WIRTW #234 (the “have it your way” edition

Recently, Reddit listed the nine menu items that fast food workers say you should never eat at one of their restaurants. I think number 10 should be anything with lettuce on it from a Mayfield Heights, Ohio, Burger King. Earlier this week, the franchise owner fired three employees who believed they had anonymously posted the following photo of one of them using bins of lettuce as shoes:

Here’s the full story, as reported by WKYC:

The lesson for employers and employees? Online photos are not really anonymous. They almost always contain something called “metadata,” which tells when and where the photo was taken. In this instance, the metadata enabled the franchise to track down, and fire, the offending employee. In fact, according to Mashable, it took all of 20 minutes for someone to decipher the metadata, post the address of the store, contact the news, and inform Burger King’s corporate website.

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

Discrimination

• Is obesity a disability under the new ADA? Probably. — from Robin Shea’s Employment and Labor Insider
• Court Ruling Highlights Effect of Obesity on Employers — from Thompson’s HR Compliance Expert
• 7 ways to avoid trouble with the EEOC — from Inside Counsel
• What is Discrimination? — from ERC Insights Blog
• Solving the Smelly Problem of Fragrance-Induced Disabilities — from Washington Workplace Law
• Cocktail Waitresses, Discrimination, and the Entertainer Exemption — from Stephanie Thomas’s The Proactive Employer Blog
• How Not To Retaliate — from Troutman Sanders HR Law Matters
• Marriage and the Workplace - Not Always a Perfect Match — from Jason Shinn’s Michigan Employment Law Advisor
• Sleeping at Work Probably Won't Help Plaintiff's Discrimination Claim — from Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Discovery of Plaintiff's Social-Networking Profile — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Posts From An Employee’s Termination Meeting? Plan for It — from Dan Schwartz’s Connecticut Employment Law Blog
• Can liking a Facebook status protect an employee from termination? — from Employment Law Bits
• Social Media Madness in the Modern Workplace — from i-Sight Investigation Software Blog
• The Cost of Social Media Distractions in the Workplace — from Minnesota Labor & Employment Law Blog
• Personal vs. Professional on the Job: Where Do We Draw the Line? — from TLNT
• Ten Apps Topping Enterprise Blacklists — from Social Media Strategies Summit Blog
• Workplace “Bring Your Own Device” Policies Save Money Now, But May Risk Future Litigation — from ABA Journal Daily News
• BYOD Party! — from The Personnel Files

HR & Employee Relations

• Why Women Still Can’t Have It All — from The Atlantic
• New Yahoo CEO Is Six Months Pregnant [Insert Gasp] — from Fistful of Talent
• Doesn’t Marissa Mayer have a Non-Compete??? — from Trade Secrets & Non-Compete Blog
• Why companies must stop office bullying — from Evil HR Lady, Suzanne Lucas
• Lifeguard fired for saving a drowning swimmer? Company policy gone bad… — from Warren & Associates Blog

Wage & Hour

• Unpaid Internships May Prove to be Meal Ticket After All… — from Wage & Hour Defense Blog
• Hearst Must Face Class Action by Interns — from Joe’s HR and Benefits Blog
• Using “Rolling” Method to Calculate FMLA Leave Almost Always the Best Choice for Employers — from Jeff Nowak’s FMLA Insights
• To minimize FMLA lawsuits, hire slow and fire fast (before the FMLA request) — from Eric Meyer’s The Employer Handbook Blog
• Visit to doctor for prescription refill is not “treatment” for purposes of FMLA — from Employment Law Matters

Labor Relations

• Reinventing Unions — from Workplace Prof Blog
• The NLRB Continues to Push the Envelope — from Labor & Employment Law Perspectives
• Top Six Illegal Policies In Your Employee Handbook — from Donna Ballman’s Screw You Guys, I’m Going Home

820,000 reasons to have a social media policy

Yesterday, I read an article entitled, Companies Should Think Twice Before Creating Social Media Policy, which argued that “companies who scrutinize their employees’ personal accounts and social media activity may be doing more harm than good.” Yet, companies that ignore employees’ social media activities squarely put themselves at risk.

For example, consider Espinoza v. County of Orange (Calif. Ct. App. 2/9/12). The plaintiff, Ralph Espinoza, a deputy juvenile corrections officer, was born without fingers on his right hand. Co-workers started an anonymous blog, where they referred to Espinoza as the “one handed bandit” and the “rat claw.” The blog became increasingly offensive, culminating in posts such as, “Fuck you one hand bandit! You can shove that claw of yours up your ass!” and “hey rat claw, wrote a poem 4 you: Roses are red; Violets are blue; I fucked your mother in the ass; And she had you!!!!!!!!!”

Espinoza learned of the blog from a sympathetic coworker. Espinoza complained to management, who did little other than asking employees to put the blog to rest. Indeed, the blog continued unabated for eight weeks while management investigated.

A jury awarded Espinoza $820,000 for the harassment.

The court of appeals upheld the verdict, concluding that an employer can be liable for off-duty harassment conducted by employees:

Defendant seems to be taking the position all of the complained of conduct occurred outside the workplace and summarily claims there was no evidence “a current employee” posted any of the comments…. But even on the merits the argument fails….

Employees accessed the blog on workplace computers as revealed by defendant’s own investigation. The postings referred both directly and indirectly to plaintiff, who was specifically named in at least some of them, and the postings discussed work-related issues. It was reasonable for the jury to infer the derogatory blogs were made by coworkers.

There are many risks to employers from the un-monitored use of social media by employees. Harassment, such as that seen in the Espinoza case is just the tip of the iceberg. Employers also need to worry about retaliation, defamation, and breaches of confidentiality, not to mention harm to the corporate reputation. For these reasons, employers need social media policies to establish the rules of road for employees, who do not understand that they can be held responsible for their off-duty, online activities.

[Hat tip: Technology for HR Blog]

Disability services provider sued for, what else, disability discrimination

I’m four years older than my brother. For this reason, growing up I would sometimes get punished for things for which my brother was let off the hook. The reasoning? You should know better. And, I’m sad to say that now that I have two kids of my own, I have found myself repeating this refrain to my older child. The sins of the father, I guess.

Apparently, “you should know better” carries over to the world of employment law. The EEOC has filed a disability discrimination lawsuit against Pace Solano, a California disability services provider. According to the EEOC:

After interviewing for a position to teach developmentally disabled adults … Katrina Holly was immediately offered a job and asked to take a pre-employment physical exam. Holly successfully completed all of the tests and disclosed that she had partial paralysis in one hand to the examiner, so that he would have her complete medical information. Despite written verification from its own doctor that Holly was cleared to do the job, Pace Solano withdrew its job offer due to her hand. When she asked the company to reconsider, the response was, “Your injury makes you a liability; you don’t want to get hurt any more than you already are, do you?”

I agree wholeheartedly with these words from EEOC District Director Michael Baldonado: “While we admire the work that Pace Solano performs for the community, there is simply no excuse for rejecting an applicant because of a disability which in no way impacts her performance.” A lawsuit is simply a set of unproven allegations. If, however, there is any whiff of truth in this lawsuit, Pace Solano should settle this case and train its people so that this public relations nightmare is not repeated.

The “cat’s paw” strikes back

In Staub v. Proctor Hosp., the Supreme Court passed judgment on the “cat’s paw” theory of liability in discrimination cases—an employer’s liability for the discriminatory animus of an employee who played no role in the decision, but nevertheless exerted some degree of influence over the ultimate decision maker. The Staub Court concluded that an employer can be liable for the discriminatory animus of a non-decision making supervisor who intends to cause, and does proximately cause, an adverse employment action.

In Chattman v. Toho Tenax Am. (6th Cir. 7/13/12) [pdf], the 6th Circuit applied Staub to reverse summary judgment in a race discrimination case. Chattman alleged that his employer’s HR director, Tullock, who recommended his termination for horseplay and fabricated that other supervisors supported the decision, was racially biased.

In support of this allegation of race-based animus, Chattman pointed to three separate incidents:

1. Tullock told a “joke” that O.J. Simpson was innocent and that Nicole Brown was killed by their son because O.J. Simpson responded to a question from his son by answering “go axe your mother.”
2. Tullock responded to another employee’s complaint that her son had gotten into trouble at school for fighting by saying “you know what my grandmother always says about boys scuffling? That’s how the nigger graveyard got full.”
3. Tullock commented about then-Presidential candidate Barack Obama by saying “well you better look close at Obama’s running mate because Americans won’t allow a nigger president.”

Even though Tullock was not the decision maker, the court concluded that a jury question existed under the cat’s paw theory:

Chattman has shown that a genuine issue of material fact exists regarding whether Tullock intended that Chattman be disciplined…. There can be little doubt that Tullock desired Chattman’s termination when he made his recommendation and fabricated the agreement of the other supervisors….

Chattman alleges that Tullock knew that white employees engaged in horseplay but never reported any of those incidents to upper management, instead reporting the only incident on record of a black employee engaging in horseplay.

Tullock was the Human Resources manager, and he actively inserted himself in the decisionmaking process. He both misinformed and selectively informed … about the incident. A reasonable factfinder could find Tullock’s actions were a proximate cause of the adverse decisions.

When the Supreme Court decided Staub last year, I cautioned that it upped the ante for employers in discrimination cases:

The Court’s holding hinges on ideals such as “intent” and “proximate cause,” which are almost always fact-based inquiries. Because it is very difficult for an employer to win summary judgment on these issues, the Court has turned nearly every “cat’s paw” case into a jury case—an expensive proposition for employers.

Chattman does nothing to dissuade me of my earlier opinion.

What is the practical takeaway for employers? You better know who you have managing and supervising your employees. Companies do not make personnel decisions in a vacuum. Executives often rely on the front-line managers and supervisors for advice on who and when to discipline or fire. Yet, under Staub, businesses are on the hook for the discriminatory animus of these managers and supervisors, even if they have nothing to do with the ultimate decision. You never want a bigot managing your employees. The cat’s paw, however, provides employers added incentive to purge them from your managerial ranks.

Despite what some think, employers also do not set out to cheat and steal

Earlier this year, I engaged in a debate with plaintiff’s attorney (and author of the excellent employee-side blog, Screw You Guys, I’m Going Home) Donna Ballman over whether discrimination lawsuits are sins of commission or omission. I argued that most employers are well-intentioned, but sometimes act out of inexperience with the complexities of myriad employment laws. Donna argued that many employers act out of malice and deserve to be on the receiving end of discrimination lawsuits.

Last week, writing at Aol Jobs, Donna turned her attention to wage and hour laws. She listed “10 tricks employers use to cheat workers out of overtime.” Donna’s premise, however, is faulty. Managers and executives are not spending their days in locked, smoke-filled conference rooms scheming how to cheat extra hours and steal overtime pay from their employees. Paychecks and timesheets are neither a ploy nor a tactic. Instead, most employers are well-intentioned but ignorant. They are ignorant of the myriad, twisted rules and regulations that govern why, when, to whom, and how much overtime is to be paid.

It’s no secret that I believe the Fair Labor Standards Act is woefully outdated and needs a modernized, top-to-bottom rewrite. As I’ve written before:

Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

Reforming the system into a manageable and understandable set of rules is the best means to ensure that workers are paid a full wage for all hours worked. The system, as it is currently set up, dooms even the most well-meaning employer to failure.

WIRTW #233 (the “Duck Soup” edition)

Yesterday, my friend Dan Schwartz (an A+ employment law blogger) published his (Not So) Definitive Top 10 List of Employment Lawyers To Follow Online (in response to another list published by the HR Examiner). Needless to say, I want to thank Dan for featuring me so prominently on his list. Thanks also to Molly DiBianca (another A+ employment law blogger) and Heather Bussing (writing at HR Examiner), who both had some very kind words to say about yours truly on their blogs in the last 24 hours.

If I was acting as curator of a list such as Dan’s, the only change I’d make is to swap Dan’s name for mine. You cannot go wrong reading the content of anyone he lists, and I’m proud to have all as colleagues and friends. If you are not following each of the employment lawyers recommended by Dan, you are missing out.

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

Discrimination

• EEOC settles complaint over heavy equipment operator with epilepsy — from Walter Olson’s Overlawyered
• Ignoring complaints about air conditioning could subject a business to a discrimination claim — from Employment Law Bits
• EEOC Sends Confusing Signal to Employers — from Hiring & Firing
• It’s tough to prove age bias after getting caught sleeping on the job — from Eric Meyer’s The Employer Handbook Blog
• Huh? EEOC’s now searching for cases of ‘beauty bias’? — from HR Morning

Social Media & Workplace Technology

• BYOD policies jacking up companies’ IT costs — from Boy Genius Report
• Know when to leverage BYOD and when to forget it — from Consumerization Blog
• Cool Things: Deron Williams Signing His New Contract on an iPad — from iPad Insight
• 6 Personal Secrets Your Facebook Profile Isn’t Keeping — from Mashable
• PA Judge Provides Social Media Discovery Rundown — from Phil Miles’s Lawffice Space
• Reading a non-friend’s comment on Facebook wall was not a privacy invasion — from Internet Cases
• Should HR Have Facebook Friends at Work — from hr bartender
• Is Social Media the NEW Smoke Break? — from The Buzz on HR
• Did Glassdoor’s Integration With Facebook Make Your Coworkers’ “Anonymous” Salaries Less Anonymous? — from Kashmir Hill’s The Not-So Private Parts

HR & Employee Relations

• Is Your Boss a Bert or an Ernie? — from Molly DiBianca’s Delaware Employment Law Blog
• Chicken and stitches — from Charlie Plumb’s EmployerLINC
• Why You Should Send Out Rejection Letters — from Above the Law
• HR Lessons from Higgs Boson — from Stephanie Thomas’s The Proactive Employer Blog
• Are flexible schedules a blessing or a curse? — from Evil HR Lady, Suzanne Lucas
• Pros and Cons of Suing the Ex-Employee’s New Employer — from Delaware Non-Compete Law Blog
• Penn State Adopts New Policy on Employee Background Checks — from Nick Fishman’s employeescreenIQ Blog
• How to Conduct Fair and Unbiased Investigation Interviews — from Dawn Lomer’s i-Sight Investigation Software Blog

Wage & Hour

• Supervisor’s Comments After Employee Seeks Leave for Hysterectomy Creates Viable FMLA Claims — from Jeff Nowak’s FMLA Insights
• Be careful what you ask for: retaliatory counterclaims under the FMLA — from John Holmquist’s Michigan Employment Law Connection
• How to Reduce the Salary of Exempt Level Employees — from Mike Haberman at Blogging4Jobs
• Courts Split over FLSA Damages for Emotional Distress — from Smart HR Manager
• Hiring Kids — from Texas Employer Handbook

Labor Relations

• Is It Time We Finally Part Ways With the National Labor Relations Act? — from TLNT
• Independence Day Incrementalism: NLRB (Again) Expands On Precedent By Ruling Employer Off-Duty Access Rule Unlawful — from Labor Relations Update
• NLRB Finds Union Waiver in Two Recent Decisions, Including the Closely-Watched Hospital Flu Shot Case — from Healthcare Employment Counsel

When defending employment cases, chasing attorneys’ fees is a snipe hunt

My summer reading list includes Joel Stein’s Man Made: A Stupid Quest for Masculinity. The book recounts the self-proclaimed effete Stein’s journey to become more masculine in the wake of the birth of his son. In one chapter, Stein spends a weekend with a boy scout troop to learn how to camp. The troop’s hazing includes sending Stein on a snipe hunt. For the uninitiated, a snipe hunt is a practical joke played on inexperienced campers, who are sent to hunt an imaginary bird or animal (the snipe).

Believe it or not, snipe hunts have something to do with defending discrimination cases. Often, I hear this outrage from clients: “I can’t believe we’re being sued for this. I want to counter-sue to collect our attorneys’ fees!” Yes, there are statutes and rules in place that permit a defendant, in certain and extreme circumstances, to collect their attorneys’ fees from the plaintiff. But, there are few cases that will meet this high threshold for recovery. In reality, the likelihood of a judge ordering that a plaintiff-employee pay the defendant-employer’s attorneys’ fees under one of these fee-shifting mechanisms is on par with winning the lottery.

If you want to take any solace from this loser-doesn’t-pay system, consider these words, published yesterday by the 6th Circuit Court of Appeals, in Gibson v. Solideal USA, Inc. [pdf]:

As an initial general proposition, we are not entirely unsympathetic to Solideal’s position. Statutes designed to empower employees in the vindication of their rights may, at times, be used as bases on which a plaintiff asserts claims that are later determined to be without merit. Undeniably, large employers may be forced to incur significant litigation expenses in defending against such claims. However, if this Court were to follow the course now advocated by Solideal, it would effectively hold that a plaintiff who elects to forgo formal discovery and whose claims are unable to withstand summary judgment is responsible for paying all fees and costs the defendant incurred in connection with the litigation. This is a bridge too far.

Litigation is time consuming and expensive. Some cases (such as the one discussed yesterday by Dan Schwartz, at his Connecticut Employment Law Blog) can go on for a decade. We all have principles. We don’t like to pay money to an undeserving plaintiff when we know that we are right. And, when we prove that we are right, we think the plaintiff should pay us for our grief and aggravation. The system, however, is not set up to reward even the most deserving of employers in this way. The sooner employers realize that chasing reimbursement of their attorneys’ fees is a litigation snipe hunt, the sooner they can focus their efforts on the task at hand, concluding the case as quickly and cost-effectively as possible.

The season of the witch? The ADA and seasonal affective disorder

One thing we Clevelanders are really good at is complaining about the weather. For much of last week we approached 100 degrees, and we complained it was too hot. Yet, if it was a temperate 70, we’d complain that it’s too cool for July. And don’t even get me started about winter—too cold, too much snow, when is it going to get warm. Well, it’s been plenty warm, and the complaints keep on flowing.

Did you know that there exists a genuine psychiatric condition based on people’s weather-related moods? It’s called seasonal affective disorder, a mood disorder in which people who have normal mental health throughout most of the year experience depressive symptoms as the seasons change.

Like most psychiatric conditions, seasonal affective disorder has made its way into the workplace. In Ekstrand v. School District of Somerset (7th Cir. 6/26/12), the court upheld a jury verdict on a teacher’s claim under the ADA that her employer failed to accommodate her seasonal affective disorder by refusing to transfer her to a classroom with natural light.

If an employee asks for an office with a view, do not necessarily write him or her off as a complaining, high-maintenance pain-in-the-you-know-what. If, like Ranae Ekstrand, an employee presents a physician’s note documenting a condition, take it seriously by seriously considering whether it presents that much of an imposition to find the employee some natural light during the work day. Some consideration and a small reasonable accommodation might save you a half-million dollar judgment.

The EEOC and racial harassment: calling a spade a s---e

The EEOC has published a website detailing 42 racial harassment cases it has litigated over the past three years. The purpose of the website, I think, is to bring awareness to the agency’s efforts to combat this insidious form of discrimination. Sexual harassment cases often get the headlines, but racial harassment is just as damaging, if not more so, to its victims. By raising awareness of the fact that racial harassment is just as illegal as its more well-known cousin, the EEOC can increase the number of charges filed, helping to bring an end to this awful antebellum remnant.

The EEOC’s micro-site discusses racist workplace practices such as nooses, racially offensive comments such as “coon,” “gorilla,” and “porch monkey,” and jokes, cartoons and images that denigrate African-Americans.

What I find curious, though, is that while the agency rightfully has no problem recounting any of these allegations, it apparently has a huge problem republishing the word “nigger.” While several of the reported cases allege the use of that word, the word itself does not appear anywhere in the EEOC’s microsite. Instead, the agency uses shorthand such as “n----r” or “N-word.” Of course, we all know what these abbreviations mean. When reading, no one says “n-hyphen-hyphen-hyphen-hyphen-r” in their heads; you repeat the word, unabbreviated, in all of its ugliness.

Employment law can be dirty, and no cases are dirtier than harassment cases. Sexual harassment cases can involve words such as “bitch” and “cunt.” Sexual orientation harassment cases can involve words such as “fag.” And, racial harassment cases can involve words like “nigger.” Repeating the words in the context of the litigation neither facilitates nor perpetrates their hatred. In fact, the converse is true. Exposing the words for what they are is the most effective means to eliminate them from our workplaces. No problem was ever solved by sweeping it under the rug, and the EEOC’s politically-correct blinders are not helping rid America’s workplaces of this hateful word.

Of new dogs and new employees: communicating value is key

Last Thursday, my family and I drove to Battle Creek, Michigan, to pick up our new puppy. I cannot give the breeder (Jon Peck, Midnight Run Vizslas) higher marks. He spent two hours with us explaining the ins and outs of what we could expect with our new dog. He provided pointers on the peculiarities of the breed, and what he had observed with our particular pup over the eight weeks since she had been born. He even cleaned her ears and bathed her before we took her home. I don't know what your experiences have been when acquiring a new dog, but, based on mine and my wife's, this was above and beyond. Most importantly, it made us feel valued—that Jon truly and deeply cares not only about his dogs, but also about the homes to which they are going and the positive experiences of new owners. We are making a substantial investment of time in our new dog, and the time spent with us before we took her home shows that out commitment is valued.

This lesson translates well to the workplace. Each employee you hire is an investment. Yet, what is the first day of work like for many employees? A quiet room with a stack of forms to sign, maybe a cursory explanation of the employee handbook, and a tour of the facility? What does this half-assed stab at an orientation say about value? Does your new hire feel like a valued part of a team, or like a fungible and replaceable cog? An employee's first day of work—the orientation to your workplace and culture—should be the first step in communicating to that employee the investment you are making (i.e., that they are valued). It should not be viewed as an administrative burden to be overcome before the employee can start producing.

We would not love our dog any less if our experience was a simple exchange of a check for a pup. Yet, the time spent with us reinforces that we made a great choice for our family. The same should hold true for your relationship with your employees. Teach them their import from day one by making orientation a meaningful, and memorable, experience.

WIRTW #232 (the “welcome to the family” edition)

Everyone say hello to Loula Mae, our new family member (a vizsla, in case you’re curious).

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

Discrimination

• 5 reasonable accommodations an employer never dreamed it would have to make — from Robin Shea’s Employment and Labor Insider
• Class Now Trumps Race as the Great Divide in America — from The Atlantic
• EEOC initiates own investigation into looks-based discrimination — from Warren & Associates Blog
• Court Curbs Long Investigatory Arm of the EEOC - Twice — from Workplace Class Action Litigation
• One federal appellate court outlines parameters for “hostile work environment” claim — from Employment Law Matters
• Domino’s may be liable for sexual harassment of franchisee’s employees — from Judy Greenwald at Business Insurance

Social Media & Workplace Technology

• Workplace Email: The Devil Made Me Do It — from Molly DiBianca’s Delaware Employment Law Blog
• Are You Sharing Too Much Online? — from Social Media Today
• Employment Litigation in the Digital Age — from Technology for HR
• Will using Dropbox put your CEO in jail? — from gigaom

HR & Employee Relations

• Why my child will be your child’s boss — from Suzanne Lucas (the Evil HR Lady), writing at CBS Money Watch
• Why Nipple Tape Doesn’t Cure Workplace Conflict — from Blogging4Jobs
• Workplace Trends: The Talking Urinal Cake — from Workplace Diva
• Employee Handbooks – Are They Really Necessary? — from Employment Essentials

Wages, Hours, & Benefits

• Supreme Court of Pennsylvania grants review of $187-million class action judgment against Wal-Mart — from How Appealing
• Is Time Spent Filling Your Prescription at Walgreens Covered by FMLA? — from Jeff Nowak’s FMLA Insights
• DOL Issues Employee Guide to the Family and Medical Leave Act — from Hiring & Firing
• Why Did Roberts Reach the Commerce Clause on Obamacare? — from Phil Miles’s Lawffice Space

Labor Relations

• Directing Employees To Hand Out Leaflets A Violation, NLRB Rules — from Labor Relations Update
• Is Your At-Will Disclaimer a Ticking Time-Bomb? — from Labor Relations Institute
• How to Save Unions by Making Them Weaker — from Forbes
• NLRB Continues To Crack Down On Employer Social Media Policies and Continues to Leave Doubt On What Provisions Designed To Protect Trade Secrets and Confidential Information Will Withstand Its Scrutiny — from Trading Secrets

Associational retaliation is not the FMLA’s peanut butter cup

In Thompson v. North Am. Stainless, the Supreme Court held that Title VII prohibits associational retaliation; an employer cannot retaliate against an employee by taking an adverse action against that employee’s close family member. The FMLA permits an employee to take up to 12 weeks of annual leave for the serious health condition of a close family member (spouse, child, or parent). Putting these two ideas together, one would assume that the FMLA protects against associational retaliation. The FMLA and Title VII, however, do not combine like chocolate and peanut butter to create an associational retaliation FMLA claim.

In Gilbert v. St. Rita’s Professional Services, LLC (N.D. Ohio 6/20/12), the Northern District of Ohio refused to recognize a claim for associational retaliation under the FMLA. Gilbert involved three plaintiffs, all of whom worked for St. Rita’s: Amy Gilbert, the mother of Shannon Kirby, who, in turn, was the mother-in-law of Mary Haught. After St. Rita’s fired all three, they sued. Kirby claimed that St. Rita’s retaliated her under the FMLA because her termination coincided with the end of Haught’s FMLA leave.

The court disagreed. It concluded that because the FMLA’s anti-retaliation language is more narrow than Title VII’s language, which the Supreme Court construed in Thompson, the FMLA does not provide for associational retaliation claims:

The Court rested its holding specifically on the broad “person … aggrieved” language of Title VII, language that is notably absent from the FMLA. In contrast to Title VII, the FMLA delineates certain specific classes of individuals who may bring an action — those who have been denied a right protected by the Act (“interference” plaintiffs) and those who opposed an employer’s unlawful action under the Act (“retaliation” plaintiffs)…. [I]t stands to reason that Congress’s intentional omission of Title VII's broad language in the FMLA specifically prohibits Plaintiffs’ interpretative extension of Thompson.

Not all statutes are created equal. Just because an employee has a remedy under one statute does not mean that the same remedy exists under another. When interpreting statutes, words matter, a lot. 

This case also gives me the opportunity to share this astonishingly bad 32-year-old Reese’s Peanut Butter Cup commercial. Enjoy the nostalgia, and ask yourself how an advertisement this hokey sold anything, let alone helped birth a candy institution.

6th Circuits provides much needed guidance on pleading standards

Today’s post is going to be a tad dry, for which I apologize. Its dryness, however, does not belittle the importance of the case I am going to discuss.

To file a lawsuit, the Federal Rules of Civil Procedure merely require a plaintiff to state in his or her complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal the Supreme Court defined what satisfies this requirement. A plaintiff must plead enough facts to raise a right to relief above mere speculation and from which a court can draw a reasonable inference that the defendant is liable for the misconduct alleged. In other words, one must be able to read the complaint and understand the specific misconduct that the plaintiff is alleging to be unlawful.

In discrimination cases, do these pleading standards require a plaintiff to specifically plead the elements of the discrimination claim under McDonnell Douglas, or is it sufficient for a plaintiff merely to allege facts that enable the court to infer discrimination?

In Keys v. Humana, Inc. (7/2/12) [pdf], the 6th Circuit reviewed the district court’s dismissal of a discrimination complaint because it had failed to allege facts that plausibly established a prima facie case under McDonnell Douglas. The 6th Circuit reversed, re-affirming that Twombly and Iqbal do not mandate the rote recitation of McDonnell Douglas’s prima facie elements:

The Amended Complaint contains allegations that are neither speculative nor conclusory; it alleges facts that easily state a plausible claim. The Amended Complaint alleges Humana had a pattern or practice of discrimination against African American managers and professional staff in hiring, compensation, promotion, discipline, and termination. It details several specific events in each of those employment-action categories where Keys alleges she was treated differently than her Caucasian management counterparts; it identifies the key supervisors and other relevant persons by race and either name or company title; and it alleges that Keys and other African Americans received specific adverse employment actions notwithstanding satisfactory employment performances.

If courts are not going to require plaintiffs to use McDonnell Douglas at the pleading stage, and instead focus on whether the complaint pleads a plausible claim of discrimination, is it time that we consider ending the charade that the McDonnell Douglas burden-shifting framework is a useful tool? Why make litigants jump through imaginary hoops at the summary judgment stage, when we can all analyze the ultimate issue (was the adverse action discriminatory) just fine on our own?

Contingency plans

My family and I spent last night with friends at Crocker Park’s Liberty Fest. If you’re not from the Cleveland area, Crocker Park is what marketers call a “Life Style Center.” I call it a really nice outdoor shopping mall. Liberty Fest is Crocker Park’s take on a July 4th celebration, with music, dancing, and stilt walkers. It all culminates with a performance by the Cleveland Pops Orchestra and fireworks. With a 4-year-old and a 6-year-old, we were there for the fireworks.

A line of thunderstorms, though, wreaked havoc on the event’s timing. The fireworks, which were scheduled for 10 pm, did not go off until close to 11. As you could imagine, my kids were not the only ones getting antsy waiting … and waiting … and waiting, as we listened to the Cleveland Pops run through its litany of patriotic songs, led by the emceeing of a local morning radio host who made me remember why I love my Sirius/XM subscription.

As we waited, I got to thinking—why didn’t the event have a contingency plan. Evening thunderstorms are common in Cleveland in the summer. It could not be that difficult to have a back-up itinerary in the event that rain delayed the proceedings. The Pops could have played 5 songs instead of 15. The radio guy could have cut out his not-so-witty banter. And, fireworks could have gone off closer to 10 instead of closer to 11.

The same holds true for your business. I’m sure you have star employees, without whom your business would suffer. Yet, do you know if they are content with their job. Or, do they feel underpaid, under-appreciated, or overworked. Tomorrow, one could walk out the door. Do you have a plan to keep your operations running at peak performance? Or would the departure of even one employee grind your company to a temporary halt.

Employees aren’t indentured to you, and there is nothing you to do to guarantee each works for you until retirement. Yet, let me suggest three simple steps to help you plan for the contingency of a key employee leaving.

1. Feedback: You cannot fix a problem that you don’t know exists. Talk to your employees. Gauge their level of contentment. Make adjustments where necessary to ensure, as best as possible, their continuity.
2. Cross-training: In the event an employee leaves, having others cross-trained to perform their tasks will help you ease the transition until you find the right permanent replacement. It will also help you in the event of unexpected medical and other leaves of absences.
3. Non-competition agreements: Even the most strongly drafted non-competition agreement cannot guarantee your keys employees won’t leave you. But, in the event that they do, these agreements will prevent the compounding of the harm by keeping these employees away from your chief competition.

WIRTW #231 (the “Obama <3 Roberts” edition)

Yesterday was the most anticipated day at the U.S. Supreme Court in quite some time. The Court handed down its opinion in National Federation of Independent Business v. Sebelius, which decided the constitutionality of the Affordable Care Act. And, Obamacare is alive and kicking. Here’s SCOTUSblog’s very tweetable summary of the historic opinion:

The key quote from the majority opinion, written by Chief Justice Roberts:

Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it.

In other words, the “mandate” to buy health insurance isn’t really a mandate at all, because individuals can simply refuse to buy health insurance and pay the resulting tax.

Here’s the entire 59-page opinion “in plain English,” again via SCOTUSblog (which gets huge props for its amazing live coverage):

If have a few spare moments and want to seek your teeth into the opinion, you can download all 187 pages here.

Or, you can read some summaries and commentaries from around the web:

• Health-Care Ruling: A Scorecard — from WSJ.com: Law Blog
• Don’t call it a mandate—it’s a tax — from SCOTUSblog
• What The Health Care Decision Means for Your Small Business — from WSJ.com: Small Business
• Supreme Court Upholds Individual Health Insurance Mandate — from SHRM
• Obamacare Decision: The Perils of Instant Analysis and Related Thoughts — from Michael Fox’s Jottings By An Employer’s Lawyer
• Social media angle on SCOTUS healtcare decision — from Internet Cases
• Ouch! CNN, Fox News Flub Coverage of Supreme Court’s Health Care Ruling — from TVLine

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

Discrimination

• Say what? — from Walter Olson’s Overlawyered
• Is Breastfeeding Bias the EEOC’s Next Battleground? — from Employer Defense Law Blog
• Sticks and Stones Can Break Bones, but the Wrong Words Can Hurt Your Business — from Troutman Sanders HR Law Matters
• Banana-based racial harassment claim goes to trial — from Warren & Associates Blog
• Strippers Have Rights Too — from Donna Ballman’s Screw You Guys, I’m Going Home
• Fired for Reporting Workplace Injury — from The Proactive Employer Blog

Social Media & Workplace Technology

• Social Media in the Workplace: Much Ado about Nothing? — from i-Sight Investigation Software Blog
• Facebook Use At Work Falls, Twitter Is On The Rise — from The Huffington Post
• NBC Stations Keep Tabs On Employee Tweets — from TVNewsCheck
• What Not to Share: Enterprise Social Networking Etiquette — from The Up Mover
• ‘We Know What You’re Doing’ website outs drug users, boss-haters and more on Facebook — from BGR
• Is Your Co-worker Reading E-books On Company Time? — from Workplace Diva
• Employers Can Use Apps to Track Employees — But Is It a Good Idea? — from HR Hero’s Technology for HR Blog
• Pew survey finds that 17 percent of US cellphone users go online mostly on their phones — from Engadget Mobile
• Pinterest Legal Concerns: What is Lawful to Pin? — from Social Media Today

HR & Employee Relations

• Should you tell a job candidate about her body odor? — from Evil HR Lady, Suzanne Lucas
• Policies and User Adoption — from HR Examiner with John Sumser
• Workplace Investigation Pitfall: Failure to Use the Matter as an Opportunity to Improve the Organization and its Employee Relations Practices — from Strategic HR Lawyer
• Employer customer lists: "Whatever you say, dude." — from Eric Meyer’s The Employer Handbook Blog
• Legal Issues and Benefits to Employers for Employing Military Personnel — from Jason Shinn’s Michigan Employment Law Advisor
• Poll: Social Life, Not Social Media, Is Work's Biggest Distraction — from Workforce
• Employers to workers: Shape up, quit smoking — from Eve Tahmincioglu at Life Inc. on Today.com

Wage & Hour

• A work-life balance audit for employers — from Robin Shea’s Employment and Labor Insider
• Supreme Court To Decide Whether Employers Can “Moot” Collective Action — from Wage & Hour Tips
• SCOTUS Grants Cert in ERISA Case — from Phil Miles’s Lawffice Space

Labor Relations

• OMG! DUST NLRB Using Tech 2 Reach PPL re: PCA? UNTCO — from Dan Schwartz’s Connecticut Employment Law Blog
• 6th Circuit Holds Substantial Evidence Supports NLRB’s Conclusion That Charge Nurses Were Not Supervisors — from Wisconsin Employment & Labor Law Blog

Abandoning job because of harassment does not support retaliation claim, says the 6th Circuit

Last week, I discussed the 6th Circuit’s most recent pronouncement on same-sex harassment. I noted that while some would argue the Court’s dismissal of the harassment claim is evidence of the need for law against workplace bullying, in reality the Court’s dismissal of the retaliation claim was the more troubling aspect of the opinion. What did I mean?

Recall that in Wasek v. Arrow Energy Services [pdf], when Harold Wasek complained that his male co-worker, Paul Ottobre, was harassing him, 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.” In response to this supervisor’s advice, Wasek went AWOL from his Pennsylvania job site. When Wasek later pursued the issues with HR, the regional supervisor told him that it’s “the way the oil field is” and that if Wasek couldn’t handle it he “should find another line of work.” Ultimately, Arrow banned Wasek from working in Pennsylvania and reassigned him to a job site in Michigan. He ultimately quit to work for a different employer.

The Court concluded that Wasek going AWOL, and not his complaints about harassment, caused his job-site transfer:

Wasek’s claim fails, however, because he has not demonstrated a causal connection between his protected activity—the complaints—and Arrow Energy’s adverse employment action—the Pennsylvania ban….

Leaving the work site could be protected activity if leaving itself were a “complaint” about sexual harassment. But this would require a fact-intensive inquiry into whether or not leaving the work site was reasonable under the circumstances.

Lately, we've seen more than one example of employers who avoided liability despite encapsulating some pretty poor HR practices. This case provides another textbook case of how not to respond to an employee complaint. Yes, you can hope to avoid liability based on a legal argument that the employee was not engaging in protected activity because the underlying misconduct was not illegal. That hope, however, misses the point. Anyone who has responsibility for responding to harassment complaints should be troubled by a decision that justifies an excuse such as “that’s the way the oil field is,” and suggests that the complaining employee tough it out or find another job. Employers need to take all complaints seriously, not just those that the employer thinks will cause it legal problems down the road.

Did the 6th Circuit just approve a claim for benign discrimination?

In Litton v. Talawanda Sch. Dist. (6th Cir. 6/26/12) [pdf], a demoted and transferred custodian sued his employer for age and race discrimination. At trial, the jury returned the following special verdict:

The jury concluded that Litton did not prove that he had suffered an adverse action, yet proved that he was treated differently because of his race. Under the McDonnell Douglas burden-shifting framework, the lack of an adverse action should dispose of the case. If one cannot show a prima facie case (which includes the suffering of an adverse action), the ultimate issue of discrimination should never be reached.

The 6th Circuit, however, disagreed. It disregarded the jury’s finding on the existence of an adverse action as irrelevant to its subsequent finding on the ultimate issue of whether discrimination occurred:

The jury’s assessment of Litton’s prima facie case did not control its finding on the ultimate question of discrimination…. he district court was not only permitted to disregard the jury’s answer to the adverse employment action question, it was required to do so, and instead to evaluate the strength of the evidence as a whole.

As I read the opinion in Litton, I mapped out in my head a grand critique. Then I read Judge Batchelder’s dissent, and decided I couldn’t say it any better:

The core problem with the majority’s holding is that it treats the question of whether Litton suffered adverse discrimination as distinct from “the ultimate question of discrimination vel non.” The two are one…. Title VII does not ban mere discrimination, but only adverse discrimination…. It is, to me, beyond obvious that Title VII applies only where there has been discrimination against an individual. That requirement is not merely some vestigial prima facie element that fades into the background as the case progresses—it is at the heart of the claim itself….

In sum, “the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” … The majority should not relieve Litton of his burden, and it certainly should not grant him victory in the face of a jury verdict finding that he never proved that he suffered adverse discrimination at all. The whole purpose of Title VII … is preventing harmful discrimination, not the lamentable-but-benign discrimination that the jury found Litton experienced.

Did the 6th Circuit unwittingly create a cause of action for benign discrimination? Or, is this case an anomaly that future courts will distinguish and disregard? Common sense mandates the latter. Right?

Will the Supreme Court (re)define employer liability for harassment by supervisors? Vance v. Ball St. Univ.

An employer’s liability for unlawful harassment depends, in part, on whether the alleged perpetrator of the harassment is a supervisor or a co-worker. Employers are strictly liable for unlawful harassment committed by a supervisor, but only liable for harassment committed by a non-supervisory co-worker if the company was negligent in discovering or remedying the harassment.

In Vance v. Ball St. Univ. (7th Cir. 6/3/11), the court concluded that for the purpose of imposing strict liability for harassment, “supervisor” means “direct supervisor.” That is, if the alleged harasser is a supervisor in title, but lacks the power to directly affect the terms and conditions of the plaintiff’s employment, strict liability cannot attach, and the court must analyze the employer’s liability under a negligence standard.

Yesterday, the U.S. Supreme Court agreed to hear the appeal of this case. The Court will decided the following two-part issue:

Whether the “supervisor” liability rule … (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim.

This case has the potential to be significant for employers. As the plaintiff argued in support of the Supreme Court hearing the case:

These issues are no small matter. During the twelve-month period ending September 30, 2010, 14,543 employment discrimination cases were filed in United States courts—the third-largest category of civil cases…. And in 2010 alone, the EEOC received more than 30,000 harassment charges…. Employers agree that this issue is “an important and recurring issue of federal law.” In the modern workforce, where many acts of discrimination are committed by intermediate-level individuals in a large hierarchical organization such as Ball State University, resolution of this issue will undoubtedly add clarity to a great many employment discrimination disputes.

This case presents an excellent opportunity to settle this important issue.

Indeed, the federal appellate courts are split on this issue. The 1st, 3rd, 6th (which includes Ohio), and 8th agree with the 7th Circuit’s opinion in Vance v. Ball St. Univ., while the 2nd, 4th, and 9th Circuits, in addition to the EEOC, conclude that a supervisor is a supervisor regardless of the degree of oversight or control over the alleged victim of the harassment.

Hopefully, this case will settle this dispute and provide much needed clarity on the scope of an employer’s liability for unlawful harassment. This supposedly business-friendly Court has proven itself to be an ally of employees in recent cases. Will this trend continue? Much more on this case in the coming months, including an attempt to handicap the outcome after oral argument.

[Hat tip: Phil Miles’s Lawffice Space]

Sporadic and isolated comments: “Regarded as” claims under the New ADA vs. the Old ADA

The ADA protects three classes of “disabled” employees:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual;
2. Those with a record of such an impairment; and
3. Those regarded as having such an impairment.

To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental
impairment, and that the impairment was one with a duration of more than six months.

In Gecewicz v. Henry Ford Macomb Hosp. (6th Cir. 6/22/12) [pdf], the employer terminated Janice Gecewicz for accruing too many absence under its attendance policy. In her disability discrimiation lawsuit, Gecewicz, who had undergone eight surgeries during the last 10 years of her employment, claimed that the hospital regarded her as disabled. In support of her claim, she pointed to three statements made by her supervisor, Carol Rogers:

• “You’ve had a lot of surgeries for one person.” (made six years before her termination)
• “[Gastric bypass] is a very risky surgery.” (made five years before her termination)
• “If [you] didn’t have so many surgeries [you] wouldn’t have so much time off and [that you] need to take better care of [yourself].” (made one year before her termination)

The Court concluded that these remote and isolated statements could not support her “regarded as disabled” claim. The Court affirmed the trial court’s dismissal of the ADA claim, stating:

First, none of Rogers’s statements shows that she believed Gecewicz had a physical or mental impairment of a duration longer than six months. Second, … the concern reflected in each of Rogers’s statements—including the third statement … —centers on Gecewicz’s excessive absenteeism, not a perceived disability. Being absent from work is not a disability.

What is the takeaway for businesses? Train your managers and supervisors never to discuss employees’ medical issues. “Regarded as” claims under the ADA are dangerous. Gecewicz was decided under the pre-amendments ADA. Under the ADAAA’s “regarded as” prong, a plaintiff only has to prove the existence of an impairment, and no longer has to prove that the employer regarded the impairment as substantially limiting a major life activity.

Under the ADAAA (under which employers now operate), employers will have hard time demonstrating that statements about an employee’s surgeries are not related to an impairment. It is imperative that businesses drill into managers and supervisors that discussions about employees’ medical issues have no place in the workplace. Businesses cannot rely on the rationale of Gecewicz to bail them out under the ADAAA.

WIRTW #230 (the “2012 tour” edition)

I’m taking my act on the road. I have a slew of speaking engagements lined up between now and the end of the year. Let me know if you’re planning on attending any of these so that we can connect.

• Employees Online: Social Media at Work — Business Management Daily Webinar, July 11, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — Ashtabula Chamber of Commerce, July 26, 2012
• Employee Leave Rights and Employer Obligations — Ohio Chamber of Commerce HR Academy, September 12, 2012
• Employment Law in the Information Age: Best Practices for Employers — 7th Annual National Employment Practices Liability ExecuSummit, October 1, 2012
• Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace — GSMI HR Compliance Conference, October 16, 2012
• Think Before You Click: Strategies for Managing Social Media in the Workplace — COSE Small Business Conference, October 25, 2012

You can now keep track of all of my past and upcoming gigs at the brand new “Speaking Engagements” tab on the toolbar at the top.

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

Discrimination

• REQUIRED READING: One of the Most Public Harassment Lawsuits You'll Ever See… — from The HR Capitalist, Kris Dunn
• Internal Probe Participation Triggers Title VII Protection, Court Holds — from Joe’s HR and Benefits Blog
• A Few Thoughts on “Ageism” in the Workplace — from New Jersey Employment Law Blog
• The EEOC Contends Lactation Is Covered by Title VII — from Hunton Employment & Labor Law Perspectives™
• HELP WANTED: Born-again Christians need only apply — from Eric Meyer’s The Employer Handbook Blog
• Fathers Take Employers to Court for Discrimination — from i-Sight Investigation Software Blog

Social Media & Workplace Technology

• Employers Can Use Apps to Track Employees—But Is It a Good Idea? — from Technology for HR
• Can I Protect My Trade Secrets Via Social Media Policy? — from Trade Secrets & Non-Compete Blog
• Juror Misconduct & Bias - Social Media Investigation — from From the Sidebar
• 20 Awesome Facts About Twitter – 2012 Edition — from Social Media for Law Firms

HR & Employee Relations

• Are You Ready For Take Your Dog To Work Day? — from Workplace Diva
• Chaucer, the Prioress, her Lip, and your Employee Handbook — from A Maryland Employment Lawyer Speaks
• Did you libel your employee in a panic and then find out you were wrong? Never be afraid to say you’re sorry — from Robin Shea’s Employment and Labor Insider
• Summertime is Here: Don’t Be A Victim of Background Check Shrinkage — from Nick Fishman’s employeescreenIQ Blog
• Performance Evaluations: Let’s Talk About It — from Molly DiBianca’s Delaware Employment Law Blog
• Pull Up Your SOX: The New Whistleblowing Claim Grows Up — from Dan Schwartz’s Connecticut Employment Law Blog
• The top 10 harassment excuses … and how to see through them — from Business Management Daily

Wage & Hour

• The DOL at Your Door – What Do You Do Now? — from Mike Haberman’s Omega HR Solutions
• “The new workplace revolution: wage and hour suits” — from Walter Olson’s Overlawyered
• Function Over Form: The Supreme Court’s Realistic View of the FLSA — from Michael Fox’s Jottings By An Employer’s Lawyer
• Do Hours Worked On A Second Job Count Toward Overtime? — from Wage & Hour Insights
• Wage Theft On The Rise — from Overtime Lawyer Blog
• Tenth Circuit dismisses claim by employee who was fired while on FMLA leave — from EmployerLINC
• Family and Medical Leave Act Webinar and Employee Guide — from Laconic Law Blog

Labor Relations

• Does Your Compensation Policy Violate NLRA? — from Stephanie Thomas at Compensation Cafe
• U.S. Unions: Uncivil On Civil Rights — from Forbes
• State Of The Unions: Labor And The Middle Class — from NPR’s All Things Considered