WIRTW #228 (the “Sound Odyssey” edition)

Where were you in 1983? I was in the 5th grade at Loesche Elementary School in Northeast Philly. I’ll get back to 1983 in a second.

Today is my daughter’s last day of kindergarten. Her (amazing) teacher (see #13 below) assigned the class a time capsule project. Each child had to answer 14 questions, which, along with a letter from mom and dad, will be sealed in a time capsule, to be opened at their graduation in 2024. Here’s my daughter’s submission:

When I posted this photo to Facebook, one of my grade school classmates reminded me of the time capsule our 5th grade class buried in 1983. He even had the article from The Jewish Times discussing the project (page 1 / page 2). For the record, I sacrificed the instruction manual from our Smurfs ColecoVision game. I’m not sure what’s more shocking, that I’m admitting to owning a Smurfs game, or that people paid $569.99 for a VCR (check out the Sound Odyssey ad at the bottom of page 2, and bonus points to anyone who can name any other store that was in the Leo Mall).

I am taking a much needed vacation next week. Enjoy some of my greatest hits spanning the past 6 months. I’ll be back on June 11 with brand new content.

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Thanks to Tom Mighell for featuring me on Wednesday as the Blawg of the Day at Inter Alia. Tom’s blawg is one of the originals, dating all the way back to 2002. It’s always nice to be recognized by one of the trailblazers.  

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

Discrimination

• Employee “loses track of time” due to disability — from Walter Olson’s Overlawyered
• Up in smoke: Hopes of ADA protection for medical marijuana use are dashed … for now, anyway — from Robin Shea’s Employment and Labor Insider
• The ADA does not protect medical-marijuana use, but… — from Eric Meyer’s The Employer Handbook Blog
• USERRA’s Statute of Limitations — from Molly DiBianca’s Delaware Employment Law Blog
• Crude, Bullying, and Despicable Workplace Conduct Does not Create Hostile Work Environment based on Sexual Harassment — from Jason Shinn’s Michigan Employment Law Advisor
• Company’s wording of termination letter, which mentioned employee’s disability leave, was direct evidence of discrimination — from Employment Law Matters
• ‘The Bachelor’ and ‘The Bachelorette’: Inside the Racial Discrimination Lawsuit — from Jennifer Pozner at The Daily Beast

Litigation

• Surprise! Study Finds That Everyone Hates Employment Litigation — from Mark Toth’s Manpower Employment Blawg
• You’re Damned if You Don’t Take the Right Steps After Being Sued — from damnedif
• Litigation is Not War, Nor Should it Be — from San Antonio Employment Law Blog

Social Media & Workplace Technology

• Trash Your Social Media Policy — from Heather Bussing at HR Examiner
• NLRB Releases Memo on Social Media Policies — from Phil Miles’s Lawffice Space
• Homeland Security reveals hundreds of words that could put you on their online watch list — from Boy Genius Report
• Who Owns Social Media? Risk Management? — from SocialFish
• The Password Debate: What’s an Employer to Do? — from Technology for HR
• Michigan Federal Court Adopts Narrow Interpretation of Civil Liability Under Computer Fraud and Abuse Act — from Trading Secrets

HR & Employee Relations

• Summer Reading: Is the “Mommy Porn” in “Fifty Shades of Grey” Workplace Safe? — from Dan Schwartz’s Connecticut Employment Law Blog
• How to handle sexual misconduct at work — from Evil HR Lady, Suzanne Lucas
• What the 1990s taught us about abusive work environments — from David Yamada’s Minding the Workplace
• Watch Where You Turn Up the Volume — from New York Times
• Treat Your Terminations as “For Cause” (Even When They’re “At Will”) — from Litigation PostScript
• Can Task-Based Employment Really Work? — from The Proactive Employer Blog
• Whistleblowers: Why you should heed their warnings — from Fortune
• Employee Handbook Version 2.Awesome — from Workplace Prof Blog
• Dear Evil Skippy: I Caught My “Temporarily Disabled” Employee Out Shopping — from Evil Skippy at Work

Wage & Hour

• 5 Steps to Better Wage & Hour Law Compliance — from Blogging4Jobs
• Wage and Hour Violations in the New Economy: A Tricky Business for Employers and Employees Alike — from Employment Lawyer Blog
• What Is A “9/80” Pay Plan? — from Wage and Hour Laws Blog
• Paycheck Fairness Act Moves Forward — from Washington D.C. Employment Law Update
• Fairness Doctrine — from We Know Next
• In FMLA-leave cases, here’s why employers' counsel always should depose the family member the employee claims needs to be “cared for” — from Mike Maslanka’s Work Matters
• Must an Employer Designate FMLA Leave When the Employee Does Not Want to Use FMLA Leave, or When the Employee Fails to Mention FMLA? — from Jeff Nowak’s FMLA Insights

Labor Relations

• Unions Restrict What Workers Can Get Paid — from Michael Haberman’s Omega HR Solutions
• Appellate Court Credits Employer’s Challenge of Mock Card Check Ceremony During Union Campaign — from Labor Relations Counsel

NLRB’s position on social media policies remains a bungled mess

Oh! what a tangled web we weave
When first we practice to deceive!
– Walter Scott, Marmion, Canto VI, Stanza 17 (1808)

Yesterday, NLRB Acting General Counsel Lafe Solomon issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” If you read the employment law blogs today, my guess is that you will find a whole bunch of management-side employment bloggers critical of Mr. Solomon (Molly DiBianca, Eric Meyer, and Dan Schwartz, for starters). Allow me to add my name to the mix. I apologize in advance for my treatise-length post.

As you might recall, I was very critical of Mr. Solomon’s 2nd report in its treatment of employer policies. Has the Acting GC solved any conundrums for employers with his latest missive? Can a company draft a social media policy with any teeth that the NLRB will conclude passes muster? Don’t count on it. In fact, Mr. Solomon's latest missive is as galling of a piece of legal analysis I have ever read. It's nothing short of intellectual dishonesty masquerading as hair splitting. How else can you explain the following razor-thin distinctions?

• A policy that prohibits the “release [of] confidential guest, team member or company information” is illegal, but a policy that cautions employees to be suspicious when asked to disclose confidential information is okay.
• This policy is illegal: “When in doubt about whether the information you are considering sharing falls into one of the [prohibited] categories, DO NOT POST. Check with [Employer] Communications or [Employer] Legal to see if it’s a good idea.” And this policy is illegal: “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline" are illegal.” Yet, this policy is legal: “Employees should avoid harming the image and integrity of the company and any harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers”.
• “Get permission before reusing others’ content or images” is illegal, while “Respect all copyright and other intellectual property laws. For [Employer’s] protection as well as yours” is legal.

Other baffling illegal policies?

• “Think carefully about ‘friending’ co-workers.”
• “Report any unusual or inappropriate internal social media activity.”
• “Don’t comment on any legal matters, including pending litigation or disputes.”
• “Adopt a friendly tone when engaging online. Don’t pick fights…. Remember to communicate in a professional tone…. Don’t make any comments about [Employer’s] customers, suppliers or competitors that might be considered defamatory.”
• “You are encouraged to resolve concerns about work by speaking with co-workers, supervisors, or managers.”
• “Avoid harming the image and integrity of the company.”

Mr. Solomon also invalidated various “savings clauses,” including one that provided:

This policy is for the mutual protection of the company and our employees, and we respect an individual’s rights to self-expression and concerted activity. This policy will not be interpreted or applied in a way that would interfere with the rights of employees to self organize, form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from engaging in such activities.

This unlawful policy is not all that different from the workplace posting that the NLRB wanted to have in every break room in America, yet it’s not good enough for any employer’s social media policy? Where is the logic and consistency? This is the exact breed of intellectual relativism that makes me furious.

Here’s the kicker. If challenged, Mr. Solomon would have to take issue with his own agency’s internal social media policy. Thanks to Mike VanDervort’s The Human Race Horses and Human Resources Executive Online, we can take a peek at the NLRB’s own social media policy, which prohibits: “Comments that the NLRB Office of Public Affairs deems inappropriate.” How is the NLRB’s own policy substantively different than any of the policies Mr. Solomon thinks are overly restrictive of employees’ rights to engage in protected concerted activity?

So, what’s the takeaway? The NLRB’s position on social media policies remains an absolute mess. If anything, it’s more confusing now than before Mr. Solomon issued his 3rd report. Employers need to be able to adopt bright line rules to guide their employees towards proper conduct. Yet, this report puts employers in the dangerous position of being fearful of drawing even the simplest of lines. The result, I’m afraid, is that businesses won’t adopt any rules, creating online anarchy among their employees.

As a emerging communication tool, social media is unstructured enough. Do we really want to create unnecessary legal impediments to disincentivize employers from drafting the rules their employees desperately need?

Perhaps the answer for employers lies in this policy, which Mr. Solomon concluded was lawful:

Use your best judgment and exercise personal responsibility. Take your responsibility as stewards of personal information to heart. Integrity, Accountability and Respect are core [Employer] values. As a company, [Employer] trusts—and expects—you to exercise personal responsibility whenever you participate in social media or other online activities. Remember that there can be consequences to your actions in the social media world—both internally, if your comments violate [Employer] policies, and with outside individuals and/or entities. If you’re about to publish, respond or engage in something that makes you even the slightest bit uncomfortable, don’t do it.

Think before you click? My four-word social media policy might be a whole lot closer to reality.

Epilogue: If you scroll down to the last 3 pages of Mr. Solomon’s report, you will find a form social media policy on which the NLRB signed off. If you want to err on the side of abundant caution, this policy is the one you should be using (with the input of your attorney). Until the federal courts weigh in on this issue, however, we will have to live in world of uncertainty over the permissible scope, reach, and breadth of social media and other workplace communication policies.

BREAKING: NLRB issues 3rd report on social media

Hot off the presses, NLRB Acting General Counsel Lafe Solomon has issued his third report on social media cases brought to the agency [pdf]. This report focuses entirely on “policies governing the use of social media by employees.” I am digesting the report and will share my thoughts first thing tomorrow morning. Here’s a preview: if you are holding your breath for a sign that the NLRB will allow employers to draw lines to guide employees about what’s right and wrong (or permissible and impermissible), you will suffocate.

Time to re-read your non-competition agreements; Ohio Supreme Court issues ruling on enforceability by successors

Acordia of Ohio, L.L.C. v. Fishel [pdf], decided last week by the Ohio Supreme Court, is a pretty straight-forward case. In this case, four ex-employees claimed that Acordia could not enforce their non-competition agreements. They argued that the under the plain language of their covenants, the agreements were limited to the predecessor employer, and that there were no allowances in the agreements for a successor entity such as Acordia, which had acquired the original employer.

The Supreme Court agreed:

The agreements defined the “Company” only as “Frederick Rauh & Company,” the predecessor employer. Because the agreements did not extend the definition of “Company” to include successor entities, Acordia could not enforce them. Simply, the agreements lacked any language that specifically assigned rights to the new company….

The noncompete agreements between the employees and their original employers specified that they applied only to the specific companies that had originally hired each employee. Because the agreements made no provision for the continuation of the agreement upon any acquisition of the original company by another company, the agreements are not enforceable by the L.L.C. according to the agreements’ original terms past the two-year noncompete period agreed to by the employees and their original employers.

In other words, if have any current non-competition agreements that operate under Ohio law, you need to review them to ensure that they allow for successor entities. Otherwise, even a simple change in corporate structure could render your agreement unenforceable.

Going forward, non-competition agreements should:

1. Define “employer” to include the current entity, in addition to any successors and assigns.
2. Include a specific clause in the agreement, which provides that all rights in the agreement flow to “successors and assigns,” which are entitled to enforce the agreement against the employee.

Luckily for employers, Ohio law provides that continued employment is sufficient consideration to support a non-competition agreement. In other words, you should be contacting your counsel to review all non-competition agreements for compliance with the Acordia case, and redrafting and reissuing to employees where necessary.

Ohio joins the fray on employers asking for social media passwords

It was only a matter of time before Ohio joined the list of states to introduce legislation that would prohibit employers from asking for social media passwords. Senate Bill 351, introduced late last week, would amend Ohio’s employment discrimination statue to make it an “unlawful discriminatory practice” for employers to do any of the following:

• Ask or require an applicant or employee to disclose usernames or passwords associated with, or otherwise provide access to, a private electronic account of the applicant or employee;
• Fail or refuse to hire an applicant for employment, or discharge, discipline, threaten to discharge, discipline, or otherwise penalize an employee, if the applicant or employee refuses.

The bill defines “private electronic account” as “a collection of electronically stored private information regarding an individual, including such collections stored on social media internet web sites, in electronic mail, and on electronic devices.” It then broadly defines “social media internet web site” as “an internet web site that allows individuals to do all of the following”:

1. Construct a public or semipublic profile within a bounded system created by the service;
2. Create a list of other users with whom the individual shares a connection within the system; or
3. View and navigate the list of users with whom the individual shares a connection and those lists of users made by others within the system.

The bill does not prohibit an employer from monitoring the electronic accounts of employees or applicants on the employer’s own Email or Internet system.

As far an enforcement, the bill would permit aggrieved individuals to file a charge of discrimination with the Ohio Civil Rights Commission, or a private cause of action in court. It also allows the OCRC to levy fines of up to $1,000 for the first violation and up to $2,000 for each subsequent violation.

I’ve said it before and I’ll say it again, this is not a problem that needs fixing. Companies simply aren’t engaging in the type of conduct this bill seeks to legislate. I am troubled that the path this legislature chose is to seek to make this an unlawful discriminatory practice, on the same plane as race, sex, age, and disability discrimination. Moreover, there are no exceptions for industries that might have a legitimate reason to know what applicants or employees are doing on social sites (schools, police departments, financial services). The lack of any exceptions is a glaring omission from this legislation.

This bill is in its infancy. I will continue to monitor its status and update you with any movement in Columbus.

6th Circuit applies “but for” causation to ADA claims (but does it matter?)

More than a year ago, the 6th Circuit upheld its use of a “sole reason” causation standard in ADA cases, but invited the full 6th Circuit to revisit (and overrule) this issue. That en banc panel issued its ruling last Friday, and, expectedly, it overruled the Court’s prior use of the “sole reason” causation standard. Unexpectedly, however—in Lewis v. Humboldt Acquisition Corp. (6th Cir. 5/25/12) [pdf]—the Court replaced it with a similarly restrictive “but for” causation standard.

Relying on the linguistic similarities between the ADA and the ADEA, the Court looked to the Supreme Court’s decision in Gross v. FBL Financial Services for the appropriate causation standard:

[W]hat standard should trial courts use in instructing juries in ADA cases? Gross [v. FBL Financial Services] points the way. The ADEA and the ADA bar discrimination “because of” an employee’s age or disability, meaning that they prohibit discrimination that is a “‘but-for’ cause of the employer’s adverse decision.”

Case closed. Or is it? As one of the dissenting opinions points out, the 6th Circuit is very much in the minority in its interpretation of the ADA’s causation standard. “Significantly, a majority of our sister circuits have embraced the motivating factor standard in reviewing ADA claims.” (citing to the 1st, 2nd, 3rd, 4th, 5th, 8th, 9th, and 11th Circuits). Could this conflict among the circuits now head to the United States Supreme Court for resolution?

Or, is this issue a mere academic exercise? The ADA Amendments Act changed the ADA’s operative causation language. Pre-amendments, the ADA provided: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” The ADAAA, however, changed the “because of” causation standard to a “discriminate … on the basis of disability” standard. This alteration is significant, because it changes the key language in the ADA that had mirrored the ADEA, and upon which the 6th Circuit based its opinion that the rationale of Gross also applies to ADA claims. Is is splitting hairs to say that “because of” is materially different than “on the basis of?” Maybe. But, it is not insignificant that the ADAAA altered this key phrase.

As you can see, these issues are complex and, despite the en banc ruling, are far from settled. For employers, you are infinitely better off making reasonable accommodations and avoiding disability discrimination claims, so that you do not place yourselves in positions to have to worry about proper burdens of proof and causation standards. In other words, if you don’t put yourself in a position to be sued, because-ofs and but-fors simply don’t enter the equation.

WIRTW #227 (the “replay” edition)

Yesterday afternoon, I appeared on the The Proactive Employer, talking all things workplace social media with host Stephanie Thomas, fellow guest Molly DiBianca (of the Delaware Employment Law Blog and @MollyDiBi). Thanks to Stephanie for a great hour.

Luckily for you, if you missed yesterday’s hour live, its available for replay two different ways:

• Streaming via The Proactive Employer.
• Download via iTunes.

Now there’s no excuse for not listening. Enjoy your holiday weekend.

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

Discrimination

• How to lose a disability discrimination case in 5 easy steps… — from Eric Meyer’s The Employer Handbook Blog
• Second Circuit = The Avengers? Judges Create Alter Ego Liability — from Dan Schwartz’s Connecticut Employment Law Blog
• EEOC: Confederate Flag = Hostile Work Environment? — from Phil Miles’s Lawffice Space
• Religious employers, the ministerial exception and single moms—again! — from Robin Shea’s Employment and Labor Insider
• Title VII does not protect employee terminated because of illegal alien spouse — from EmployerLINC
• Another EEOC Systemic Lawsuit Bites The Dust In A Favorable Ruling For Employers — from Workplace Class Action Litigation
• Time to check the dress code? Can an employee be “too hot?” — from John Holmquist’s Michigan Employment Law Connection
• Getting Fired for Being “Too Hot” — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Illinois Passes Password-Privacy Law — from Delaware Employment Law Blog
• Are You a Victim of Social Media Discrimination? — from Social Media Today
• Don’t Search Cyberspace Without This — from Mark Toth’s Manpower Employment Blawg
• iPhone thief’s Disney cruise adventure goes on public display in owner’s Facebook album — from The Verge
• IBM stung by BYOD pitfalls — from TheAppleBlog

HR & Employee Relations

• Do temporary employees have rights? — from Evil HR Lady, Suzanne Lucas
• Expanding Ban the Box Legislation Impacts Small Business — from COSE Mindspring
• I Do Not Like to Fire People — from You’re the Boss Blog
• Five Employment Law Takeaways From American Idol — from TLNT
• Dear Evil Skippy: Can My Supervisor Make Me Use Less Perfume? — from Evil Skippy at Work
• 6 Reasons You’ll Be Investigating More Workplace Bullying This Year — from i-Sight Investigation Software Blog
• Whoomp, There It Is: Employees Are Skipping Work To Watch Sports — from Workplace Diva
• Female bus driver claims her boss licked her face — from New York Daily News
  

Wage & Hour

• Spring Tune-Up: Gas Stations Should Review Their Pay Policies and Recording Practices to Steer Clear of the DOL’s Recent Enforcement Initiative Targeting Them — from Wage & Hour Defense Blog
• Court Sends Collective Action to the Showers on Wage Claim for Time Spent Changing Clothes and Blows the Whistle on the “Clock” Starting when Traveling From the Locker Room — from Trade Secret / Noncompete Blog
• Taking FMLA leave does not affect employee’s obligations under non-FMLA attendance policies — from Employment Law Matters

Labor Relations

• What the U.S. Chamber Of Commerce Doesn’t Want You to Know About Your Workplace Rights — from Donna Ballman’s Screw You Guys, I’m Going Home
• 2nd Circuit Overturns NLRB, Holds Starbucks Can Limit Employee Union Flair — from Randy Enochs’s Wisconsin Employment & Labor Law Blog

Ohio Supreme Court upholds statewide workplace smoking ban

On November 7, 2006, Ohio voters passed a ballot initiative to
enact the Smoke Free Workplace Act. It became effective on December 7, 2006, and is codified in R.C. Chapter 3794.

Generally, to adhere to the Act, businesses must do four things:

• Prohibit smoking in any enclosed “public place” or “place of employment,” including areas immediately adjacent to locations of ingress or egress.
• Post no-smoking signs—with the toll-free enforcement number, 1-866-559-OHIO (6446)—at all entrances or areas of transition between non-regulated and regulated areas.
• Remove ashtrays and other tobacco receptacles.
• Not discharge, refuse to hire, or in any manner retaliate against anyone for exercising any rights under the workplace smoking ban law.

Yesterday—in Wymsylo v. Bartec, Inc. [pdf]—the Ohio Supreme Court unanimously upheld the constitutionality of the Smoke Free Workplace Act.

If you have been dragging your feet in enforcing this law in your business, or have been hoping for a reprieve from the Ohio Supreme Court, you are out of luck. You need to ensure that your business complies with the Act and is smoke free.

In addition, whether you are in Ohio or another state, and your business is to be smoke-free, you should adopt a formal smoke-free policy, which includes formally designating where on your property employees are allowed to smoke (if allowed at all).

Even terminations over “genitalia sandwiches” can generate lawsuits

The court properly granted summary judgment because reasonable minds could only conclude that appellant’s actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment.

I can promise you read that sentence correctly. It is the Ohio Supreme Court’s digest summary for Cantwell v. Franklin Cty. Bd. of Commrs. (Ohio Ct. App. 5/22/12) [pdf] You can do a double-take, a triple-take, or as many takes as you need. It is still going to say that a Franklin County jail guard, while delivering bologna sandwiches to inmates, asked an inmate to place his penis on a sandwich, took of cell phone photo of said penis sandwich, and fed said sandwich (sans penis) to another unsuspecting inmate while taunting him.

The lawsuit concerned whether these actions were in good faith, and not manifestly outside the scope of Cantwell’s employment or official responsibilities, which would determine whether the county had a duty to defend Cantwell in the prisoners’ subsequent civil rights lawsuits.

What could Cantwell possibly argue?

It was commonplace for jokes and pranks to take place at the Franklin County jail between inmates, as well as hazing to take place between deputies, and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his “joke” to give Copeland a genital-tainted sandwich was not manifestly outside the scope of his employment.

The explanation is a whole lot funnier than the joke. Needless to say, none of this amused the court, which affirmed the trial court’s dismissal of Cantwell’s claim.

From this mess of a case, I draw the following lesson. You cannot always guard against lawsuits by ex-employees. I am certain that given these facts, the county never dreamed it would be defending a lawsuit by this employee. Yet, he found a reason to sue. No termination (no matter the reason) is bulletproof. Even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every “i” is dotted and every “t” is crossed (with the help of counsel, if needed), and let the chips fall where they may.

Radio/Podcast appearance: Being Smart About Social Media in the Workplace

This Thursday, May 24, at 3 pm, Molly DiBianica (proprietor of the Delaware Employment Law Blog and tweeter extraordinaire @MollyDiBi) and I will be guests on The Proactive Employer, hosted by Stephanie Thomas. 

We will be discussing all things social media for employers, including providing tips on workplace social media policies, offering suggestions on how to ensure employees are using social media safely, and talking about how companies can be be smart about social media.

We will also be taking live questions, both via Twitter with the hashtag #TPE, and via call-in at (866) 472-5790. If you can’t join us live, the episode will also be available for streaming or download.

Molly and I go way back in the blawgosphere. She also contributed the chapter on privacy to my social media book, Think Before You Click, Strategies for Manging Social Media in the Workplace. Please tune in for what should be a very engaging and interesting conversation.

The obligatory post about the EEOC’s charge filing data

The EEOC has released state-by-state charge filing statistics for the past three years. Which types of discrimination are popular (and not so popular) with Ohio employees?

• Race discrimination: 35.4% of all charges
• Retaliation: 32.9%
• Disability: 29.6%
• Age: 28.6%
• Sex: 27.3%
• National Origin: 5.3%
• Religion: 3.5%
• Color: 1.7%
• Equal Pay: 0.9%
• Genetic Information: 0.3%

These numbers shouldn’t be that much of a surprise to any businesses.

What is more interesting (at least to me) is how Ohio fairs when compared to the other 49 states. For fiscal year 2011, there were 3,137 total charges of discrimination filed with the EEOC in Ohio. Overall, that number comprises 3.1 percent of all charges filed nationwide, placing Ohio 12th among the 50 states.

Ohio is 7th in overall population, yet 12th in EEOC filings. Is is possible that Ohio is more friendly to employers than smaller states such as Georgia, North Carolina, Virginia, Tennessee, and Alabama, all of which rank ahead of Ohio in the number of EEOC filings per year? Probably not. Instead, let me offer a different explanation. Ohio’s employment discrimination statute is quirky. It allows employees to proceed directly to court without first exhausting their administrative remedies by filing a charge with the EEOC (or its state equivalent).

Ohio businesses are facing their fair share of discrimination claims; they are just facing them in courts instead of in the agencies. This quirk fails Ohio businesses. Employees are able to bypass the EEOC’s crucial role in filtering out frivolous claims. Until Ohio’s legislators step up to the plate and fix this anomaly of our discrimination statute, our state’s business community will continue to be disadvantaged by defending the bulk of discrimination claims in a more costly and time-consuming judicial venue.

Can a poor performance review count as an “adverse action?”

For an act to be considered an “adverse employment action” sufficient to support a discrimination claim, it must constitute
”a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Traditionally, a negative performance review does not constitute an adverse employment action, unless “the evaluation has an adverse impact on an employee’s wages or salary.” Or does it?

In Goldfaden v. Wyeth Laboratories (5/14/12) [pdf], the Sixth Circuit concluded that a warning letter issued to an employee constituted an “adverse action” even though the employee quit her job before she could suffer any consequences from the warning:

She received a warning letter in September that limited her year-end performance evaluation to a three on a scale of one to five. However, she never made it to the year-end evaluation, as she resigned three weeks after receiving the evaluation. The parties dispute what the effect of the lower evaluation would have been…. We cannot know for sure what would have happened, but there was a possibility that she would have received a lower bonus. This doubt is sufficient to survive summary judgment….

This result is even more troubling because the same opinion affirmed summary judgment for the employer on Goldfaden’s constructive discharge claim. In other words, the warning letter was not so intolerable that it compelled Goldfaden to quit, but it nevertheless could rise to the level of an adverse employment action because it could, maybe, have resulted in a lower year-end bonus.

It’s cases like this one that make it so difficult (and often frustrating) to attempt to predict outcomes for clients.

WIRTW #226 (the “press 9 for more options” edition)

You’d think that with all the posting I do about Labor & Employment Law, it’s the only area in which my law firm—Kohrman Jackson & Krantz—practices. You’d also be very wrong. Our diverse practice also covers, for example, telemarketing law.

In fact, my parter, Brett Krantz, recently co-published an article on this issue:

Brett Krantz, Chair of the Litigation group, and associate Melissa Yasinow have co-authored an article with Mark Rasch, the director of Cybersecurity and Privacy Consulting at technology company CSC. The article, entitled Please Press #5 Now: How Businesses Can Use UETA and E-SIGN to Create Signed, Written Contracts Over the Telephone, explains how businesses can use recent federal and state pro-technology laws to create signed, written contracts over the telephone. Connections Magazine, the nation’s premier magazine for the telemarketing and teleservices industry, will be publishing a shortened version of the article in its upcoming July/August Issue. The full article has already been published online in Connections Magazine’s “White Papers” Section. Please click here to access the full article.

Enjoy!

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

Discrimination

• Is Being Gay a Choice? Should It Be Protected at Work? — from Jessica Miller-Merrell’s Blogging4Jobs
• “Teacher fired over pregnancy can sue religious school” — from Howard Bashman’s How Appealing
• EEOC now publishes charge data, by state. Have a look… — from Eric Meyer’s The Employer Handbook Blog
• New Decision On The EEOC’s Pre-Suit Investigation Requirement, Giving Nod To Investigation And Conciliation Tactics Criticized By Eighth Circuit — from Workplace Class Action Litigation
• EEOC, alcoholism and discrimination: an interesting new persepctive — from Employment Law Bits
• Hiring manager: “How old are you?” — from CareerDiva by CareerDiva, Eve Tahmincioglu
• Texas Federal Court Decision Addresses ADA and FMLA Issues Arising From Employee's Return From Alcohol Rehab — from Employer Law Report
• New York EEOC Intends to Enforce “Ban the Box” — from employeescreenIQ Blog
• Funding Blocked for EEOC Enforcement Guidance on Criminal Records — from National Review Online

Social Media & Workplace Technology

• Use social media? Memorize these vital 12 words — from Evil HR Lady, Suzanne Lucas
• A Call for Lean and Mean Social Media Policies — from Social Media Today
• HR Struggling with Facebook Snitches — from SHRM
• Social Media background checks: Big brother in reverse — from Mike VanDervort’s The Human Race Horses
• Relax – You’ll Never, Ever be Asked For a Facebook Password — from TLNT
• Why Delaware’s Proposed Workplace Privacy Act Is All Wrong — from Molly DiBianca’s Delaware Employment Law Blog
• Slowly Stripping Away Privacy Rights? — from Social Media Employment Law Blog
• Are Employees’ Social Media Connections The Property Of Their Employer? — from Eric Welter’s Laconic Law Blog
• Alleged voyeur boss cannot pursue Computer Fraud and Abuse Act claim — from Internet Cases
• Mobile Stats — from HR Examiner with John Sumser
• Avoiding an E-discovery Nightmare in a Workplace Investigation — from i-Sight Investigation Software Blog

HR & Employee Relations

• Could You Handle Being an Employee? — from You’re the Boss Blog
• Gratuitous Sex or Sex for Gratuities? An HR Story — from Robin Schooling’s HR Schoolhouse
• How to Remove Lies From Your Resume (and LinkedIn) Without Getting Fired… — from The HR Capitalist, Kris Dunn
• Lies, Statistics, and Resumes — from costofwork
• Lessons from Yahoo’s CEO debacle: Look into EVERY job candidate — from HR Cafe
• Terminated for Minor Offense Committed 40 Years Ago — from The Proactive Employer Blog
• Dear Evil Skippy: Should We Allow Dogs At Work? — from Evil Skippy at Work
• Carefully Defining “For Cause” Termination in Employment Contract Critical to Avoid Paying for Misconduct — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• When can an employer fire an employee for medical leave fraud? — from Robin Shea’s Employment and Labor Insider
• Two Health Conditions Combine to Qualify for FMLA — from Phil Miles’s Lawffice Space
• Seventh Circuit: Pharmaceutical Sales Reps Are Exempt Administrative Employees — from Healthcare Employment Counsel
• Seventh Circuit Concludes that “Travel Time” Following Clothing Change Is Not Compensable, Setting Up a Circuit Split — from Wage & Hour Counsel
• Compensatory Time Is Only For Exempt Employees, As Law Firm Class Action Settlement Illustrates — from Wage & Hour - Development & Highlights
• Wage-and-hour litigation outpacing all other workplace class actions — from Business Insurance

Labor Relations

• District Court Strikes Down National Labor Relations Board's New “Quickie” Election Rule — from Seth Borden’s Labor Relations Today
• NLRB Suspends New Election Rules After Court Ruling — from Dan Schwartz’s Connecticut Employment Law Blog
• Your “At-Will” Policy is in Danger! — from Mike Haberman’s Omega HR Solutions

6s wild! 6th Circuit affirms contractual 6 month limitation for employment claims

Between the following two options—a federal statute or a private employment agreement—which wins?

• The federal statute (USERRA), which, at the time, provided for a four-year statute of limitations, and which states that it “supersedes any … contract, agreement, … or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter.”

–or–

• The employment agreement, which provides, “I … agree that any action, claim or suit against [Defendant] arising out of my application for employment, employment, or termination including, but not limited to, claims arising under State or Federal civil rights statutes must be brought within one hundred and eighty (180) days of the event giving rise to the claim or be forever barred. I waive any and all limitation periods to the contrary.”

In Oswald v. BAE Industries (5/16/12) [pdf], the 6th Circuit ruled that the contract trumped USERRA.

After returning from serving with the Marines in Iraq, Jerome Oswald claimed that BAE limited his duties and responsibilities compared to his pre-deployment work, failed to give him a raise, transferred him to a lesser position, and ultimately fired him.

Unfortunately for Oswald, he waited until almost three years after his termination to file suit against BAE. The 6th Circuit concluded that his feet-dragging doomed his lawsuit:

Plaintiff’s employment contract does not eliminate all procedural rights in that it only shortens the time frame that Plaintiff can raise a USERRA claim. Because the contractual period of limitations diminished a right under USERRA that was merely procedural, [it] does not override the contractual limitations period on that basis….

Because Plaintiff’s complaint was untimely under the 180-day period in the contract, the district court did not err in granting summary judgment to Defendant….

There are two key takeaways from this case:

1. This case might no longer good law under USERRA. In 2008, the Veterans’ Benefits Improvement Act provided that there “shall be no limit on the period for filing the complaint or claim” under USERRA. If there cannot exist any “limit on the period for filing,” it is unlikely that a contract can impose such a bar.
2. Even if employers no longer can shorten the statutory period to file a claim under USERRA, this case serves as a good reminder that employers can use contractual provisions to shorten the statutory period for host of other claims. In a state like Ohio, which has a six-year limitations period for all discrimination claims except age, the ability to significantly shorten the filing period is a powerful weapon that too few employers deploy.

Terminated CFO illustrates the confidentiality risks social media pose

According to a recent survey by Intel (h/t: Lifehacker), 85% of American adults share information about themselves online, while 90% think others are sharing too much. Maybe the former CFO of Francesca’s Holdings Corp., Gene Morphis, should have heeded the latter and shared less about his company’s inner workings.

On Monday, Francesca’s announced that it fired Morphis for improperly communicating company information through social media. A quick review of Morphis’s Twitter feed and (very public) Facebook Wall offers some possible suspects.

Maybe it was this tweet:

Or maybe it was this one:

Or maybe this one:

Or, maybe it was this Facebook post:

Or, maybe it was this one:

Social media presents a real risk of corporate breaches of confidentiality. It is easy to tell your employees, “Think before you click.” (Hey, that’s a catchy title for a book.) Yet, 76% of the Inc. 500 lack a social media policy for their employees, and 73% of all employers conduct no social media training. If you aren’t educating your employees about the risks and benefits of social media, both in and out of the workplace, you are not only missing a golden opportunity, but you also leaving yourself exposed to breaches of confidentiality such as that which befell Francesca’s. These issues are not going away.

Businesses that ignore the possibility that their employees can divulge trade secrets and other confidential and proprietary information via Twitter, Facebook, and other social media do so at their own peril. Did Morphis’s disclosure harm his ex-employer? Probably not. But, the company’s swift and decisive reaction to any breach of confidentiality will make it easier down the road for it to protect its confidential information when it really matters. Mark my words. The day will come when a court will invalidate a corporate trade secret because of a lax social media policy.

As an aside, I’m leading off tomorrow’s NLRB Region 8 Labor Law Conference [pdf], discussing social media policies and protected concerted activity. NLRB Acting General Counsel Lafe Solomon is the lunch speaker. I am very interested to hear his thoughts on how employers can balance their right to limit disclosures of confidential information against his perception that social media policies that prohibit such disclosures violate the NLRA.

Reasonable accommodations and commute times

How far do you have to go to accommodate an employee’s disability? In Regan v. Faurecia Automotive Seating (5/10/12), the 6th Circuit provides some boundaries, and teaches us a lesson about accommodation best practices.

Alisha Regan—an assembly line worker at Faurecia—suffers from narcolepsy, a sleep disorder that causes excessive sleepiness and frequent daytime sleep attacks. When her supervisor pushed back by an hour the start and end times of her shift, Regan advised that her narcolepsy would make it difficult for her to get to work, as it would push her commute into rush hour, causing longer commute times and a greater likelihood of sleepiness.

When the company refused to allow her to work her original schedule, Regan resigned, noting the “tremendous consequence” the change in work hours would have on her narcolepsy. She then filed suit, claiming that the company’s refusal violated the disability discrimination laws.

The court of appeals affirmed the trial court’s decision that the ADA does not require an employer to accommodate an employee’s commute to and from work:

While an employer is required to provide reasonable accommodations that eliminate barriers in the work environment, an employer is not required to eliminate those barriers which exist outside the work environment. We find … that the Americans with Disabilities Act does not require Faurecia to accommodate Regan’s request for a commute during more convenient hours.

This case is not the first I’ve covered discussing whether an employer has an obligation to provide a reasonable accommodation for an employee’s commute. For example, in Colwell v. Rite Aid Corp., the 3rd Circuit reached the opposite conclusion, finding that an employer must change an employee’s work hours if needed to enable a disabled employee to commute to and from work.

The real lesson here isn’t whether employers do, or do not, have to accommodate a disabled employee’s commute to and from work. Given the conflict between Regan and Colwell, I’d say this issue of open for interpretation (even though Regan is controlling in Ohio). Instead, the lesson is how employers should handle these issues when they arise. The ADA requires that the employer and employee engage in an interactive process (a back and forth to determine whether and what type of accommodation would be effective).

What shouldn’t you do in a situation such as this one? Don’t dismiss the employee’s request outright (as the employer appears to have done in Regan). Don’t force the employee to take FMLA leave as a prerequisite to the interactive process (as the employer in Regan appears to have done).

Each conversation with an employee (which should be documented in his or her confidential medical file) is an opportunity to establish your consideration of the employee’s specific needs in light of the specific and essential job requirements. If you legitimately cannot start a production line an hour early to accommodate an employee’s commuting schedule request, then so be it. But, how can you (and a court) judge the reasonableness of your decision if you never even have the conversation in the first place?

I don’t like this opinion; Facebook “like” as free speech?

One of the biggest misnomers that people have about their rights in the workplace relates to free speech and the 1st Amendment. I could comfortably retire if I had a dollar for every time in my career that I have heard, “But I have a right to free speech; I can say what I want and not get fired.” The reality is that private-sector employees have no right to free speech. The 1st Amendment only protects public employees.

The issue of free speech arose in a novel context in Bland v. Roberts (E.D. Va. 4/24/12). B.J. Roberts, the sheriff of Hampton, Virginia, was running for reelection. He learned that some of his employees supported his opponent, Jim Adams, after discovering that they had “liked” Adams’s Facebook page. After Roberts won reelection, he decided not to retain the services of the Adams supporters. The employees claimed that Roberts had violated their free speech rights (as exercised via their Facebook “like” of his opponent).

The court disagreed, concluding that merely clicking the “like” button on a Facebook page is not Constitutionally protected speech:

It is the Court’s conclusion that merely “liking” a Facebook page is insufficient speech to merit constitutional protection…. It is not the kind of substantive statement that has previously warranted constitutional protection. The Court will not attempt to infer the actual content of [the] posts from one click of a button…. For the Court to assume that the Plaintiffs made some specific statement without evidence of such statements is improper.

I was going to write a long, detailed, explanation of how the court got it wrong in this case, how “liking” a Facebook page expresses one’s support for, or positive opinion about, that Page. But, Professor Eugene Volokh, writing at The Volokh Conspiracy, beat me to it:

A Facebook “like” is a means of conveying a message of support for the thing you’re liking. That’s the whole point of the “like” button; that’s what people intend by clicking “like,” and that’s what viewers will perceive. Moreover, the allegation is that the employees were fired precisely because the Sheriff disapproved of the message the “like” conveyed. I would treat “liking” as verbal expression—though it takes just one mouse-click, it publishes to the world text that says that you like something….

To be sure, the message isn’t highly detailed; it doesn’t explain why one is supporting the “liked” person or cause. But the First Amendment protects speech even when the speech is not rich with logical argument, or is even vague or ambiguous….

Putting a “Jim Adams” bumper sticker on one’s car would be constitutionally protected. Putting such a sign on one’s lawn would be constitutionally protected. “Liking” Jim Adams on Facebook is equally constitutionally protected. If the plaintiffs appeal, I expect the Fourth Circuit will reverse the district court on this point.

Thanks Professor Volokh. I couldn’t have said it better myself.

[Hat tip: Lawffice Space and Delaware Employment Law Blog]

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.