6th Circuit moves the line between same-sex harassment and bullying

Oil rigs must be awful places to work. Oncale v. Sundowner Offshore Services—the U.S. Supreme Court case the first recognized that Title VII protected employees from same-sex harassment (and which included allegations such as name-calling suggesting homosexuality, physical assaults, and attempted rape)—involved an oil platform. Yesterday, the 6th Circuit decided Wasek v. Arrow Energy Services [pdf], another same-sex harassment case involving oil rig employees. Wasek, however, did not turn out as well for the complaining employee as did Oncale.

To save money after accepting a job with Arrow Energy, Harold Wasek decided to share a hotel room with one of his new co-workers, Paul Ottobre. As it turns out, that decision proved to be a poor one. Ottobre tormented Wasek by grabbing his buttocks, poking him in the rear with a hammer handle and long sucker rod, making comments such as “you’ve got a pretty mouth,” “boy you have pretty lips,” and “you know you like it sweetheart,” telling sexually explicit jokes, stories, fantasies, and calling Wasek names. Wasek believed that Ottobre acted like this because he was bisexual.

When Wasek complained, his superiors first told him not to “make waves [by] whining,” and later told him he should just “kick [Ottobre’s] ass,” and that they should “duke it out” to “get it out of [their] systems.” When Wasek pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek could not handle it he “should find another line of work.”

The 6th Circuit affirmed the dismissal of Wasek’s harassment claim:

Title VII is not “a general civility code for the American workplace.” … [T]he conduct of jerks, bullies, and persecutors is simply not actionable under Title VII unless they are acting because of the victim’s gender….

No evidence exists that Ottobre was motivated by a general hostility towards men. And the oil rig was not a mixed-sex workplace, so there is no possibility of comparative evidence. Thus, in order to infer discrimination, Wasek must demonstrate that Ottobre was homosexual. In his deposition, Wasek speculated that Ottobre was “a little strange, possibly bisexual.”

We need not delve into what inferences — if any — might be drawn from a harasser’s bisexuality. A single speculative statement in a deposition cannot be the first link in the “chain of inference” that Oncale recognizes may follow from the harasser’s nonheterosexuality…. Therefore, Wasek’s Title VII hostile work environment claim cannot survive.

Advocates will argue that this case is proof of why we need legislation against generalized workplace bullying. To the contrary, the troubling aspect of this case is not the dismissal of the harassment claim, but the dismissal of Wasek’s retaliation claim (an issue that will get its own post next week).

Regardless of where you stand on the issue of whether there should exist a law against workplace bullying, employers should use this case as a teaching tool on how not to respond to a harassment complaint. It is shameful that the supervisors’ told Wasek to stop whining, suggested fisticuffs to settle the issue, and ultimately chalked it up to the nature of the workplace. There are a million better ways this employer could have handled these complaints, and not have to rely on a legal argument that this misconduct is not actionable Title VII harassment.

Pop quiz: Can you condition a job offer on a withdrawal of an EEOC charge?

Consider the following chain of events:

1. 8/14: Pregnant Employee, armed with a doctor’s note, asks for modified duty, and employer terminates her.
2. 8/15: Employee files an EEOC charge.
3. 8/18: Employer reconsiders, changes its mind, and decides to offer a light-duty position, consistent with its policy to offer available light-duty positions to employees with medical conditions.
4. 8/20 – 8/28: Employer receives notice of EEOC charge.
5. 8/28: Employer communicates offer of light duty position to Employee, but on the condition that she drop her EEOC charge.
6. 8/29 and thereafter: Employee refuses job offer, and is never offered another position with the company.

Did this employer retaliate by conditioning the light-duty job offer on the employee dropping her EEOC charge? According to Chapter 7 Trustee v. Gate Gourmet, Inc. (11th Cir. June 11, 2012), the answer is an unconditional “yes.”

A jury reasonably could find from the sequence of events that Gate Gourmet decided to unconditionally offer Williams the light-duty silverware wrapper position and would have done so but for the fact that she filed an EEOC charge. Once it learned that she had, Gate Gourmet changed what would have been an unconditional offer into a conditional offer in which she could have the position (with back pay) only if she dropped the charge. When Williams would not drop it, Gate Gourmet rescinded the offer. This permissible interpretation of the evidence creates a reasonable inference that the statutorily protected filing of and refusal to settle the EEOC charge caused Gate Gourmet to deny Williams a light-duty position, which is a materially adverse action.

I’ve written before how employers must treat pregnant employees the same (no better and no worse) as other employees based on their ability or inability to work. Because this employer had a policy to offer available light-duty positions to employees with medical conditions, it was required to offer the light-duty silverware wrapper position to Williams. That it decided to rescind its offer only after receiving notice of Williams’s EEOC charge is unconditionally and unlawfully retaliatory.

Reaching the 93%: NLRB launches webpage describing protected concerted activity

When asked the type of law I practice, I always respond with “management-side labor and employment law.” In reality, while I have many successful engagements under my belt in the world of traditional labor law, I am much more of an employment attorney than a labor attorney. And, if you ask 100 management-side labor and employment lawyers whether they identify more with labor law or employment law, at least 95 will tell you employment law. It’s not our fault. It’s just that as union membership has dwindled, so have the opportunities to practice traditional labor law.

Currently, only 7 percent of private sector employees belong to a labor union. Doing the math, that leaves 93 percent of the private sector workforce as non-unionized. Yet, the National Labor Relations Board’s ability to impact the workplace is not limited by unions’ 7 percent reach.

Yesterday, the NLRB launched a webpage dedicated to protected concerted activity, which highlights 12 recent cases litigated by the NLRB involving protected concerted activity. According to the NLRB:

The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away (emphasis added).

Trust me, it’s not a coincidence that the phrase “even if they aren’t in a union” prominently appears on this webpage above the fold. It’s a calculated public relations strategy.

According to the NLRB, “Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.” If the agency is being honest, I bet it would want to add a zero after that 5. The NLRB wants to be the go-to agency for employees fired for talking about work. It is in the process of reinventing itself so that it remains relevant, even as labor unions become increasingly irrelevant. Businesses must prepare themselves for increased knowledge by their employees on these issues, along with the increased enforcement efforts by the NLRB.

BREAKING: SCOTUS rules pharmaceutical reps are exempt outside salespeople

Today brings a bonus second post, because the Supreme Court just released its long-awaited ruling in Christopher v. SmithKline Beecham Corp. [pdf] The Supreme Court, by a 5-4 margin, held that pharmaceutical sales representatives are exempt, outside salespeople to whom employers need not pay overtime.

For all of the background on this case you could want, click through the following from my archives:

• Supreme Court to hear case on scope of outside sales exemption (and hopefully scope of DOL’s power)
• 2nd Circuit issues groundbreaking ruling on sales reps and overtime payments
• Do you know? The FLSA’s exemptions for salespeople

In summary, the Court concluded the following:

     1. To be considered a salesperson, one need to actually consummate a transaction. It is sufficient that the promotional work performed by the employee can lead to a sale.

This rationale rebukes the argument of the Department of Labor, which the Court called “quite unpersuasive” and lacking the hallmarks of thorough consideration.”

     2. Non-binding commitments from physicians to prescribe certain drugs qualify as sales under the FLSA’s outside sales exemption.

This rationale applies a common-sense approach to a statute that is often confusing and too rigidly applied.

To me, the following is the million dollar quote from the Court:

Our holding also comports with the apparent purpose of the FLSA’s exemption for outside salesmen. The exemp­tion is premised on the belief that exempt employees “typically earned salaries well above the minimum wage” and enjoyed other benefits that “set them apart from the nonexempt workers entitled to overtime pay.” … It was also thought that exempt employees per­formed a kind of work that “was difficult to standardize to any time frame and could not be easily spread to other workers after 40 hours in a week, making compliance with the overtime provisions difficult and generally precluding the potential job expansion intended by the FLSA’s time­ and-a-half overtime premium.” … Petitioners—each of whom earned an average of more than $70,000 per year and spent between 10 and 20 hours outside normal busi­ness hours each week performing work related to his as­ signed portfolio of drugs in his assigned sales territory—are hardly the kind of employees that the FLSA was intended to protect. And it would be challenging, to say the least, for pharmaceutical companies to compensate detailers for overtime going forward without significantly changing the nature of that position.

I have long argued that the FLSA is an anachronistic maze of rules and regulations that does not well fit within the realities of the 21st century workplace. It seems that at least 5 members of the Supreme Court are inclined to agree with me. This excerpt provides hope for businesses that in the face of an overly-active Department of Labor and an overly confusing statute, courts can provide relief by adopting common sense interpretations.

For more on this important SCOTUS ruling, you can read the early reactions of some of my blogging friends (I’m certain more of the employment law blogging illuminati will weigh in today and tomorrow):

• Dan Schwartz’s Connecticut Employment Law Blog
• Phil Miles’s Lawffice Space

Plagiarism (a story with a happy ending)

I made a startling discovery on Friday. In last week’s WIRTW, I gave a shout out to the Meritas Social Media Guide for Lawyers v. 2.0. (In the name of full disclosure, my law firm, Kohrman Jackson & Krantz, is the Cleveland member firm of Meritas, an international alliance of full-service law firms, and its Social Media Guide features my blog.) One of the guide’s authors, Ethan Wall, took to Twitter to thank Daily Legal Law for mentioning the Social Media Guide. The only problem is that Daily Legal Law had plagiarized my column from Friday, reprinting it word for word.

I am all for other websites and blogs being so enamored with my content that they want to run it on their sites. Please, have the kindness to email me first to ask permission (I rarely say no), and then provide proper attribution. Don’t copy and paste my copyrighted content, and exacerbate your evilness by listing someone else as the author.

This story has a happy ending. Five minutes of easy research led me to DailyLegalLaw.com’s web host, HostGator, to whom I sent a takedown letter under the Digital Millennium Copyright Act. Yesterday, I received the following email from HostGator:

HostGator took down the entire website. If you visit DailyLegalLaw.com, this message is all you will find:

If you have employees posting content for your business online, remind them that plagiarism is illegal, that copyrights have meaning, that violating others intellectual property rights has consequences for the company (such as infringement lawsuits, civil fines, and criminal penalties), and that plagiarism is a terminable offense. Build these ideas into your social media, online communication, or similar policy, and re-enforce the concept in the training of your employees on responsible and legal online communications. Also, if you are regularly publishing content, it is wise to monitor the Web to check for stolen content, so that you can act swiftly to protect your IP.

To the proprietors of DailyLegalLaw.com: If you are going to steal copyrighted material, at least have enough common sense not to steal it from the one group certain enough to know how to protect their IP rights—attorneys. DailyLegalLaw.com, you are free to copy this post (and only this post) and paste it, in its entirety, on any of your other websites.

WIRTW #229 (the “turn the world on with her smile” edition)

I’ve never seen a full episode of The Mary Tyler Moore Show. Thus, I did not understand why Workforce ranked it as a number 1 seed in its 90th Anniversary Pop Culture Bracket. I’m a child of the 80s, and Cheers (under-seeded as an 8, by the way) has always made more sense as a workplace comedy. That is, until last night. I walked into my in-laws house and this was on their TV:

Now it all makes sense. And I’m going to start catching up on this lost gem on Hulu.

Here’s the rest of what I read this week (and last week):

Discrimination

• “Discrimination lawsuits double as definition of ‘disability’ expands” — from Walter Olson’s Overlawyered
• TSA Screener May Wear Religious Bracelet While on Duty — from Joe’s HR and Benefits Blog
• Be Careful What You Wish For: Walmart Faces Thousands of Lawsuits as Result of Class Action Victory — from Chris McKinney’s Texas Employment Law Blog
• After partial victory, plaintiff seeks cert in 5th Circuit same-sex harassment case — from Mike Maslanka’s Work Matters
• Customer Created Hostile Work Environments as told through a Homer (Simpson) Like Epic of Naked Golf, Butt Skills & Club House Beatings — from Jason Shinn’s Michigan Employment Law Advisor
• Association Is Not A Protected Category or Is It? — from Mike Haberman’s Omega HR Solutions
• EEOC brews up case — from BostonHerald.com

Social Media & Workplace Technology

• The Social Media Guide for Lawyers v. 2.0 — from Ethan Wall’s Social Media Law & Order
• Employers, Are Your Employees Minding Their Own Business? — from Molly DiBianca’s Delaware Employment Law Blog
• US Social Media by the Numbers – May 2012 — from Jessica Miller-Merrell’s Blogging4Jobs 
• Uses of Social Media for Corporate Counsel - Investigating & Defending Claims — from From the Sidebar
• 7 Essentials of a Social Media Policy That’s Actually Useful — from Radian6
• Is Your Workplace BYOD? Know the Risks! — from Stephanie Thomas’s The Proactive Employer Blog
• BYOD wave sparks big security concerns — from TheAppleBlog

HR & Employee Relations

• Do Noncompetes Kill Creativity? — from Phil Miles’s Lawffice Space
• Valid Arguments on Both Sides Re: Use of Credit Reports for Employment Screening — from Nick Fishman’s employeescreenIQ Blog
• No flush, but two of a kind win in a workplace toilet dispute — from Eric Meyer’s The Employer Handbook Blog
• Office love contract policy: What does this mean to you? — from Employment Law Bits
• Should couples work for the same company? — from Suzanne Lucas (Evil HR Lady) at CBS Money Watch
• You’re Damned if You Fire an Employee At Will for No Reason — from damnedif
• Some Hiring Managers Rate the Attractiveness of Your Spouse… — from The HR Capitalist, Kris Dunn
• Mastering the Finer Points of American Slang — from Alina Dizik at The Wall Street Journal

Wage & Hour

• How Is 2012 Like 1947? — from Wage and Hour Laws Blog
• Myles v. Prosperity Mortgage: Dukes Inapplicable to FLSA Certification — from Impact Litigation Journal
• Can Your Boss Fire You For Taking Vacation? — from by Donna Ballman’s Screw You Guys, I’m Going Home

Labor Relations

• Guest Post: NLRB Acting General Counsel Addresses At-Will Disclaimers and More at CBA Annual Meeting — from Dan Schwartz’s Connecticut Employment Law Blog
• The NLRB Acting General Counsel’s third memo on social media: Not so fast — from John Holmquist’s Michigan Employment Law Connection
• Workers Win Facebook Fight Against Huge Supermarket Chain — from Workplace Fairness
• Who Can It Be Now: Employers Told to Know Who Their Supervisors Are — from Employment Essentials
• NLRB Returns for Round Two in Fight for “Ambush” Elections — from LaborPains.org
• Are Unions Necessary? Great Post from The Atlantic — from Labor Relations Institute
• Duke Study Suggests That “Unions Are Better For Your Health” — from TLNT

25 million reasons to tell a good story

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in.

The allegations of racial harassment in Turley v. ISG Lackawanna Inc. are horrible. They involve graffiti about King Kong and the KKK, a toy monkey with a noose around its neck tied to the plaintiff’s car, and death threats. For the full flavor, I recommend reading the court’s opinion denying (in part) the employer’s motion for summary judgment.

Yesterday, the jury returned a $25 million verdict in favor of Mr. Turley on his claims of racial harassment and intentional infliction of emotional distress. According to the Buffalo News, one of the employer’s themes at trial was that “much of what happened at the steel plant is the kind of ‘trash-talking’ that’s common in manufacturing facilities.”

I once handled a case with similarly egregious allegations of racial harassment (KKK graffiti, liberal n-bombs, threats to drag the plaintiff tied to a truck, and a fistfight with his allegedly racist supervisor). The case settled on the eve of trial for several decimal points less than $25 million.

At trial, I was not planning on debasing the plaintiff’s allegations by challenging their veracity (there were too many witnesses that would verify most of them), or by portraying the events as something they were not—such as horseplay or trash-talking. Instead, I built my case around the fact that the plaintiff had resigned in the face of these allegations and voluntarily chose to return to the same workplace a few months later. He only sued (I would argue) out of embarrassment after losing a fight. In other words, I was planning to try the case by challenging the plaintiff’s perception of the workplace and the harm it caused him, not the racial motivation of his co-workers.

I know nothing about Turley v. ISG Lackawanna other than what I’ve read in the above-linked opinion and news story. But, it strikes me that likening KKK graffiti and a toy monkey with a noose around its neck as common “trash talking” is a recipe for a disaster, even if $25 million strikes me as excessive.

Vague complaint dooms employee’s retaliation lawsuit

Susanne Pintagro worked for Sagamore Hills Township as an administrative assistant. When a newly hired intern made her feel “uncomfortable and concerned for [her] safety” she took her concerns to the township’s trustees. The trustees determined that because Ms. Pintagro and the intern had to work the same schedule, and gave her the choice of resignation or termination. After Ms. Pintagro resigned, she sued, claiming, among other things, that the township retaliated against her for reporting the intern’s workplace harassment.

In Pintagro v. Sagamore Hills Twp. (Ohio Ct. App. 5/23/12), the court of appeals affirmed the dismissal of her retaliation claim. It concluded that Ms. Pintagro had not engaged in protected activity sufficient to raise the protections of Ohio’s anti-retaliation statute:

It was Ms. Pintagro’s burden … to establish that she engaged in a protected activity, that is, to demonstrate that she “opposed an unlawful discriminatory practice” such as harassment because of her “race, color, religion, sex, military status, national origin, disability, age, or ancestry.” …

Ms. Pintagro also has not presented any authority for her argument that a court should infer discriminatory intent when an employer fails to investigate a claim of workplace harassment…. Even assuming that [the] actions constituted harassment, it is as likely that his conduct was motivated by a personality conflict or other non-discriminatory reasons as it is that it was motivated by prejudice.

In other words, because Ms. Pintagro could not prove that she complained about unlawful harassment, her retaliation claim failed.

Repeat after me:

We will not do what Sagamore Hills Township did in this case.

When an employee comes to you with a complaint about a co-worker, do not ignore it, do not fail to investigate it, and do not fire the employee (or force her to resign). Yes, you might successfully defend a subsequent retaliation lawsuit based on the vagueness of the complaint. But, you might also step in a huge pile. This court refused to interpret a woman’s complaint than a man made her “uncomfortable and concerned for [her] safety” as a complaint about sexual harassment. Another court, however, could just as easily conclude that a jury should have the final say in interpreting that complaint.

Constructive discharges cannot exist in a vacuum of illegality

A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. Usually, a constructive discharge arises in the context of a discrimination lawsuit, satisfying the “adverse action” necessary to support the claim.

What happens, though, when there is no connection between the resignation and the law alleged to have been violated. Can an employee claim that a constructive discharge occurred in this vacuum? Kemper v. Springfield Twp. (Ohio Ct. App. 6/6/12), says no.

Patrick Kemper worked as a patrolman for the Springfield Township police department. The department had a formal policy requiring employees to submit a written request, and receive written permission, before engaging in outside work. Kemper planned to start a side security business. He discussed the idea with his supervisor, Chief David Heimpold, who told him that there would have to be precautions to prevent any conflict with police business. A few months later, Kemper submitted a letter to the department misstating that Heimpold had given permission to operate the business. When the township administrator, Michael Hinnenkamp, confronted Kemper with his lie, and with the prospect of an internal investigation, likely termination, and the loss of his pension and benefits, he resigned.

Kemper sued, claiming a constructive discharge related to an FMLA leave he was taking at the time. The jury awarded Kemper $491,000. The court of appeals agreed that the township had constructively discharged Kemper:

Hinnenkamp let it be known that any disciplinary proceeding would in all likelihood end in termination and that Kemper would lose his pension and other benefits…. Kemper had reasonably believed termination to be a foregone conclusion….

The court concluded, however, that the constructive discharge was lawful: 

But our inquiry does not end with the conclusion that Kemper produced sufficient evidence with respect to the alleged constructive discharge. A plaintiff must also establish a connection between the exercise of FMLA rights and the adverse employment action…. All of the evidence demonstrated that Kemper’s acknowledged dishonesty was the basis for the challenged discharge. There was no threat of discipline prior to the letter submitted to Heimpold and no indication in the record that Kemper's absences—or the conditions that led to those absences—bore any relationship to the adverse employment action.

Employees resign all the time, sometimes for reasons related to poor treatment by their employers. As this case makes clear, unless that poor treatment is connected to protections provided by the law, the resignation cannot form the basis for a lawsuit.

Know when to fish, and when to cut bait

I spent last week on Hilton Head Island, South Carolina. If you’ve never been there, do yourself a favor a take a trip. It's about as perfect of a vacation spot you can find in the continental 48 (see sunset below).

On the last day of our vacation, my family took a dolphin cruise through the Calibogue Sound. It was a hands-on trip for the kids. They got to cast a fishing net, pull up a crab pot, and fish for shark. The ship’s captain told us that they usually catch a lot of shark. For example, the day earlier they had reeled in 19, including two baby hammerheads. So, it was with much excitement that my daughter cast her line into the sound. After about 5 minutes (an eternity for a 6-year-old) she started asking when she would catch her shark. My wife explained that fishing is more about patience and relaxation than actually catching fish. As you would imagine, that did not go over so well with my newly minted 1st grader, although she did stick with it and enjoyed the experience. We, however, were not the only ones having issues. The captain moved the boat to what he hoped would be more fertile water. It wasn’t. She moved again, hoping the third time would be the charm. It wasn’t, and she had to call it a day. Indeed, on our cruise, only one lone shark was reeled in (by the boy next to us, much to my daughter’s chagrin).

As I am wont to do when I am not blogging, I began to think about what this tale could teach you, my readers. Much like fishing, in dealing with marginally performing workers, employers must know when to fish and when to call it a day. And, much like our ship’s captain, you usually don’t quit at the 1st sign of failure.

Employees are investments—of time, training, salary, and benefits. Unless an employee commits an egregious violation of the rules that cannot be tolerated, most deserve multiple chances to prove themselves worthy. Performance problems are not terminable offenses; they are teaching opportunities. Use them to hone your employees, and only terminate when an employee proves himself or herself un-teachable. You will be surprised how many employees you can rehabilitate (and investments you can save) merely by resisting the urge to cut bait too early on your marginal performers.

I’ll miss experiencing the sunsets at Harbour Town, but I’m happy to be home, and, believe it or not, happy to be back at work.

(If you’re interested in reading more about our vacation—and who wouldn’t be—you can jump over to my wife’s blog).

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

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

http://www.ohioemployerlawblog.com/2012/03/despite-what-some-think-employers-do.html

Best of: 10 thoughts for your mobile device policy

10 thoughts for your mobile device policy:

http://www.ohioemployerlawblog.com/2012/02/10-thoughts-for-your-mobile-device.html

Best of: Disability discrimination law in Ohio is a mess

Disability discrimination law in Ohio is a mess:

http://www.ohioemployerlawblog.com/2012/01/disability-discrimination-law-in-ohio.html

See also Courts are finally starting to apply ADAAA—and it ain’t pretty:

http://www.ohioemployerlawblog.com/2012/03/courts-are-finally-starting-to-apply.html

Best of: “Friending” co-workers depends on your level of organizational risk tolerance

“Friending” co-workers depends on your level of organizational risk tolerance:

http://www.ohioemployerlawblog.com/2012/01/friending-co-workers-depends-on-your.html

See also Latest stats about supervisors being “Facebook friends” with employees reveals interesting generational data:

http://www.ohioemployerlawblog.com/2012/02/latest-stats-about-supervisors-being.html

Best of: Trying to make sense of the NLRB’s lastest social media missive? Good luck

Trying to make sense of the NLRB’s lastest social media missive? Good luck:

http://www.ohioemployerlawblog.com/2012/01/trying-to-make-sense-of-nlrbs-lastest.html

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.