WIRTW #225 (the “drive thru” edition)

Did you catch my appearance on DriveThruHR yesterday? You mean you weren’t glued to your computer at 1 pm, hanging on my every word about HR, employment law, social media, background checks, the EEOC, and the NLRB? I’ll put aside my offense, and offer you a second chance to hear my musings.

Listen to internet radio with Wempen and Tincup on Blog Talk Radio

Thanks to William Tincup and Bryan Wempen for having me on. Let’s do it again soon.

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

Discrimination

• Conn. Supreme Court Rejects $10M Verdict; Insubordination is Not Protected Speech — from Dan Schwartz’s Connecticut Employment Law Blog
• Hostility At Work Is Expensive (And Wrong) — from Troutman Sanders HR Law Matters
• Do we need another pregnancy bias law, or just a bigger hammer? — from CareerDiva, Eve Tahmincioglu
• How Employee Performance Reviews Can Help or Hurt an Employment Discrimination Claim — from Jason Shinn’s Michigan Employment Law Advisor
• Law and Order: Human Resources Unit — from HR idiot
• FMLA leave meets ADA “reasonable accommodation” — from Walter Olson’s Overlawyered
• Joint Evaluations Reduce Implicit Bias — from Stephanie Thomas at Compensation Cafe

Social Media & Workplace Technology

• Tips for Protecting Social Media Information as Trade Secrets — from Ethan Wall’s Social Media Law & Order
• Who Does Your LinkedIn Profile Belong To? — from Fistful of Talent
• How to Use Twitter to Find Niche Candidates — from Kara Mignanelli’s Social Media Strategies Summit Blog
• Password Protection Act to prohibit employers from gaining access to Facebook accounts — from The Verge
• Why We Need A “Password Protection Act” Against Employers — from Kashmir Hill’s The Not-So Private Parts
• Social Media: Useful Tool or Employment Pitfall? — from CPEhr
• April Fools’ Day Prank Leads To Trade Secrets Litigation — from Trading Secrets

HR & Employee Relations

• Waaah: United States Ranks 25th For Being A Mom — from Workplace Diva
• The Value of Returning Moms to your Workforce — from The Tim Sackett Project
• President Obama supports same sex marriage; what does this mean for HR? — from Warren & Associates Blog
• The Nine C’s of Engagement and Why EVERYTHING is Communication — from Ann Bares’s Compensation Force
• Welcome to Apple — from TiPb
• Can Employers Ask For Applicants’ W-2 or Tax Returns? — from California Employment Law Report
• Does Résumé “Lying” Really Matter if You Can Perform? — from Mike Haberman’s HR Observation’s Blog
• A Lie-Detector Test for Resumes — from Entrepreneur
• What “The Avengers” can teach you about the workplace — from The Work Buzz
• Checking In with Employees (Versus Checking Up) — from Harvard Business Review

Wage & Hour

• Dewey Have Any WARN Act Liability? Let’s Discuss — from Above the Law
• Seventh Circuit Surprise: Appeals Court Finds Pharma Reps Exempt Under Administrative Exemption Without Waiting for Supreme Court — from The Wage and Hour Litigation Blog
• A movement emerges: Will unpaid internships disappear? — from David Yamada’s Minding the Workplace
• You Can’t Be Sick Unless You’re Pre-Sick — from Frank Roche’s KnowHR Blog
• You Can’t Make This Stuff Up! Firefighter, MMA fighter dealt serious blow — from EmployerLINC

Labor Relations

• How you’ve been screwed – whether you know it or not from Mike VanDervort’s The Human Race Horses
• NLRB’s Plan: Expand labor's influence from Employment Matters Blog
• NLRB: Barring employees from discussing salary is a bad idea from Eric Meyer’s The Employer Handbook Blog
• The NLRB’s War on “At Will” Disclaimers from The Personnel Files
• Defense Counsel’s Deposition Questions about Employees’ Union Activity Were Unlawful from Labor Relations Counsel

The FMLA and the honest belief rule: monitoring leave of absence abuse

Last week, I discussed the bounds of the “honest belief rule” as a defense to a discrimination claim. Yesterday, in Seeger v. Cincinnati Bell Telephone Co. [pdf], the 6th Circuit used that same defense to affirm the termination of an employee who claimed retaliation under the FMLA. This case, though, has wider implications for employer who use surveillance to monitor the legitimacy of their employees’ medical leaves.

Tom Seeger took an approved leave of absence under the FMLA for a herniated lumbar disc. Four days after Seeger’s doctor certified him as completely unable to work—including any light duty, which entitled him to receive paid disability leave under the employer’s policy—two of Seeger’s co-workers saw him walking, seemingly unimpaired, at the Cincinnati Oktoberfest. One of the employees, who knew Seeger was collecting paid disability leave, reported his sighting to CBT’s human resources manager.

CBT conducted an investigation, which consisted of obtaining sworn statements from the two employees who saw Seeger, reviewing Seeger’s medical records, disability file, and employment history, and consulting with CBT’s internal medical manager. Based on the inconsistency between Seeger’s reported medical condition and his reported behavior at Oktoberfest, CBT terminated Seeger for “disability fraud” (over-reporting his symptoms to avoid light-duty and continue collecting disability payments).

Relying on the “honest belief rule,” the 6th Circuit concluded that CBT’s termination decision did not violate the FMLA:

CBT made a “reasonably informed and considered decision” before it terminated him, and Seeger has failed to show that CBT’s decisionmaking process was “unworthy of credence.” … The determinative question is not whether Seeger actually committed fraud, but whether CBT reasonably and honestly believed that he did….

CBT never disputed that Seeger suffered from a herniated disc…. Seeger’s ability to walk unaided for ten blocks and remain at the crowded festival for ninety minutes understandably raised a red flag for CBT, giving it reason to suspect that Seeger was misrepresenting his medical condition in an attempt to defraud CBT’s paid-leave policy.

This case has wide implications. There are many laws that entitle employees to take time off from work: FMLA, ADA (disability), PDA (pregnancy), Title VII (religious accommodation), and state workers’ compensation laws, to name a few. Many companies use surveillance to curb leave of absence abuses. I am not suggesting that you surveil every employee who takes leave from your workplace. Without a good faith belief supporting the surveillance, a court could conclude that your actions are unlawful.

If, however, you have a good faith reason to test the legitimacy of an employee’s leave via surveillance or other monitoring, Seeger's invocation of the honest belief rule will offer you some protection if you misinterpret the results of your investigation.

I’ll be guesting at Lunch with DriveThruHR, tomorrow at 1 pm

Tomorrow, I’ll be spending my lunch with DriveThruHR, human resource’s #1 daily radio show. You can listen live at 1 pm EDT at www.drivethruhr.com, which will also archive the show for future listening.

I’m looking forward to my half-hour with hosts Bryan Wempen and William Tincup, talking about HR and whatever else keeps me up at night with corporate organizations. Questions or comments during the show? You can call in at (347) 996-5600, or tweet using #dthr or @drivethruhr.

New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

On the New York Times’s Motherlode blog, KJ Dell’Antonia discusses her belief that we need another law to protect pregnant women in the workplace:

Pregnancy is specifically not covered under the Americans With Disabilities Act, which requires that employers provide reasonable accommodations to disabled employees who need them to do their jobs…. But to have a healthy pregnancy, women must make adjustments—call them accommodations—for the baby they’re carrying…. Pregnant women are protected by the federal Pregnancy Discrimination Act, but protection against discrimination does not require accommodation. Sometimes equal treatment is not enough to allow a woman to stay on the job—and no one benefits from pregnant women being forced to choose between her doctor’s advice and her supervisor’s demands.

Ms. Dell’Antonia then lends her support to a nascent piece of federal legislation, The Pregnant Workers Fairness Act.

I take issue with Ms. Dell’Antonia’s central premise that the Pregnancy Discrimination Act does not require accommodations for pregnant workers. The PDA requires employers to treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. In other words, the law already requires that employers provide the same accommodations for an expectant worker that you do for any un-pregnant employee unable to perform his or her regular job duties.

Have you ever offered light duty to an employee returning from an injury? Have you ever reassigned job functions to assist an injured worker? Unless you are among the tiniest minority of employers that provides no accommodations for any employees’ medical issues or injuries, then the PDA already requires you to accommodate your employees’ pregnancies.

We do not need legislation to require an employer to make a reasonable accommodation for pregnancy, childbirth, and related medical conditions. The PDA already implicitly allows for these accommodations. I’m not taking a stand against the rights of pregnant women (which I support). I am, however, taking a stand against duplicative legislation, regardless of the soundness of the policy or the worthiness of the beneficiary.

Revenge is a dish best never served at all in the workplace

Section 215(a)(3) of the Fair Labor Standards Act makes it unlawful for an employer to “discharge or in any manner discriminate against any employee because such employee has filed any complaint … related to” wages paid or hours worked. It has been over a year since the U.S. Supreme Court held—in Kasten v. Saint-Gobain Performance Plastics—that this anti-retaliation provision covers oral complaints. The Court, however, left open the issue of whether an intracompany complaint suffices as protected activity under the FLSA.

Federal courts are starting to sort out the answer to this important question. And, it doesn’t look good for employers. For example, in Minor v. Bostwick Laboratories, Inc., the notoriously conservative 4th Circuit held that “the remedial purpose of the statute requires that it protect from retaliation employees who file intracompany complaints.”

The court highlighted some the policy considerations behind this ruling:

The protection of internal complaints encourages resolution of FLSA violations without resort to drawn-out litigation—and that failure to protect internal complaints may have the perverse result of encouraging employers to fire employees who believe they have been treated illegally before they file a formal complaint.

While Kasten left open the issue of whether internal complaints suffice as protected activity under the FLSA, lower federal courts are quickly closing this door. Any time you, as an employer, are thinking about exacting revenge on an employee who even arguably engaged in protected activity, think twice, or three times, or as many times as is necessary to dissuade you of your inclination to retaliate. Courts are increasingly resistant to giving free passes to employers who retaliate. If you think you can rely on a legal technicality as a defense (e.g., Kasten), think again. The deck is stacked against you.

Stop, thief! Polygraph testing and workplace theft

The Employee Polygraph Protection Act regulates (and restricts) the use of polygraph tests in the workplace. For example, it prohibits an employer from disclosing to anyone an employee’s polygraph results without the employee’s consent, and also prohibits an employer from taking an adverse action against an employee based on the results of a polygraph.

Bass v. Wendy’s of Downtown, Inc. (N.D. Ohio 5/1/12) discusses the limits of both of these prohibitions. More importantly, however, this case raises a more practical question about the use of polygraphs in the workplace.

In 2007, a cash deposit went missing from Wendy’s. As part of its investigation, Wendy's asked Donald Bass to submit to a polygraph examination, which he failed. Despite the failed test, Bass continued to work for Wendy’s as a part-time employee. More than two years later, Wendy’s passed over Bass for a promotion to General Manager. A few months later, it fired him for inappropriately touching a female employee.

Bass claimed that Wendy’s violated the EPPA by: 1) disclosing the results of his 2007 polygraph to the Ohio Civil Rights Commission in support of its position that the store did not discriminate against him; and 2) relying on the 2007 polygraph to deny him the promotion.

The court dismissed both claims:

• The court dismissed the wrongful disclosure claim because Bass could not articulate how he had been damaged by the statement to the OCRC.
• The court dismissed the failure-to-promote claim because Wendy’s would have denied him the position even if he had not failed the polygraph. 

Here’s my question. If Bass failed a polygraph in 2007, why was he around years later to grope a female employee and claim discrimination? If you are going to jump through all of the legal hoops necessary to use a polygraph to confirm an employee’s theft, use the results. As this case shows, nothing good comes from retaining an employee who steals from you.

WIRTW #224 (the “5 is the magic number” edition)

On May 9, 2007, I launched the Ohio Employer’s Law Blog. It’s unfathomable to me that I’ve been writing this blog for five years. Thanks to all of my readers for a great half-decade (which I’m celebrating a few days early). Here’s to many, many more.

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

Discrimination

• Why you should stop attending diversity training — from Evil HR Lady, Suzanne Lucas
• 6 Steps to Avoid Family Responsibilities Discrimination Claims — from i-Sight Investigation Software Blog
• More office romances; more anti-harassment training — from Eric Meyer’s The Employer Handbook Blog
• “Hey, Jackie, can we talk?” The EEOC’s Enforcement Guidance on criminal background information — from Robin Shea’s Employment and Labor Insider
• Fired For Giving Boss A Kidney? — from The Proactive Employer Blog

Social Media & Workplace Technology

• Why You Should Sign Out Of Facebook Before Handing Your Phone Over To Best Buy — from Kashmir Hill’s The Not-So Private Parts
• Can “Friends” Be Trade Secrets? — from Unfair Competition & Trade Secrets Counsel
• Maryland’s Facebook Username and Password Law is a Win For Employers, Employees, and Job Applicants — from Shear on Social Media Law
• SNOPA - Proposed Federal Legislation on Employer Social Networking Password Requests — from Phil Miles’s Lawffice Space
• Survey on employer use of social network sites in recruiting and screening — from George’s Employment Blawg
• What is privacy? As job-seekers are judged by their tweets and Facebook posts, uncertainty abounds — from Lini Kadaba at philly.com

HR & Employee Relations

• Five Suggestions for Improving Employee Handbooks — from Mike Haberman’s Omega HR Solutions
• Dear Evil Skippy: Should You Say “Fired” or “Terminated”? — from Evil Skippy at Work
• How to Terminate an Employee - Baseball Bat Optional — from Jason Shinn’s Michigan Employment Law Advisor
• 50 Shades of Grey and Human Resources — from Mike VanDervort’s The Human Race Horses
• We Are Stressssssssssssssssssed — from Mark Toth’s Manpower Employment Blawg
• Federal Court: FCRA Does Not Apply To Independent Contractor Relationships — from Employer Law Report
• Why Everyone at Your Company Should Speak (A Little) English — from Harvard Business Review
• Lack of Jury Trials Isn’t Bad for Employers — from Rob Radcliff’s Smooth Transitions
• The Trade Secrets Dilemma – Sue and Disclose — from Trade Secrets Blog
• As Ozzie Guillen Learned the Hard Way, There’s No Free Speech in Corporate America — from Donna Ballman’s Screw You Guys, I'm Going Home

Wage & Hour

• Internships: The Good, The Bad, The Ones that Violate The Law — from Dan Schwartz’s Connecticut Employment Law Blog
• Wal-Mart, DOL Reach Agreement for $5M+ Settlement Over FLSA Violations — from Smart HR Manager
• Ready for your COBRA Audit? — from Todd Stanton’s Intown Employer

Labor Relations

• NLRB Quickie Election Rule Now In Effect; Here’s What It Means — from TLNT
• Responding to Outrageous Employee Conduct in the Wake of the NLRB’s Jimmy John’s Decision — from Minnesota Employer

The NLRB’s dangerous course: arbitration waivers and protected concerted activity

The NLRB has announced the filing of a complaint against 24 Hour Fitness USA, Inc., claiming that the company’s requirement that its employees submit all employment-related disputes to individual arbitration violated federal labor law.

According to the NLRB, 24 Hour Fitness, which is non-unionized, requires employees to agree, in writing and as a condition of employment, to forego any rights to collective or class action lawsuits or arbitrations, and instead resolve all employment dispute in single-employee arbitrations. The company permits employees to opt-out of this waiver, but only by submitting a company-drafted written form within 30 days of signing the original waiver.

Earlier this year—in D. R. Horton, Inc. (currently on appeal)—the NLRB held that an employer violated the federal labor law by maintaining, as a condition of employment, a mandatory arbitration agreement that did not allow its employees to file joint, class, or collective employment-related claims in any forum, arbitral or judicial. In 24 Hour Fitness, the Board seeks to extend D. R. Horton to include the 30-day opt-out. As is the case with social media, the NLRB is expanding its attacks on workplace policies in non-unionized workplaces.

I’ll give NLRB Acting General Counsel Lafe Solomon credit—he has taken an agency that had been relegated to near-obsolescence and made it very relevant. Less than 7 percent of private-sector workers belong to a labor union. By shifting its enforcement priorities to issues surrounding protected concerted activity, the NLRB has extended its reach to the 93 percent of non-unionized workers. It has also made itself the go-to agency for employees fired for complaining about work.

This focus by the Board on protected concerted activity is only going to increase. According to Mr. Solomon’s latest memo [pdf] (discussing his attendance at the Midwinter meeting of the Practice and Procedure Committee of the ABA Labor and Employment Law Section), the NLRB will be adding a page to its website “dedicated to Protected Concerted Activity matters.” In other words, businesses need to prepare themselves for increased knowledge by their employees on these issues, in addition to increased enforcement efforts by the NLRB.

Mr. Solomon and I will be sharing the dais at the NLRB Region 8 Labor Law conference. I’m kicking the conference off by moderating a panel on social media. Mr. Solomon is the lunch speaker. His topic is titled, The NLRB Today: Maintaining an Even Keel While the Storm Rages. I am very curious to hear how he describes today’s NLRB as an “even keel.” The SS NLRB leans a little too much to the port side for my (and most businesses’)taste.

$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.