and conviction records, and provides specific examples of exclusions that will and will not fall under the umbrella of job related and consistent with business necessity.

This Enforcement Guidance is required reading for any business that takes arrest or conviction records into consideration in any employment decision.

EEOC pronounces protections for transgender workers

Title VII does not, on its face, protect transgender workers from discrimination. Increasingly, however, courts have extended its protections under the umbrella of Title VII’s protections against sex-stereotyping-as-gender-discrimination, as first explained 23 years ago by the U.S. Supreme Court in its landmark Price Waterhouse v. Hopkins decision:

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

Earlier this week, the EEOC made what might be the most significant pronouncement to date on the issue of the protection of transgender as gender discrimination. Macy v. Holder [pdf] involved a transgender woman, Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms denied her a job after she announced she was transitioning from male to female.

In reinstating Macy’s Title VII claim, the EEOC concluded:

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort….

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex,” and such discrimination therefore violates Title VII.

While this opinion is not binding on courts, one cannot overstate the significance of the fact that the agency responsible for enforcing the federal EEO laws has made this broad pronouncement. Many employers operate under the belief that they are free to discriminate on the basis of sexual orientation or gender identity because Title VII lacks no facial prohibition. As this case illustrates, that belief, no matter how commonly held, might be mistaken.

The EEOC and I disagree on a lot. (See criminal background checks as hiring criteria). Yet, on this issue, we are on the same page. It strikes me as appalling that in the year 2012 there are still minority groups against whom it remains facially legal to discriminate. Already, 21 states prohibit sexual orientation discrimination in employment, 16 of which also prohibit gender identity discrimination; another 140 cities and counties have similar laws. Many companies have also made the private decision to prohibit this type of discrimination in their individual workplaces.

For the uncovered, this EEOC decision signals that the time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

[Hat tip: The Proactive Employer / Stephanie Thomas]

“Eat Shop Sleep” underscores the importance of proactively addressing wage and hour issues

You might want to pay attention to the Department of Labor’s latest press release.

The U.S. Department of Labor’s Wage and Hour Division is launching an enforcement and education initiative focused on the restaurant industry in the Los Angeles area to ensure compliance with the Fair Labor Standards Act’s minimum wage, overtime, record-keeping and child labor provisions. Under this initiative, the division will be conducting unannounced investigations at [Los Angeles area] restaurants.

What jumps out the most from the press release is the following statistic:

In the past six years, … the division conducted more than 1,800 investigations of restaurants along the West Coast and found that 71 percent were violating the FLSA, resulting in more than $12 million in back wages owed to more than 9,500 employees.

What’s amazing to me is that the percentage of non-compliant employers is only 71 percent. I remain convinced, as I’ve pointed out before, that I can walk into any company and find a wage and hour violation. The FLSA and its regulations are that complex, twisted, and anachronistic.

For this reason, even if you aren’t a restaurant operator in the Los Angeles area, you need to pay attention to, and get out ahead of, these issues. You cannot predict when, why, or who the DOL will audit. What can you do? Take a detailed look at all of your wage and hour practices: employee classifications, meal and rest breaks, off-the-clock issues, and any child workers. Make sure you are 100 percent compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney who knows these issues to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

[Hat tip: Social Media Employment Law Blog]

As the public policy turns

Last summer, in Alexander v. Cleveland Clinic Foundation, the Cuyahoga County Court of Appeals held that a police officer, fired after several outbursts while working traffic control, could proceed to trial with his wrongful discharge claim. He claimed that because his termination jeopardized the state’s public policy in favor of police officers enforcing the law, he should have been able to pursue his public policy wrongful discharge claim.

Three months later, the Ohio Supreme Court decided Dohme v. Eurand America, holding that to support a wrongful discharge claim, a plaintiff must identify the specific federal or state constitutional provisions, statutes, regulations, or common law that support the public policy relied upon.

Following Dohme, the Ohio Supreme Court vacated the appellate court’s decision and set it back to the appellate court for a re-do.

Second verse, same as the first. In Alexander v. Cleveland Clinic Foundation II (4/19/12) [pdf], the same panel of the same appellate court again concluded that Alexander was entitled to proceed to trial on his public policy claim.

Pursuant to Dohme, the court considered whether Alexander had clearly supported his public policy argument with a specific statement of law from the federal or state constitution, statutes, administrative rules and regulations, or common law:

Alexander claimed that public policy dictates that police officers enforce the laws of the state of Ohio; thus, discharging a police officer for enforcing the laws “would jeopardize the public policy of wanting police officers to enforce Ohio laws.” … Alexander cited R.C. 1702.80(D) in support of his public policy argument. The statute … provides that … a qualified nonprofit corporation … police department … “shall preserve the peace, protect persons and property, enforce the laws of the state.” … [H]ere, Alexander cited to “a specific statement of law” that was drawn from R.C. 1702.80(D).

The takeaway for employers—Ohio or otherwise—hasn’t changed since I first reported on Alexander last year:

Public policy wrongful discharge claims often hinge on the combination of two influences: the creativity of the employee’s attorney to pigeonhole the circumstances surrounding the discharge into a specific state or federal constitution, statute or administrative regulation, or in the common law; and the court’s opinion of that particular public policy.

The unpredictability of these claims underscores the need for employers to treat every termination like a potentially litigious event.

WIRTW #222 (the “exhausted” edition)

Federal jury trials are exhausting. Looking forward to getting my life back.

Here’s what I read this week (during my down time, on my iPhone):

Discrimination

• New Theory of Discrimination: “Implicit Bias” — from Stephanie Thomas’s The Proactive Employer Blog
• Wall Street Journal Takes the EEOC to Task on Background Checks — from Nick Fishman’s employeescreenIQ Blog
• EEOC: Employers have no right to ask what prescription drugs employees are on — from Walter Olson’s Overlawyered
• Even a voluntary demotion can lead to a retaliation claim — from Eric Meyer’s The Employer Handbook Blog
• Happy (?) Equal Pay Day! — from Maryland Employment Law Developments
• 4 Things Employers Should Know About the ADAAA — from Workplace Insights
• Can an employer insist on regular attendance without violating the ADA? Maybe. — from Robin Shea’s Employment and Labor Insider
• Inside the Racist Mind — from Time

Social Media & Workplace Technology

• Does a Social Media Policy for Employees Apply to Contractors? — from i-Sight Investigation Software Blog
• Anatomy of an Employee Facebook Password Protection Law — from Phil Miles’s Lawffice Space
• Employers requesting Facebook passwords — from George’s Employment Blawg
• Are Employer Social Networking Accounts Protectable Trade Secrets? — from Trade Secrets and Noncompete Blog
• I Get It: 4 Ways I Can Tell You Don't Like Voice Mail (and what I think about each of them...) — from The HR Capitalist, Kris Dunn
• Is the boss spying on you? Cyber-snooping on rise — from the Palm Beach Post

HR & Employee Relations

• Why Pet Insurance Makes Sense as Part of Your Menu of Employee Benefits — from TLNT
• Just because you’re paranoid doesn’t mean they aren’t out to get you — from Evil HR Lady, Suzanne Lucas
• Employers Provide Too Little Leave — from Mike Haberman’s Omega HR Solutions
• To Handbook or Not to Handbook — from The Employer's Lawyer
• Employee Handbooks: do’s and dont’s — from Warren & Associates Blog
• Dear Evil Skippy: How Do I Avoid Offending Sensitive Co-Workers? — from Evil Skippy at Work
• Office Romances On The Rise Among Young Employees — from Fox Business

Wage & Hour

• Overtime Lawsuits On The Rise — from Overtime Lawyer Blog
• The Buddha and the Fair Labor Standards Act — from Work Matters
• Keep an Eye Out for Court’s Ruling on Pharmaceutical Sales Rep. Case — from Dan Schwartz’s Connecticut Employment Law Blog
• Clocking in early: a recipe for bogus overtime claims — from HR Cafe

Labor Relations

• Court Upholds Non-Employee Property Access Rights — from Labor Relations Update
• The NLRB and social media: The next phase and more scrutiny — from John Holmquist’s Michigan Employment Law Connection

The Bachelor as discrimination? Publicity stunt lawsuit undermines legitimate discrimination claims

This week, two African-American men filed what their attorney calls a "landmark civil rights case that will move social justice and economic equality forward." The class action lawsuit, Claybrooks v. American Broadcasting Companies, claims that The Bachelor franchise purposefully discrimination against people of color. You read that last sentence correctly. Apparently, casting some color on The Bachelor will cure all of society's discriminatory ills.

Does The Bachelor skew white? Absolutely. Are their other reality shows that skew black, or latino, or gay? You bet. Do any of them technically "discriminate" in their casting choices? Probably, because they are targeting a certain demographic for their audience. Just like The Bachelor has not cast many African-Americans, it also has not cast any septuagenarians. Why? Because their target audience would not watch, and the show would be taken off the air.

This is not discrimination. It's marketing. It's no different than McDonald's running an advertising campaign with an urban music bed and all all-Black cast.

Publicity stunts like this lawsuit undermine the real plight of African-Americans and other minorities, both in the workplace and society in general. If protected groups want people to take discrimination seriously, and treat it as a serious problem, they need to stop screaming discrimination for things like reality television casting decisions.

I’m syndicated! Announcing my launch on Workforce.com as The Practical Employer

For content, they say that five years is the magic number. For example, after five years, television shows are eligible for syndication. Apparently, the same holds true for employment law blogs, as mine will turn five in a few weeks.

This week, Workforce.com—one of the web’s most distinguished portals for all things human resources (and part of the Crain Communications family)—debuted me as one of its featured bloggers, under the title The Practical Employer.

I’m beyond thrilled, and honored, to join their exclusive club, alongside the likes of Kris Dunn, Ann Bares, and Fistful of Talent.

Thanks to Kris Dunn for introducing (and recommending) me to the Workforce people. Thanks also to the staff at Workforce.com, who’ve been great to work with while they got my micro-site up and running.

Never fear. The Ohio Employer’s Law Blog is not going anywhere. You now just have another way to read my content. Either here, or at Workforce.com, as The Practical Employer.

Don’t post those new NLRB notices—finally

On Monday, I reported that a South Carolina federal court had invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act. I cautioned that until you heard otherwise, employers should assume that April 30 was still a go for the new posting.

News moves fast in the world of labor and employment law. Yesterday, the D.C. Circuit [order, pdf] enjoined the whole shebang until the issues can work their way through the appellate courts:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect. That postponement is in some tension with the Board’s current argument that the rule should take effect during the pendency of this court’s proceedings before this court has an opportunity to similarly consider the legal merits.…The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

Ever gracious in defeat, NLRB Chairman Mark Gaston Pearce said, "We continue to believe that requiring employers to post this notice is well within the Board’s authority, and that it provides a genuine service to employees who may not otherwise know their rights under our law."

The April 30 deadline for posting the NLRB’s employee rights notice is officially dead. It could take into next year before these issues work their way through the circuit courts, not to mention a likely appeal to the Supreme Court. By then, the NLRB could be tinted red and this whole issue could be moot. In the meantime, you’re break-room is free and clear of the NLRB’s latest mission statement.

More social media woes: employee fired for “liking” gay Facebook page

According to MSNBC, an employee has sued the Library of Congress for firing him after his manager discovered that he had “liked” the “Two Dads” page on Facebook. The employee, Peter TerVeer, claims that after his manager discovered he was gay, his performance reviews turned negative. TerVeer also claims that the manager started making derogatory statements about his sexual orientation and sending religiously motivated emails.

Let me offer three takeaways for businesses from this story:

1. Title VII, like Ohio’s anti-discrimination statute, does not protect sexual orientation. Nevertheless, courts have been known to stretch the definition of gender to include sexual orientation in certain cases. Even if TerVeer doesn’t have a sex discrimination claim, the religious overtones of the manager’s emails could provide a claim based on religion.

2. Much has been made lately about employers snooping on employees’ social media activities. According to nbclosangeles.com, however, the manager only learned about TerVeer’s Facebook activities when the manager’s daughter noticed the “like” and told her dad. This fact underscores what Lafe Solomon (the NLRB’s acting general counsel) told me when we appeared on NPR together last fall—that every social media charge filed with the NLRB started with a co-worker printing out the social media post and giving the hard copy to a manager. In other words, management as much of a hobby out of snooping on its employees as some would have you believe.

3. Despite this story’s foreboding tone, employers should not think that all employees’ off-work activities are off-limits. Nevertheless, this story underscores that employers need to tread very carefully when examining what their employees do on their own time.

Don’t post those new NLRB notices just yet (maybe)

As of this moment, April 30 is still your drop-dead date to post the NLRB’s new employee rights notice. Last Friday, however, a South Carolina federal court put that date, and the NLRB’s entire poster itself, in grave jeopardy. In Chamber of Commerce of the United States v. NLRB [pdf], the United States District Court for the District of South Carolina invalidated the NLRB’s attempt to force employers to post a statement of employees’ rights under the National Labor Relations Act.

According to the Court, the NLRB’s powers are reactive, not proactive. Thus, its Congressionally-mandated duty is to prevent and resolve unfair labor practice charges and to conduct representation elections—both of which must be initiated by an outside party’s filing. The NLRB’s proposed posting of employee rights, however, is proactive—it requires employers to do something without any filing by an outside party. As such, the NLRB exceeded its statutory authority.

The South Carolina court is not the first to rule on this issue. Last month, a different federal court reached the opposite conclusion and upheld the NLRB’s right to require most of the posting. The NLRB is reviewing its options as to whether it will postpone the posting requirement nationwide in light of the latest ruling. Likely, it will take some time for these issues to weave their way through the appellate courts for an ultimate resolution.

We now have two conflicting district court opinions. As an employer, what are you supposed to do? For now, and until you hear otherwise, assume that April 30 is still a go for the new posting. In the meantime, this case—which is the strongest rebuke to date of the power-grab by this administration’s agencies—is a huge victory for employers.

[Hat tip: Labor Relations Today]

WIRTW #221 (the “what’s in a name” edition)

If you don’t follow me on Twitter (what are you waiting for?), or if you missed the news as it flew by in your stream, my family is adding a dog in June. We’re super excited, but are stuck on what to name her. Do you want to help? I’m running a poll. We have it narrowed down to three choices, but are open to suggestions.  She’ll be a vizsla, if that helps. Take a few seconds to vote on one of our three choices, or add your own suggestion.

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

Discrimination

• When is the Best Time to Try and Settle Employment Litigation? — from Russell Cawyer’s Texas Employment Law Update
• Men Must be Allowed the Same Child Care Leave as Women — from Employer Defense Law Blog
• The Wrong Way to Help the Disabled — from Walter Olson’s Overlawyered
• Bipolar Disorder Disability Discrimination Lawsuit — from The Proactive Employer Blog
• Workplace pregnancy discrimination cases on the rise — from The Washington Post
• Anatomy of an EEOC Charge — from Casey Sipe’s The Employer’s Lawyer
• Is Weight Discrimination OK? — from HR Examiner with John Sumser
• Obama Won’t Order Ban on Gay Bias by Employers — from the New York Times
• Women, Money, and Bias: “The Economy Is Classist, Then Racist, Then Sexist” — from The Atlantic

Social Media & Workplace Technology

• Is Violation of Employer’s Computer Use Policy a Federal Crime? — from Phil Miles’s Lawffice Space
• Is Your Smartphone Making You Less Productive? — from Harvard Business Review
• Just One More Game ... Angry Birds, Farmville and Other Hyperaddictive ‘Stupid Games’ — from the New York Times Magazine
• Forget Facebook or Emails, Bosses Booting Employees Over Bandwidth — from FOX8.com
• Bosses’ big fear? That employees will film them — from CNET News
• Employers Aren’t Likely to Ask for Your Facebook Password — from US News and World Report’s On Careers Blog
• What Advice Should Lawyers Give Clients Who Want to Ask Prospective Employees for Their Facebook Passwords? — from Mike Maslanka at the Texas Lawyer
• What to Do When A Potential Employer Asks for Your Facebook Password — from Mashable
• The Spotlight is On Practice of Employers Requesting Access to the Social Media Accounts of Employees and Job Applicants — from Fitzpatrick on Employment Law
• Employer not allowed to search for porn on employee’s home computer — from Internet Cases

HR & Employee Relations

• Backstage Peek: Pixar Animation Studios’ “Cereal Bar” — from the disney food blog
• Dear Evil Skippy: Should I Have Been Warned for Using A T.V. Show’s Name at Work? — from Evil Skippy at Work
• Hire Slow, Fire Fast: Revisted — from Mike Haberman’s Omega HR Solutions
• Thanks for the Criticism! — from by Jim Brennan at Compensation Cafe
• Got Trade Secrets? — from The Employer’s Lawyer
• The Employee Handbook is Not Your Handbook — from Strategic HR Lawyer
• Stop being the office slob — from Suzanne Lucas at CBS Money Watch
• L.A. Firefighter Arrested For Moonlighting As MMA Brawler While Allegedly On Workman’s Comp — from Deadspin
• Physics in HR – The Petrino Principle — from The HR Introvert

Wage & Hour

• WINNER TAKES ALL: Supreme Court to Determine if Pharma Reps Should Be Classified as “Exempt”… — from The HR Capitalist, Kris Dunn
• Rebuild America Act Would Hike Tip Credit, Minimum Wage, Paid Time Off — from TLNT
• Volunteers May Be Entitled to Pay Under the Fair Labor Standards Act — from Randy Enochs’s Wisconsin Employment & Labor Law Blog
• Employee Wage Misclassification Should Be Taken Seriously — from Rush Nigut’s Rush on Business

  Labor Relations

• The Pros and Cons of Joining a Labor Union — from Fox News
• Three Weeks Until NLRB Posting Rule Takes Effect — from Dan Schwartz’s Connecticut Employment Law Blog
• Do Employees Read Break Room Signage Anyway? — from Jessica Miller-Merrell’s Blogging4Jobs
• Union says right-to-work law violates free speech — from Bloomberg Businessweek

Standing up for your employees

Last night, the Philadelphia Flyers rallied from 3 goals down to take game 1 of their first round series from their cross-state rivals, the Pittsburgh Penguins. Right now, you’re all thinking to yourselves, what can this possibly have to do with employment law or employee relations?

Four months ago, Dallas Stars’ center Steve Ott delivered a hit to Flyers’ star Claude Giroux, who had just returned to the lineup from a concussion. At the end of the period, Flyers’ coach Peter Laviolette chased down Ott in the Stars’ tunnel and confronted him about what he perceived as a cheap shot. According to Philly.com, Giroux appreciated his coach’s action: “It’s good to see we have each other’s back.”

Two weeks ago, Laviolette again stood up for his players, following a fight-filled conclusion to a game against the Penguins. The fights were precipitated by what Laviolette called a “gutless” move by the Pens to put its enforcers on the ice at end of a 6-3 blowout. As all 10 players on the ice fought, Laviolette stood on the boards yelling at Pens’ assistant coach Tony Granato. After the game, Laviolette defended his tirade (via CSNPhilly.com): “Those guys hadn’t played in 12 minutes; it was a gutless move by their coach.” Again, Giroux stood up for his coach (via CSNPhilly.com): “He’s got our back…. He’s an intense coach who loves his players.”

Which brings me back to last night. The Flyers fell into a quick 0-3 hole. They needed to rally. And, they did. Don’t think for a minute that whatever motivation Laviolette used to jump-start his team had added impact because his players know that he stands up for them. He has their backs, and they responded with 4 unanswered goals and a 1-0 series lead.

Your organization is not a hockey team, but there is a lesson to learn from Peter Laviolette. If you have your employees’ backs, they will reciprocate. You never know when you’ll need your employees to rally for you (overtime, sales quotas, deadlines, etc.). Make it easier for them to go the extra mile by standing up for them when they need it. Reward good performance. Recognize star performers. Take complaints seriously. Have an open-door for your employees. Your employees will pay you back in spades.

Maryland becomes 1st state to ban requiring employees’ social media passwords

The public outcry against employers requiring the job applicants turn over their Facebook passwords has resulted in legislation. Maryland has become the first state to prohibit employers from requiring or seeking user names, passwords, or any other means to access Internet sites such as Facebook as a condition of employment. Demonstrating the outrage over this issue, the measure passed both house of Maryland’s General Assembly with 96% support.

The law—entitled, “User Name and Password Privacy Protection and Exclusions” (full text here [pdf])—prohibits Maryland employers:

• from requesting or requiring that an employee or applicant disclose any user name, password, or other means to access a personal Internet account;
• from taking, or threatening to take, disciplinary actions for an employee’s refusal to disclose certain password and related information; and
• from failing or refusing to hire an applicant as a result of the applicant’s refusal to disclose certain password and related information.

The law exempts employers that are conducting investigations into compliance with securities or financial laws or regulations, and investigations into the unauthorized downloading of the employer’s proprietary information or financial data to an employee’s personal website.

Eric Meyer, at The Employer Handbook blog, nicely summarizes the main critiques of this bill:

[T]he Maryland Chamber of Commerce opposed the prohibition because the bills did not acknowledge there could be legitimate issues for some employers to want to review applicants' or workers' social media messages.

What concerns me is that there are no carve-outs for public agencies that protect and serve the public. I can understand why a police department may need to fully vet its candidates by making sure that applicants and officers don’t have hate speech towards a particular protected class, for example, on their Facebook page. As I imagine that this information could be used to overturn arrests and indictments.

While I agree with Eric’s take, my critique is more about the small percentage of employers who engage in this practice:

Legal issues aside, this story raises another, more fundamental, question—what type of employer do you want to be? Do you want to be viewed as Big Brother? Do you want a paranoid workforce? Do you want your employees to feel invaded and victimized as soon as they walk in the door, with no sense of personal space or privacy? Or, do you value transparency? Do you want HR practices that engender honesty, and openness, and that recognize that employees are entitled to a life outside of work? … Requiring passwords is not smart.

This law affects you only if: 1) you engage in business in Maryland; and 2) you are among what I believe is the small minority of business that are requiring applicants and employees to turn over social media logins and passwords. Nevertheless, I would expect other states to follow suit, and use the Maryland legislation as a model.

Even if few public sector employers, and fewer private sector employers, are engaging in this practice, this issue bears monitoring.

[Hat tip: The Hill]

National origin harassment depends on the national origin of the harassee

Consider the following examples, both of which come from harassment cases decided in the past two weeks by the Northern District of Ohio:

• EEOC v. Spitzer Management [pdf]: Employer denied summary judgment based on allegations that an Asian-American employee was called “slant eye” and “rice rat,” and an African-American employee was called a “jungle bunny” and a “gorilla.”
• Burrage v. FedEx Freight [pdf]: Employer granted summary judgment based on allegations that an employee was repeatedly called “Mexican” and referred to as “cheap labor.”

How do you rationalize these two seemingly incongruous decisions? The reconciliation depends on the national origin or race of the complainant. In Spitzer, an Asian-American was complaining about harassment based on his national origin, and an African-American about harassment based on his race. In FedEx, however, the complainant was not Mexican-American, or any Hispanic descent. In reality, he was half-white/half-black. As the court in Burrage v. FedEx explained:

At best, the references to Burrage as “the Mexican” and “cheap labor,” and the use of the Spanish terms “andale” and “ariba,” represent the very unfortunate employment of offensive stereotypes of Hispanics, and can be said to arise out of a misperception that Burrage was of Hispanic descent….

Burrage seems to argue that he was harassed because of physical characteristics that made him appear to be a member of a protected class of which he was not an actual member. Claims based on perceived class membership are not legally viable under Title VII, and the Court will not expand the reach of Title VII to cover that which Congress chose not to protect.

Do not take refuge in Burrage v. FedEx and use it as an excuse to condone harassment. FedEx just as easily could have gotten dinged for ignoring an employee’s four years of complaints. Regardless of whether there is synergy between the harassment and the harassed, take the complaint seriously, investigate, and deploy appropriate corrective action if necessary. Do not hang your harassment hat on a technicality, because the court hearing your case might not be so generous.

Get rid of at-will employment? Give me a break!

On Donna Ballman’s blog, Screw You Guys, I’m Going Home, she argues for a radical change to at-will employment. She believes that unemployment hearing officers should have the power to reinstate, with back pay, anyone fired without just cause:

Most employers can fire you for any reason or no reason at all…. Then, to add insult to injury, our tax dollars pay for the cost of unemployment compensation and the side-effects of unemployment, all because your boss had a hissy fit one day and fired you without just cause…. Every state in the nation already has a set of hearing examiners or referees who hear unemployment cases. If the employee is fired for misconduct, they don’t get to collect. But what about the employer who fires without just cause? Why not give the unemployment hearing officers one more power: the power to reinstate with back pay.

I applaud Donna’s bravado in arguing for a radical solution to a problem she perceives. But, is it really a problem at all? In reality, few employers act on whims of fancy. We can debate what qualifies as “just cause,” but the fact is that few employer fire good employees. It is not a good business decision for a company to let a good worker go. Good employees keep their jobs, marginal employees are at risk, and bad employees are fired. And, when an undeserving employee is fired, there are myriad employment laws to protect their rights from an unjust dismissal.

Moreover, placing into the hands of unemployment hearing officers the power to reinstate (with back pay) would cripple workforce mobility and hiring. If employers face a risk of having overturned all but the clearest of terminations, they will be reluctant to fire all but worst of employees. Businesses will be stuck with the middling and marginal, harming their ability to employ the best and the brightest. Donna’s scheme would therefore result in fewer job opening, which, in turn, would irreparably damage hiring and create longer periods of unemployment for those searching for work.

Finally, at least in Ohio, the premise that individual taxpayers foot the bill for employers’ whims is faulty. In Ohio, unemployment is funded by a tax on employers. Employers’ tax rates go up and down based on the number of claims paid (like any other insurance scheme). For 2012, that rate can be as high as 9.1%. So, it is in employers’ best interests not to fire on a whim, because the resulting unemployment claim will raise their contribution rate, resulting in a higher tax. In other words, bad firing decisions hit an employer where it hurts, the bottom line. 

Donna, if you’re still convinced that your idea makes sense, I’ll make you a deal. When you agree that we need to adopt my Employer’s Bill of Rights, I’ll agree that at-will employment is a dinosaur (and, watch out for the flying pigs).

WIRTW #220 (the “social assassin” edition)

Passover starts at sundown tonight. I have nothing employment-related for this tidbit of information (don’t treat your workers like the pharaoh treated his, or you will likely face the 11th plague, litigation?). But, it does give me an excuse to play the following, which also happens to be one of the few SFW clips in the eight-seasons of Curb Your Enthusiasm.

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

Discrimination

• What Baggage Does The Employment Attorney Carry? — from Dan Schwartz’s Connecticut Employment Law Blog
• You may know where the bodies are buried, but that doesn’t mean you can sue your employer for retaliation — from Robin Shea’s Employment and Labor Insider
• Comments to OIRA on forthcoming EEOC Background Check Guidance — from the U.S. Chamber of Commerce
• Intellectual Disability under the ADAAA: A Widening Chasm of Problems? — from Michael Haberman’s Omega HR Solutions
• We Know You Don’t Mean to Discriminate - But Are You Biased Underneath the Hood? — from The HR Capitalist. Kris Dunn
• Employment discrimination by the numbers: Foreign Edition — from Eric Meyer’s The Employer Handbook Blog
• Pending Legislation Employers Can’t Afford to Ignore — from Stephanie Thomas’s The Proactive Employer Blog
• Senators Propose Amendments To ADEA — from Stoel Rives World of Employment
• Statistical disparities don’t necessarily indicate discrimination — from The Tennessean

Social Media & Workplace Technology

• Your Future Employer Is Watching You Online. You Should Be, Too. — from Michael Fertik at the Harvard Business Review
• Employees Need To Take Control Of Their Online Identities — from Anthony Zaller’s California Employment Law Report
• Employers Who Demand Facebook Passwords. Oy Vey. — from Molly DiBianca’s Delaware Employment Law Blog
• Teacher fired for refusing to hand over Facebook password — from Friending Facebook Blog
• Michigan Proposes Legislation to Ban Employers from Accessing Employees’ Social Media Sites — from Jason Shinn’s Michigan Employment Law Advisor
• The Facebook access controversy comes to Michigan — from John Holmquist’s Michigan Employment Law Connection
• Access To Social Media Accounts In The Hiring Process And Employer Ownership Of Trade Secrets Or Confidential Information Contained In Social Media Accounts: Legislation On Horizon? — from Trading Secrets
• Employee Photos on the Company’s Social Media Page? — from Nolo’s Employment Law Blog
• Social Media Ethics: Why You Should Have a Policy — from Social Media Today

HR & Employee Relations

• Should You Fire The Slugs? — from Stephanie Thomas at Compensation Cafe
• Did Your DUI Lawyer Draft Your Employee Handbook? — from TLNT
• Olbermann Employment Law-Palooza — from Phil Miles’s Lawffice Space
• Quoting scripture at work — from Evil HR Lady, Suzanne Lucas
• “Bullying” Is Becoming Part of the Zeitgeist — from Michael Fox’s Jottings By An Employer’s Lawyer
• Pet insurance as a benefit — from HR idiot
• Creating a Conflict-Conscious Workplace — from intown employer
• If the Facebook COO can leave the office at 5:30, maybe you can too — from Amy Joyce’s On Parenting (at washingtonpost.com)
• How to reduce your legal spend on employment issues — from Smart Business

Wage & Hour

• “Employers grow reluctant to offer internships following complaints” — from Walter Olson’s Overlawyered
• Intern or Employee? Unpaid Internships May End Up Costing Employers — from LE Blog
• Argument preview: The “outside salesman” exception to the FLSA’s overtime-pay requirement — from SCOTUSblog
• Will breastfeeding support die with Obamacare? — from Eve Tahmincioglu’s CareerDiva
• Can an Employer Require an Employee to Make Up Time Taken as FMLA Leave? from Jeff Nowak’s FMLA Insights

Until next week (also, remarkably, SFW):