The one question I would ask President Obama during the debates

Four years ago, Dan Schwartz, on his Connecticut Employment Law Blog, answered the following question: What One Question Regarding Labor & Employment Law Would You Ask the Candidates During the Debates?

With this election cycle's debates on the horizon, Dan has put out a challenge for his fellow employment law bloggers to answer the same question this year. Today through Thursday, I'll be providing the one question I would ask each of the two Presidential and two Vice-Presidential candidates. On Friday, I'll recap the best from my blogging brethren.

First up, President Obama:

Four years ago, you campaigned on a promise to help working families. You promised to expand the FMLA to cover smaller employers, and promised that employers would be required to provide paid sick days to all employees. Yet, four years later, your track record on these issues is spotty at best. The only accomplishment to which you can point in the Lilly Ledbetter Fair Pay Act. What can you say to working families to earn their trust that the next four years will be different?

Tomorrow, my question for Mitt Romney.

Firing an employee? Tell them! (don’t Milton the termination)

Office Space is one of the great movies about the modern workplace. One of its key plot lines involves sad sack employee Milton Waddams, who mumbles through the movie about his missing stapler and ever-moving desk. Amazingly, the company had laid off Milton years earlier without anyone telling him. When the company fixed a computer glitch that had accidentally kept him on the payroll, Milton finally cracked and burned down the office.

Lawrence v. Youngstown (9/21/12) [pdf], decided last week by the Ohio Supreme Court, gives employers a reason other than arson-avoidance to tell employees that they’ve been fired.

Ohio’s workers’ compensation retaliation statute (Revised Code 4123.90, for those counting) is an odd-duck. It has a two-part statute of limitations. First, the aggrieved employee must provide the employer “written notice of a claimed violation … within the 90 days immediately following the discharge, demotion, reassignment, or punitive action taken.” If the employee sends that written notice, he or she then has up to 180 days from the adverse action to file suit. The 90-day notice requirement is “mandatory and jurisdictional,” and no employee is permitted to file a workers’ compensation retaliation claim without sending the written notice.

In Lawrence, the Court answered a question of timing — does that 90-day period begin to run on the effective date of the discharge or when the employee receives notice of the discharge?

The facts of Lawrence illustrate the potential problem. On January 7, 2007, Youngstown suspended Lawrence without pay from his position with the city. Two days later, the city converted the suspension to a termination, and mailed, via regular mail a letter notifying him of the termination. Lawrence claimed he did not learn of his discharge until February 19, 2007. On April 17, 2007, Lawrence’s attorney sent the city a letter stating that Lawrence intended to bring a lawsuit claiming unlawful workers’ compensation retaliation. When he filed his lawsuit a few months later, the city sought, and obtained its dismissal on the basis that Lawrence’s letter was untimely based on his termination date.

The Ohio Supreme Court reversed. It held that normally the start of the 90-day period triggers from the actual discharge date. It also created an exception when the employee both did not know of the discharge and could not reasonably have learned of it:

A limited exception to the general rule that the 90-day period for employer notice … runs from the employee’s actual discharge…. The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice … commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.

As the Court reminded us in the Lawrence opinion, “Usually, an employer will make a good-faith effort to communicate the fact of the employee’s discharge to the employee when it occurs…. The employer commonly will use a method like personal notification, hand delivery of notice, or a certified letter.” In other words, if you are going to fire an employee, don’t you owe it to him as a human being to at least tell him?

Testing a New RSS Service. Fingers Crossed, Here it Goes

To my loyal readers,

I'm using this rainy Saturday afternoon in Cleveland to test a new feed service, as it appears that Feedburner, who I've used since this site launched more than five years ago, is shutting down. To hedge against all of you losing me, I'm migrating to a new RSS service. If all goes according to plan, you should see no breaks in your daily updates. Otherwise, it's back to the drawing board for me.

Hopefully you be reading me on Monday as usual.

All the best,
Jon

WIRTW #243 (the “SAHM no more” edition)

Over the years, I’ve used this space to share some things about my family and me. I figure it helps you better understand me as a person, which, in turn, helps you understand what forms my beliefs and positions on the various issues on which I write. I’ve written about my wedding story, the birth of my son, and my daughter’s first day of kindergarten. I’ve posted on my son’s trials and triumphs during his three-week hospital stay. I’ve shared the loss of old friends and the acquisition of new ones. I’ve drawn lessons from some of our family vacations. And I’ve written about my childhood, growing up in Philadelphia, and some of the summer jobs that helped form my early views about the workplace.

Today, I’m sharing something new.

On Monday, my wife re-joins the workforce, after more than 6 years at home. Thank you to my wife. She made a very difficult decision in May 2006 to stay at home, sacrificing her career to give our kids the gift of her time and attention. Our kids and I are forever grateful. Thank you also to companies that are willing to hire stay at home moms re-entering the workforce. The difficulty of the decision to give up one’s career is exacerbated by the uncertainty of whether you’ll be able to jump back in when ready. Companies should be commended for realizing that a parent’s choice to leave the workforce does not undermine that parent’s capability as an employee upon their return.

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

Discrimination

• Hospital To Pay Nearly $1 Million To Settle Workplace Language Lawsuit — from TLNT
• That moment right before the pain begins: an EEOC subpoena — from Eric Meyer’s The Employer Handbook Blog
• Realistically Compare Your Employment Fact Finders — from Litigation PostScript. Persuasion Strategies for Litigators
• It’s Depressing That We Need Legislation To Provide Reasonable Accommodations For Pregnant Workers — from Mommyish (my thoughts on this issue are here)

Social Media & Workplace Technology

• Court Finds Broad Requests for Social Media Content Fail to Uphold Rule 34(b)(1)(A)’s “Reasonable Particularity” Requirement, Denies Motion to Compel (in part) — from Electronic Discovery Law
• Fired for WHAT!? - Saints Fan on Facebook — from Phil Miles’s Lawffice Space
• Delaware Court of Chancery on Workday Distractions — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Unemployment is a Larger Barrier to Employment Than Criminal Record — from Nick Fishman’s employeescreenIQ Blog
• My former employer can't prevent me from working, right? Dissecting the Enforceability of a Noncompete Agreement — from Jason Shinn’s Michigan Employment Law Advisor
• Unfair Competition Basics… Boundless Noncompete Restrictions — from Fair Competition Law

Wage & Hour

• Pay Attention Managers: You have to track time ACTUALLY WORKED! — from Mike Haberman’s Omega HR Solutions
• Red Lobster: We Sea FLSA Differently — from The Proactive Employer Blog
• The Sixth Circuit Gives Employers a “Twofer”: An Employer’s Automatic Pay Deduction Policy Does Not Automatically Violate the FLSA and a Class Plaintiff Must “Commence” Suit — from Employer Law Report

Labor Relations

• National Labor Relations Board Issues First Decision Striking Down Employer's Social Media Policy — from Seth Borden’s Labor Relations Today
• Employer Social-Media Policies in NLRB's Cross-Hairs — from Outten & Golden Employment Law Blog
• The NLRB Takes Its Own Advice — from Social Media Employment Law Blog
• In light of NLRB ethics probe, is Walmart social media policy still ok? — from Robin Shea’s Employment and Labor Insider

Employers are increasingly worried about social media and workplace technology

What policy will cause employers to lose the most sleep in the coming year? According to a recent survey conducted by BLR, social media will be the most formidable challenge for businesses in 2013.

The complete answers to the question of which policy presents the biggest challenge to employers:

• social media: 47.1%
• cell phone use and distracted driving: 21.6%
• attendance and punctuality: 17.4%
• computer and Internet: 15.9%
• FMLA: 15.9%

Perhaps what’s more interesting, however, is that if you look at these issues more broadly, they fall into two main categories: technology and attendance. Amazingly, technology trumps attendance by more than 2.5 to 1 margin. You may not be convinced that workplace technology (which includes social media and mobile devices) is not the key issue currently facing employer. This survey, however, says otherwise.

Do your employees know what “loyalty” means?

In almost all states (Ohio included) all employees owe their employer a “duty of loyalty,” which, in the words of one court, means “a duty to act in the utmost good faith and loyalty toward his [or her] employer.” According to another court, “[A]n … employee is prohibited from acting in a manner inconsistent with his … employment and is bound to exercise the utmost good faith and loyalty in performance of his obligations.” Examples of employee misconduct that courts have found to be in breach of this duty of loyalty include acting in competition against one’s employer, giving away company property, using company funds as one’s own, taking bribes or kickbacks, and reaping secret profits.

A story I read yesterday serves as a good reminder that employees owe a responsibility to those who sign their paychecks not only to avoid breaches of this duty of loyalty, but also to avoid placing themselves in circumstances that could call their loyalty into question. While appearing on a local sports radio station yesterday, Philadelphia Eagles running back LeSean McCoy said the following about the replacement referees working in place of the locked-out regular officials: “One of the refs was talking about his fantasy team, like ‘McCoy, come on, I need you for my fantasy.’”

It is highly doubtful, even laughable, that an NFL referee would change a call to help his fantasy football team. Yet, this official exercised very poor judgment in cracking this joke. Employees must avoid even the appearance of a breach of their loyalty to their employer. Should this official lose his job or suffer some other discipline for this lapse in judgment? Probably not. Should the NFL talk to him and remind him of the importance of these issues? Absolutely.

Do your employees understand this issue? When you conduct training of your employees, you might want to consider tossing a discussion of these concepts into the materials.

No call, no show, no FMLA

Just because an employee makes a request for FMLA leave does not excuse an employee from complying with an employer’s attendance policies. According to section 825.302(d) the FMLA’s regulations:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. An employee also may be required by an employer’s policy to contact a specific individual…. Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

This means that if you have a policy requiring employees to call-in if they are going to be late or absent, you can enforce that policy to the detriment of a non-compliant employee taking FLMA leave.

For example, in Ritenour v. Tenn. Dep’t of Human Servs. (6th Cir. 8/29/12), the employee, who mistakenly believed she had been approved for intermittent FMLA to care for her mentally ill son, did not comply with employer’s job abandonment or absenteeism policies, which required the employee to provide appropriate notice to avoid the accrual of unexcused absences. Because the employer terminated Ritenour because of her violation of the policy, her FMLA claims failed:

Even assuming that Ritenour was entitled to take FMLA leave and that TDHS interfered with Ritenour’s FMLA rights, TDHS has provided a legitimate reason for Ritenour’s dismissal that is not related to her request for FMLA leave—because Ritenour did not call in, in violation of the job abandonment policy….

Ritenour knew that the absenteeism policy required that absent employees call-in their absences in order to give their supervisor appropriate notice to make alternative work assignment arrangements. TDHS’s job abandonment policy applies to all employees who are absent from duty without approval. The enforcement of that policy against Ritenour was not related to Ritenour’s request for FMLA leave because the policy applies to employees who are absent from work without approval for any reason.

While it sometimes seems as if employees hold all the high cards in the FMLA poker game, as Ritenour makes clear, employers are within their rights to enforce neutral attendance policies against employees who fail to follow their rules. Now, go check your policies to make sure they contain these types of notice and call-in rules.

NLRB continues to attack facially neutral employment policies

The NLRB continues its assault on garden-variety employment policies, issuing three decisions over the last 10 days, each of which concluded that facially neutral employment policies violated employees’ rights to engage in protected concerted activity. The cases are Flex Frac Logistics, LLC [pdf], TT&W Farm Products, Inc. [pdf], and Costco Wholesale Corp. [pdf].

To place this issue within a legal context (and for the uninitiated), the National Labor Relations Act grants all private-sector employees (union and non-union) the absolute right to engage in protected concerted activity, which includes, among other things, the right to discuss, between and among themselves, their wages, hours, benefits, and other terms and conditions of their employment. An employer cannot maintain a work rule that reasonably tends to chill employees in the exercise of that right.

The NLRB used this doctrine to invalidate the following neutral work rules:

• A rule prohibiting employees from using the employer’s electronic systems to “defame any individual or damage any person’s reputation.”
• A rule prohibiting employees from going AWOL during their shifts, either by walking off the job, or leaving company premises, without management permission.
• A confidentiality policy which defines “confidential information” to include “personnel information and documents.”

Perhaps most telling is the Board’s explanation, in Costco, of its decision invalidating a rule against defamatory language:

In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications…. [T]he Respondent’s rule does not present accompanying language that would tend to restrict its application. It therefore allows employees to reasonably assume that it pertains to—among other things—certain protected concerted activities, such as communications that are critical of the Respondent’s treatment of its employees.

In her analysis of the Costco decision, Molly DiBianca hit the nail on head insofar as the dangerous course charted by the NLRB:

If there’s one thing I’d give the NLRB, it’s consistency. If a workplace rule attempts to regulate employees’ online activities, it’s a safe bet that the Board is going to be skeptical of it, at the least. Even if the rule prohibits employees from harming their employer, the Board may find it to violate the NLRA. Harm away, employee. Harm away.

Under the guise of “protected concerted activity,” the NLRB is making it next to impossible for employers to maintain any work rules that regulate what employees cannot say or do. If I apply a tortured interpretation to any work rule, I can reach some far-fetched conclusion that it could deter employees from engaging in protected concerted activity. The NLRA only is supposed to concern itself with work rules that reasonably tends to chill employees. Yet, these tortured interpretations go well beyond the realm of what is reasonable.

Employers, I wish I could whisk up a magical elixir to solve this problem. Alas, at least for the time being, we are stuck with the NLRB’s intrusiveness into the world of work rules, and the grave uncertainty that comes along for the ride.

WIRTW #242 (the “on the road again” edition)

On Monday, I’ll be in Dayton, Ohio, at the LexisNexis campus, recording two video CLEs for its corporate legal curriculum:

• It’s Five O’Clock; Do You Know What Your Employees are Saying About You? — discussing my favorite topic, social media in the workplace
• Legal Issues in Labor and Employment: Leaves of Absence — discussing the various laws the require employers to grant leaves of absence to employees (FMLA, ADA, USERRA, and Title VII)

I will share clips with you after Lexis provides them to me. I’m also coming home with a cool video biography that I’ll be adding to the “About Me” section above.

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

Discrimination

• The EEOC Strategic Enforcement Plan Infographic — from Stephanie R. Thomas’s The Proactive Employer Blog
• Wal-Mart Settles EEOC Lawsuit on Refusal to Return Employee to Work Without Full Release — from Employer's Law Blog
• Another Case Involving Associational Discrimination and Employee Caregivers — from Employment Discrimination Report
• Rising Caregiver Responsibilities Fuel Push for Extra Worker Protections — from Dan Cafaro at Smart HR Manager

Social Media & Workplace Technology

• Five Years Later, The Biggest Impact on Employment Law Is… — from Dan Schwartz’s Connecticut Employment Law Blog
• Infographic: The biggest reason employees waste time at work — from Ragan.com
• More than half of all mobile subscribers in the U.S. own a smartphone — from Boy Genius Report
• Help - My employee spends all their time playing Fantasy Football — from Rob Radcliff’s Smooth Transitions
• Do You Know Who is Using Your Email at Work? — from Blogging4Jobs
• Employee privacy: How to avoid invading it — from HR Cafe
• Everything’s amazing, nothing’s perfect: exploring the limits of consumer technology — from The Verge

HR & Employee Relations

• Are Pretty People Better Employees? — from Fistful of Talent
• Civility in the Workplace: Can We Remember the Lessons from 9/11? — from TLNT
• Effort in harassment investigations is IMPORTANT — from Mike Haberman’s Omega HR Solutions
• Your employees’ freedom of speech — from WorkFace
• How to Work with Legal — from HR Examiner
• One word on political discussions at work: Shhh — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Is “casual conversation” of a parent's health enough to trigger FMLA? — from The Employer Handbook Blog
• Intermittent Leave—Handling Nine Tricky Aspects — from HR Daily Advisor
• The Rise of the New Contract Worker — from Harvard Business Review

Labor Relations

• Sticks ‘n Stones May Break Your Bones, But Workers Can Defame You — from Molly DiBianca’s Delaware Employment Law Blog
• Lookout Corner – unions@yourcompany.com? — from HR idiot
• “NLRB Goes Back to the ‘80s To Justify A Union-Notice Rule” — from Walter Olson’s Overlawyered

The 5 little words that will cause your company a huge headache

“Tell me how you’re paid.” The biggest wage and hour case I ever defended started with those five little words. A very disgruntled, and justifiably fired, ex-employee went to see a plaintiff’s employment lawyer about filing a wrongful discharge lawsuit. The lawyer correctly told him that that he had no case over his termination. Then, the lawyer uttered those five words. And, we were off to the races in a multi-million dollar wage and hour derby.

I was reminded of this story by a post I read earlier this week on EmployerLINC, entitled, Trolling for employees to sue their employers. The reality is that while discrimination cases remain the bread-and-butter of the plaintiffs’ bar, every plaintiff-side employment lawyer worth his or her salt is on the lookout for the huge payday of a juicy wage and hour class or collective action. While the Supreme Court has taken away some of their luster, the wage and hour class action remains the holy grail of cases.

I can almost guarantee that if one of your employees sits down with a lawyer to talk about filing a claim against your company, part of that lawyer’s intake will be asking the question, “Tell me how you’re paid.”

My opinion on this issue hasn’t changed since I first gave it almost five ago:

The question is not whether companies need to audit their workforces for wage and hour compliance, but whether they properly prioritize doing so before someone calls them on it. According to the BusinessWeek article: “While violations appear widespread, employees themselves rarely think to make wage and hour claims. Instead, they usually have it suggested to them by lawyers.”

It is immeasurably less expensive to get out in front of a potential problem and audit on the front-end instead of settling a claim on the back-end. The time for companies to get their hands around these confusing issues is now, not when employees or their representatives start asking the difficult questions about how employees are classified and who is paid what.

Criminal background checks remain on the EEOC’s radar

Four months ago, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. That Guidance prohibits employers from implementing broad-based blanket exclusions on any individuals with an arrest or criminal history. Instead, it provides that the consideration of criminal convictions requires a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.

Last week, the EEOC issued its Draft Strategic Plan for Fiscal Years 2012 – 2016, which provides that the identification, investigation, and litigation of systemic discrimination cases—pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area—is a top strategic priority for the agency.

On Monday, these two issues came together. The Nashville Business Journal [hat tip: employeescreenIQ Blog] reported that the EEOC will likely filing a lawsuit against Dollar General Corp., challenging that its criminal background check policy has a “disparate impact” on black job candidates and employees. Apparently, Dollar General Corp.’s policy “excludes from employment individuals with certain criminal convictions for specified periods.” This lawsuit comes on the heels of a $3.13 million settlement paid earlier this year by Pepsi to settle litigation with the EEOC over hiring policies that excluded anyone who had been arrested pending prosecution.

Needless to say, the EEOC continues to take a long, hard look at hiring practices—such as the use of arrest and conviction records—because of their potential adverse impact against African Americans and Hispanics. If you are considering using arrest or conviction records to aid in your hiring decisions, do not do so without a reason connecting the offense to the job, and without the input of employment counsel versed on these issues.

[photo credit: brizzle born and bred via photo pin cc]

Testing employees for legally prescribes medications must be done carefully

A recent settlement announced by the EEOC points out the risks that exist if you include lawfully prescribed medications in your drug testing programs.

According to the EEOC’s lawsuit, Dura Automotive Systems drug-tested all of its Lawrenceburg, Tennessee, plant employees in May 2007 for 12 substances—five that were illegal controlled substances, and seven that were legal medications lawfully prescribed for the individuals taking them. The EEOC alleged that Dura required those employees who tested positive for legally prescribed medications to disclose their underlying medical conditions, made it a condition of employment that the employees cease taking their prescription medications, and either suspended employees until they stopped taking the medications or fired those who were unable to perform their job duties without the benefit of their medications. For these transgressions, Dura will fund a $750,000 settlement.

You might be thinking to yourselves, “I have read lots of medicine bottles that caution against operating motor vehicles or heavy machinery. Why can’t I take steps to guarantee my employees’ safety against these dangers?” The answer is that you can, but only in limited circumstances defined by the ADA.

Asking questions about whether an employee currently is taking, or has taken, any prescription drugs or medications, or monitoring an employee’s taking of such drugs or medications is a “disability related inquiry” under the ADA. Testing for whether an employee currently is taking any prescription drugs or medications is a medical examination under the ADA. Disability-related inquiries and medical examinations made during employment must be job-related and consistent with business necessity. Thus, an employer can only inquire about an employee’s prescription medications under these limited circumstances.

In the words of the EEOC:

May an employer ask all employees what prescription medications they are taking?

Generally, no. Asking all employees about their use of prescription medications is not job-related and consistent with business necessity. In limited circumstances, however, certain employers may be able to demonstrate that it is job-related and consistent with business necessity to require employees in positions affecting public safety to report when they are taking medication that may affect their ability to perform essential functions. Under these limited circumstances, an employer must be able to demonstrate that an employee’s inability or impaired ability to perform essential functions will result in a direct threat.

For example, a police department could require armed officers to report when they are taking medications that may affect their ability to use a firearm or to perform other essential functions of their job. Similarly, an airline could require its pilots to report when they are taking any medications that may impair their ability to fly. A fire department, however, could not require fire department employees who perform only administrative duties to report their use of medications because it is unlikely that it could show that these employees would pose a direct threat as a result of their inability or impaired ability to perform their essential job functions.

In the Dura Automotive case, the employer tested all of its employees for prescription medications, regardless of their job duties. This across-the-board testing runs afoul of the ADA. If you have safety-sensitive positions, in which employees will pose a direct threat by performing their essential job functions while impaired, then you may be able to test those employees for legally-prescribed medications. These issues, however, are highly sensitive, and employers must tread carefully to avoid violating the ADA.

Transfer preferences to vacant positions as an ADA reasonable accommodation continue to baffle courts

A disabled employee comes to you and asks for a transfer to an open and available position as a reasonable accommodation? Do you grant the request? For the time being, there is no clear answer to this difficult question.

The ADA includes “reassignment to a vacant position” as a possible “reasonable accommodation” for disabled employees. Courts have struggled, however, in deciding whether disabled employees are entitled to a transfer preference over more qualified, non-disabled co-workers. Five years ago, employers thought they were going to receive some clarity on this tricky issue, when the Supreme Court agreed to hear Huber v. Wal-Mart Stores. When Huber settled before the Supremes could have their say, the issue remained in limbo. Last week, in EEOC v. United Airlines [pdf], the 7th Circuit issued the latest pronounced by a federal appellate court on this issue, and its holding is diametrically opposed to Huber.

Huber held that an employer can hire the most qualified person for a position, even if means passing over a less qualified, disabled employee who requested a transfer to the vacant position as a reasonable accommodation. United Airlines, however, concluded that the ADA requires employers to provide a preference to the disabled employee, and pass over a more qualified individual in favor of providing the vacant position as a reasonable accommodation. In other words, this issue is more muddled and unsettled than ever, and remains ripe for clarification from the Supreme Court.

Going forward, employers are left with the following two very different options:

• Hire the most qualified person and deny the open position to a less qualified disabled employee.

– or –

• Automatically award an open position to a qualified disabled employee, if even a better qualified applicant is available and despite an policy to hire the best person for the job.

Employers must act cautiously if faced with this thorny issue. The answer, for now, will vary depending on the federal circuit in which your business operates. My advice from nearly five years ago rings as true today as it did then:

When you don’t hire the best person for an open position, it could lead a court to second-guess your judgment and question why a member of a protected class was overlooked in favor of the second/third/fourth/whatever best person. Recognize, however, that this issue is unsettled, and declining to accommodate a disabled employee by transferring that employee to an open position could result in a violation of the ADA.

WIRTW #241 (the “replay” edition)

In case you missed it,and for your listening pleasure—

Here’s yesterday’s appearance on DriveThruHR:

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

And here’s yesterday’s appearance on The Proactive Employer:

Listen to internet radio with TheProactiveEmployer on Blog Talk Radio

P.S. Today is the last day to nominate your favorites legal blogs for the ABA Journal’s Blawg 100. Thanks for your support.

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

Discrimination

• EEOC’s “emerging issues”: LGBT rights, and accommodations for pregnant women — from Robin Shea’s Employment and Labor Insider
• “Family Responsibilities Discrimination” - Is This The Next Worry For Employers? — from Employment Discrimination Report
• Benchslap: Reinstating Sexual Harasser is “Absurd” — from Phil Miles’s Lawffice Space
• Employer Liability in Single-Severe-Incident Harassment Cases — from i-Sight Investigation Software Blog
• Playing the Race Card — from Workplace Prof Blog
• A Look to the Future: Human Augmentation as Reasonable Accommodation — from Mike Haberman’s Omega HR Solutions
• Religious accommodations 101 — from Sindy Warren’s Warren & Associates Blog

Social Media & Workplace Technology

• Plaintiff has to turn over emotional social media content in employment lawsuit — from Internet Cases
• How often do you Google your own name? — from Social Media Today
• What do employers look for when they monitor your Internet usage at work? — from Ask a Manager
• This Is Why You Want Passwords On Your Phone And Computer — from Kashmir Hill’s The Not-So Private Parts
• Why I May Have to Eat My Emoticons — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• Case Study: How Hard Should You Push Diversity? — from Harvard Business Review
• Employee Background Checks and the Fair Credit Reporting Act — from Minnesota Employer
• My coworker is making me sick — from Evil HR Lady, Suzanne Lucas
• Great moments in financial employment regulation — from Walter Olson’s Overlawyered
• Man Fired for 49 Year Old Conviction: Who’s to Blame? — from Nick Fishman’s employeescreenIQ Blog
• Ken and Barbie Bias in the Hiring Process… — from The HR Capitalist, Kris Dunn

Wage & Hour

• Back to School for Kids; Back to Work Limits for Employers for Child Labor — from Dan Schwartz’s Connecticut Employment Law Blog
• Vargas v. GNC: Off-the-Clock Class Certified — from Impact Litigation Journal
• Rotten apples and the FMLA: What to do — from HR Cafe

Labor Relations

• Labor Has a Day, So Why Not Corporations? Retired Employment Lawyer Touts Idea in Op-Ed — from ABA Journal Daily News
• Overbroad At-Will Disclaimers and Confidentiality Requests Are Being Challenged in Non-Unionized Workplaces — from Employment & the Law

Unemployment (or prior lawsuits) as a protected class? Not so fast says the 6th Circuit

Last week, in Berrington v. Wal-Mart, the 6th Circuit considered the issue of whether a company could be liable for refusing to hire someone because he filed an unemployment claim. William Berrington claimed that a Kalamazoo, Michigan, Wal-Mart’s refusal to rehire him after he filed a unemployment claim related to a prior termination wrongfully violated the state’s public policy. The 6th Circuit disagreed. It ignored (more or less) the issue of the public policy at issue, and instead focused on the nature of the employment decision at-issue — a refusal to hire.

Berrington’s appeal presents us with the question of whether Michigan law recognizes a public policy cause of action for an employer’s wrongful refusal to rehire because an individual claimed unemployment benefits…. The common denominator in all the recognized public policy exceptions to at-will employment is the existence of an employment relationship. An employee’s right to be hired or rehired by an employer, on the other hand, has never been recognized as actionable, under common law on public policy grounds…. In fact, neither party has been able to provide a single decision from any jurisdiction enforcing a retaliatory failure to rehire claim in state common law or public policy, absent some other statutory basis.

While this case was decided under Michigan law, it has implications beyond that state. As the opinion points out, there exist no cases from any jurisdiction (Ohio included) recognizing a failure to hire claim under state common law or public policy.

While you might not be presented with the issue of refusing to rehire an ex-employee who filed an unemployment claim, you may have other reasons not to hire someone. For example, you might decide that a potential employee is tainted because he or she filed a lawsuit against a previous employer. If the lawsuit raised issues protected by the employment discrimination statutes, for example, those same statutes’ anti-retaliation provisions likely protect the employee from failure to hire on that basis. What if, however, the prior lawsuit involved something other than protected activity in its own right (e.g., a common law tort such as invasion of privacy, defamation, or intentional infliction of emotional distress)? If a prospective employer locates the old lawsuit on the Internet and refuses to hire someone it perceives as a potential problem down the road, Berrington suggests that the employer might be off the hook for any potential liability stemming from the refusal to hire. If state common law does not recognize a failure to hire claim, as Berrington suggests, then lawsuits against prior employers should be acceptable fodder for hiring decisions (the civil rights statutes notwithstanding).

How long is too long for a medical leave of absence?

Last year, I suggested that the ADA has swallowed the FMLA for employee medical leaves:

The recently amended ADA is expansive enough to cover most medical conditions. If most medical conditions are covered as disabilities, then most employees with medical conditions will likely, at some point during their tenure, need a reasonable accommodation. One accommodation that the EEOC considers presumptively reasonable is an unpaid leave of absence, even for employers too small to be covered by the FMLA…. If the ADA now covers most employees’ medical issues, and the ADA requires an unpaid leave of absence, hasn’t the ADA swallowed the FMLA, at least as employee medical leaves are concerned?

Last week, the 10th Circuit Court of Appeals clarified that while unpaid medical leaves are a possible reasonable accommodation, no employee is entitled to an indefinite leave of absence.

In Robert v. Board of Cty. Comm’rs of Brown Cty. Kan. (8/28/12), the 10th Circuit concluded that an indefinite leave of absence is per se unreasonable. Catherine Robert, who worked as supervisor of released adult offenders, developed sacroiliac joint dysfunction. After a lengthy leave of absence, including 12 weeks under the FMLA, Robert remained unable to perform all of her required duties—including visiting offenders at their homes or in jail, supervising drug and alcohol screenings, and testifying in court. She sued for disability discrimination following her termination.

In upholding the dismissal of her claim under the ADA, the court focused on the indefinite nature of her leave of absence:

Although site visits and other out-of-office work were an essential function of her position, Robert would be nonetheless qualified if she could have performed those duties with a reasonable accommodation…. In light of Robert’s complete inability to perform site visits at the time of her firing, the only potential accommodation would be a temporary reprieve from this essential function. Our precedents recognize that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation…. There are two limits on the bounds of reasonableness for a leave of absence. The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.”

There is no evidence in the record that Robert’s employer had any estimation of the date Robert would resume the fieldwork essential to her position…. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law. For that reason, she was not a qualified individual under the ADA and her claim of discrimination fails.

What does this case mean from a practical standpoint? That an indefinite leave of absence—one from which neither the employee nor his or her doctor can provide a date upon which the employee can return to performing the essential functions of the position—is per se unreasonable under the ADA. On the broader issue—how long of a leave is too long to be reasonable—the court punted. While the court passed on this important issue, it did suggest that six months might be too long, although a hard-cap on a duration of a leave as a reasonable accommodation is a moving target.

If you are granting a leave to an employee as an accommodation, your best defense to a potential ADA claim is to open a dialogue with the employee about a return date, and prepare to be flexible. While an indefinite leave almost always will be unreasonable, what is reasonable will depend on the nature of your business and how the employee’s position fits into your organization. You cannot make this determination without talking to the employee, gathering medical information, and making an informed decision about what works best for your company.

[Hat tip: Eric Meyer’s The Employer Handbook]

Are your policies updated to account for Ohio’s new ban on texting while driving?

The statistics are enough to scare anyone from texting while driving:

• Drivers are 23 times more likely to crash while texting and driving.
• If you only take your eyes off the road for five seconds, at 55 mph, you’ve traveled the length of football field.

As of last week, there is a reason besides safety not to text and drive in Ohio—it’s against the law.

House Bill 99 took effect August 31, and criminalizes texting while driving. It creates two levels of violations—one for adults and one for minors.

• Adult drivers face a $150 fine for texting or reading/sending email. It is a secondary offense, which means that police can only ticket if you are pulled over for another reason.
• Minors are prohibited from using any mobile communication device while operating a motor vehicle. If you are under 18, this means no texting, emailing, talking on the phone, or using a GPS, even while sitting at a traffic light or stuck in traffic. Also, it is a primary offense, carrying mandatory and escalating fines and suspensions.

What does all this mean for employers? If you have employees driving for your business, you should update your policies to account for this new law. Remind employees that texting while driving is not only against the law, but also against company policy. Your insurance carriers, and, believe it or not, your employees and their families, will thank you.

WIRTW #240 (the “see me … hear me” edition)

Every once in a while I like to give you, my readers, an update of where you can catch me live.

Next week, you have two chances to hear me from the comfort of your desk:

• On Thursday, September 6, at 1 pm EDT, I’ll be making my triumphant return to DriveThru HR, the Internet’s most popular daily radio show covering human resources. Listen live at http://www.blogtalkradio.com/drivethruhr, and share your thoughts on twitter using #dthr or @drivethruhr.

• That same afternoon, at 3 pm EDT on September 7, I’ll be making my 7th appearance on The Proactive Employer radio show, hosted by Stephanie Thomas. This appearance, entitled Your Most Challenging and Bizarre HR Questions Answered, will be a little different. Instead of discussing a pre-arranged topic, I, along with Phil Miles, Robin Shea, and Eric Meyer, will be answering questions, live and unrehearsed, from Stephanie’s listeners. It should make for an interesting experience. If you have a weird or bizarre employment law question, or just want to chat, you can:

  • Call on the listener Line: 1-888-553-6673
  • Tweet questions with the hashtag #TPESHOW
  • Login as “guest” to the show’s live chat and ask questions anonymously

If you’d rather see me live and in person, October and November give you four different chances to see me speak on my favorite topic, social media in the workplace.

• On October 1, I’ll be in Uncasville, Connecticut, leading a panel discussion at the 7th Annual National Employment Practices Liability ExecuSummit entitled, Employment Law in the Information Age: Best Practices for Employers 

• On October 16, I’ll be in San Francisco, speaking at the GSMI HR Compliance Conference. I spoke at this same conference last year, and am very excited to make a return appearance. It’s a great conference because it is specifically tailored to to the concerns of strategic level decision-makers, legal staff, and HR pros and leaders. My topic: Think before You Click! Practical & Legal Guidance to Effectively Manage Social Media in the Workplace

• I am also presenting Think Before You Click… at the 7th annual COSE Small Business Convention, on October 25, at the Kalahari Resort & Convention Center in Sandusky, Ohio. COSE’s SBC is the premier small business event in the country. Over two days it offers 48 educational workshops, six national keynote speakers, a business-to-business tradeshow, and hands-on learning labs.

• Finally, I’ll be back on home turf on November 28, leading a panel discussion on workplace social media issues at the 2012 Midwest Social Media Summit.

If you are planning on attending any of these events, please reach out and let me know ahead of time so that we can meet. Or, just stop me and say hello.

Finally, if you are a fan of this blog (or others), you still have a whole week to submit your nomination(s) for the ABA Journal’s Blawg 100. The deadline is September 7, and the process is easy. Thanks for your support.

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

Discrimination

• The mommy track — from The Economist
• An employer’s nightmare: the anonymous harasser — from Robin Shea’s Employment and Labor Insider
• Dear Evil Skippy: Two Men, No Wedding, One Complaint — from Evil Skippy at Work
• Chrysler Liable for “Repulsive Harassment” of Employee — from Maryland Employment Law Developments
• America Runs on … Discrimination? — from The Proactive Employer Blog

Social Media & Workplace Technology

• Spying on Your Employees? Know the Law First — from Dan Schwartz’s Connecticut Employment Law Blog
• Can Law Keep Up with Technology? — from Heather Bussing at HR Examiner
• FINRA Regulatory Notice 12-29: Its Impact on Social Media Use — from Social Media Today

HR & Employee Relations

• Can my employer cut my paid time off — from Evil HR Lady, Suzanne Lucas
• The Trade Secret Litigator’s 7 Deadly Sins of Departing Employees in Trade Secret and Non-Compete Disputes — from Trade Secret Litigator Blog
• Reference Checks: Neutral is the New Negative, and Getting Negative Info is Gold… — from The HR Capitalist, Kris Dunn
• Protecting Our Children: Another Rant About School Employment Background Checks — from Nick Fishman’s employeescreenIQ Blog
• Apple’s Genius training manual shows how company herds and grooms its “iSheep” — from Boy Genius Report

Wage & Hour

• FLSA Questions In Wake Of Hurricane Isaac — from Wage and Hour Laws Blog
• The Importance Of Accurate Time/Hours Records In The Social Media Age — from Social Media Employment Law Blog
• BYOD Workers Are Working An Extra 20 Hours Per Week Unpaid — from Workplace Diva
• Work breaks: a right or a privilege? — from Employment Law Bits
• Can an Online Checklist Really Help Decide Who Is an Exempt Employee? — from TLNT
• FMLA may require you to adjust employee performance standards — from Eric Meyer’s The Employer Handbook Blog
• FMLA “Hours Worked” Includes Prep Time at Home — from Impact Litigation Journal
• Employee’s FMLA Leave Requires an Employer to Adjust Performance Standards — from Jeff Nowak’s FMLA Insights

Labor Relations

• Is the NLRB In Need of a Dictionary? — from Molly DiBianca’s Delaware Employment Law Blog
• An uninvited guest: the NLRB settles in — from John Holmquist’s Michigan Employment Law Connection
• Who’s the Boss? New Book Warns About Public-Sector Unions — from LaborPains.org
• Sixth Circuit Upholds NLRB's Pre-Recognition Framework Agreement Ruling — from Workplace Prof Blog

Until next week…

Are you allowed to use social media at work?

This week, Lifehacker has been running a poll asking this question — are you allowed to use social networks at work? The results so far (from nearly 3,100 votes):

• 58.63% = Yes
• 25.8% = No
• 5.89% = Only at specific times
• 9.68% = Only on personal devices

What’s more interesting to me, though, is the comments posted by Lifehacker’s readers. I’ve chosen three to reprint, each of which illustrates an important point about employers’ attempts to regulate social media in the workplace.

1. My employer blocks everything but linkedin, yet they promote internally how they use and we are to use social media to promote and otherwise discuss (in a good manner of course) the company. It’s kind of ridiculous when you get an internal company wide email saying follow us, like us, etc and when you click on it, you get good ole’ websense saying “Denied.” (comment by SpiffyMcDougal)

Companies cannot promulgate a disconnect between their external social media efforts and their internal social media policies. Openness to the public at-large will cause resentment among your employees if you restrict internal access. It sends a mixed (and wrong) message.

2. I can use FB and other sites all I want on my phone because it's not connected to anything in the office. I'm sure it's not allowed but no one really cares. (comment by Dear Zeus)

Bans on the internal use of social media are mostly worthless. Employees are increasingly technologically savvy, and will figure out work-arounds. Why implement a policy that you cannot monitor or control?

3. As the IT Administrator, it was my call whether or not to block social media. I chose not to since I work with a bunch of responsible adults who put their work ahead of their social life. If they need to take a peek a few times a day, no one cares, and it's never become a problem. (comment by Sergio526)

This commenter absolutely hits the nail on the head. The issue of whether to ban or limit access to social media in the workplace is not a black or white issue. It’s an employee-by-employee issue. I am reasonably certain you don’t have a policy telling employees that they are forbidden from reading the newspaper all day long. Yet, if an employee’s productivity or performance is suffering because they can’t pry themselves away from the New York Times, you deal with the problem with that particular employee. The same holds true for Facebook, Twitter, YouTube, or Amazon. It’s only an issue if an employee makes it an issue. Deal with it as a performance problem for that employee, not as a systemic problem that might not exist across your workforce at large.

Accommodating religions starts at home (a love story)

Nine years ago today I got married. Our wedding was not what you’d call traditional. I’m Jewish and my wife is Catholic, and we wanted our ceremony to blend the best of both traditions. While my wife’s dream wedding included her dad walking her down a church aisle, we were willing to sacrifice if we could not find a priest and a rabbi who would accommodate our wishes. With nervous trepidation, we met with the priest of Colleen’s parish, who, as it turned out, was 100 percent on board with our plan. We next found a rabbi, and all of us worked together to craft the ceremony we wanted: in a church, under a chuppah, with a beautiful blend of both religions and our respective traditions and customs.

There has been a lot of ink spilled lately about employers not accommodating employees’ religions. Whether it’s Disneyland refusing to permit a Muslim employee to wear a hijab, or a Burger King franchise denying the request of a Pentecostal employee to wear a skirt instead of pants, or a New York state university firing an employee because of his “I ♥ Jesus” lanyard, employers seem to have forgotten how to accommodate. People are quick to lay blame at the feet of these companies. Yet, teaching how to accommodate starts at home. If children learn exclusion, how can we expect them to act any differently as adults? If nothing else, I know my kids (being raised Catholic, but with a healthy dose of Jewish in the home) should not make these mistakes as they grow. We won’t let them, and, as they age, I hope they won’t want to.

(Happy Anniversary Colleen. I love you.)