Who is a supervisor under Title VII? (Vance v. Ball St. Univ.)

On Monday, the Supreme Court heard oral argument in one of the key employment cases it will hear this term—Vance v. Ball St. Univ. This case asks whether one can qualify as a supervisor under Title VII if one is given any authority to direct and oversee another’s daily work, or if supervisory status is limited to those who have the power to hire, fire, demote, promote, transfer, or discipline others.

This distinction is an important one. Under Title VII, employers are vicariously liable for actionable harassment committed by supervisors that results in a tangible employment action.

The appellate court in Vance drew a bright line, and concluded that “supervisor” means “direct supervisor,” with the power to directly affect the terms and conditions of the plaintiff’s employment via hiring, firing, demoting, promoting, transferring, or disciplining; the mere authority to direct an employee’s daily activities is not enough.

Yet, in the Supreme Court, not even the employer, who won in the court of appeals, could argue that the 7th Circuit got the standard right. At oral argument, the employer argued that the bright line drawn by the appellate court is too rigid:

[S]omeone who does control virtually all aspects of one’s schedule but yet lacks the authority to hire, fire, or demote, nevertheless still would be qualified….

By way of example, the employer’s counsel referred to the following hypothetical posed by Justice Kagan:

There’s a professor, and the professor has a secretary. And the professor subjects that secretary to living hell, complete hostile work environment on the basis of sex, all right? But the professor has absolutely no authority to fire the secretary. What would the Seventh Circuit say about that situation?

Even though no one argued in support of the bright-line rule articulated by the 7th Circuit, I predict that the 7th Circuit’s rule will carry the day when the Court issues its opinion sometime next year. The Justices were clearly looking for a bright line to guide future cases, and appear to be wary of adopting a middle-of-the-road approach that will only serve to muddle the issue in future cases. If we are lining up Justices to get aboard one line or the other, the 7th Circuit’s stricter approach should garner more votes than the loosey-goosey standard the plaintiff sought.

For any additional background on this case, visit SCOTUSblog. The oral argument transcript is available from the Supreme Court’s website [pdf].

It’s a Blawg 100 Three-Peat

Edward James Olmos once said, “I didn’t get into this business to get awards.” And while that may be true, it certainly is nice to be recognized.

Yesterday afternoon, the ABA Journal announced its annual list of the top 100 legal blogs, which it calls the Blawg 100. I was fortunate enough to be part of this list in 2010 and 2011, and equally fortunate that the ABA Journal recognized me again this year as part of its 6th annual list.

The labor & employment blawgosphere is among the richest, and I am pleased that I am sharing this honor with five fellow bloggers, each of whom I consider a friend.

• Dan Schwartz’s Connecticut Employment Law Blog
• Molly DiBianca’s Delaware Employment Law Blog
• Phil Miles’s Lawffice Space
• Jeff Nowak’s FMLA Insights
• Donna Ballman’s Screw You Guys, I’m Going Home (which wins for the best title among the group, hands down)

(For what it’s worth, this list is short by two. Next year, I hope that Eric Meyer’s The Employer Handbook Blog and Robin Shea’s Employment & Labor Insider join the list.)

Now comes the part where I graciously and unapologetically ask for your help. Between now and December 21, you have the opportunity to vote for your favorite blawg. All you need to do is go to www.abajournal.com/blawg100, register, and vote. You’ll find my blog under the “Labor & Employment” category. Thank you for your support.

Congratulations to all of the winners, and thank you to the ABA Journal for, once again, deeming my little project worthy of your recognition. It is much appreciated.

Tomorrow, I start my march toward a four-peat, with a post on the Supreme Court’s oral argument in Vance v. Ball State Univ., which will (maybe) answer the important question of who qualifies as a supervisor under Title VII.

When is confidential medical information NOT confidential?

The ADA requires that employers treat employee medical information obtained from "medical examinations and inquiries … as a confidential medical record." In EEOC v. Thrivent Financial for Lutherans, the 7th Circuit recently decided the extent to which that confidentiality requirements applies when an employee volunteers medical information to an employer.

Gary Messier worked for Trivent as a business analyst, and during his first four months of employment developed a reputation for letting his employer know when he would be absent from work. When he failed to report to work one day, his supervisor emailed looking for a report and explanation. In response, Messier sent an email detailing his long battle with migraine headaches.

Messier quit one month later, but had trouble finding a new job. Whe three jobs fell through after a reference check, he hired a company to conduct a fake reference check for him. In response, his former supervisor at Trivent said that Messier "has medical conditions where he gets migraines."


Based on that statement, the EEOC brought suit on Messier's behalf for a violation of the ADA's confidentiality requirements.

In affirming the district court's dismissal of the lawsuit, the 7th Circuit examined the plain language of the ADA.

The EEOC argued that the ADA's confidentiality provisions protect all employee medical information revealed through "job-related" inquiries.

The 7th Circuit disagreed:

The subject matter discussed in the body of section (d) confirms that the word "inquiries" does not refer to all generalized inquiries, but instead refers only to medical inquiries. The entire section is devoted to a discussion of a disabled employee's "medical record," "medical condition or history," "medical files," and medical "treatment."

Instead, the Court concluded that the ADA's confidentiality requirements only apply to medical information provided by an employee in response to a medical examination (not an issue in this case) or a medical inquiry.

Because Trivent had not made a medical inquiry before Messier sent his email detailing his migraines, any disclosure it made did not violate the ADA.

[P]revious courts have required—at minimum—that the employer already knew something was wrong with the employee before initiating the interaction in order for that interaction to constitute a [protected] inquiry. There is no evidence in the record suggesting that Thrivent … should have inferred that Messier's absence on November 1, 2006 was due to a medical condition. There is no evidence in the record that Messier had been sickly during his first four months of employment. There is no evidence that Messier had experienced a headache at work during his first four months. For all Thrivent … knew, Messier's absence was just as likely due to a non-medical condition as it was due to a medical condition. Indeed, as Thrivent pointed out to the district court, "Messier could have had transportation problems, marital problems, weather-related problems, housing problems, criminal problems, motivational problems, a car or home accident, or perhaps he simply decided to quit his job…."

Thus, Thrivent was not required to treat the medical information that Messier sent in response to the email as a confidential medical record. Accordingly, Thrivent did not violate (and could not have violated) the ADA by revealing Messier's migraine condition to anyone, including to prospective employers.

While this case is a great holding for employers, businesses should still tread carefully when dealing with employee medical information. This area of the law remains risky waters in which companies swim.

Another reason not to ban social media on company time (hint … it’s the NLRB)

I’ve written before about the practical problems employers face when trying to ban employees from accessing social media at work.

Last week, an NLRB administrative law judge provided us another reason for employers not to implement workplace bans on social media—such a ban might be an unlawful infringement on employees’ rights to engage in protected concerted activity.

In Dish Network [pdf], the ALJ considered the following policy in the company’s employee handbook:

Unless you are specifically authorized to do so, you may not … Participate in these activities [Social Media—blogs, forums, wikis, social and professional networks] with DISH Network resources and/or on Company time.

The ALJ struck down the policy as an unreasonable restraint on the right of employees to engage in protected concerted activity:

The Social Media policy is unlawful…. [T]he policy banned employees from engaging in negative electronic discussion during “Company time.” The Board has found that equivalent rules, which ban union activities during “Company time” are presumptively invalid because they fail to clearly convey that solicitation can still occur during breaks and other non-working hours at the enterprise.I’ve written before about the logistical problems of workplace social media bans.

If you are going to consider banning social media in your workplace, the practical reasons far outweigh the legal issues (Dish Network notwithstanding). I call it the iPhone-ification of the American workforce. If most of your employees can take their smartphones out of their pockets to circumvent your policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce?

Instead of legislating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the Internet, then address the performance problem. A slacking employee will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off.

When dealing with employment concerns, there are legal issues and there are business issues. Decisions cannot be made without considering both, and sometimes one must trump the other. In this case the legal issue and the business issue happen to jive. The legal issue, however, remains in flux, as the NLRB continues to grapple with the role of technology in the 21st century workplace. The business issue, though, dictates the employers think long and hard about implementing a policy they will struggle to enforce.

---

The blog is taking the rest of the week off. I’ll be back on Monday with fresh content. In the meantime, enjoy your holiday, and take a moment to say thank you to that and those for which you are grateful.

If you put up with bullies in your workplace, stop (before someone else makes you)

I came across an article on TLNT last week entitled, The 7 Ways Organizations Justify Bullying in The Workplace. According to the article, these are the seven most popular excuses companies make for workplace bullies:

• He just goes off from time to time; he means no harm.
• OK, I will ask him to apologize again.
• Ron’s skills are so valuable we can’t afford to lose him.
• I just had “another” conversation with Ron. He will be OK.
• It’s easier to keep him than to find a replacement.
• That’s just how Ron is. He is just passionate.
• He doesn’t mean any harm; he’s just under a lot of stress.

If you find yourself making these excuses for anyone in your organization, it’s to reevaluate the type of workplace you want to be.

And, it’s not because bullying is illegal. In fact, in many cases, it’s not. Unless a bully is harassing someone because of a protected class (race, sex, age, disability, religion, national origin…) bullying is probably lawful. As the U.S. Supreme Court has famously said, our workplace discrimination laws are not meant to be a “general civility code” for the American workforce. In layman’s terms, our laws allow people to be jerks to each other at work.

The question, however, is not whether the law protects the bullied, but instead what you should be doing about it in your workplace. If you want state legislatures to pass workplace bullying legislation, then continue to ignore the issue in your business. If you want to be sued by every employee who is looked at funny or at whose direction a harsh word is uttered, then continue to tolerate abusive employees. If you want to lose well-performing, productive workers, then allow them to be pushed out the door by intolerable co-workers.

The reality is that if companies do not take this issue seriously, state legislators will. What can you do now to protect your workplace from a future of anti-bullying legislation?

1. Review current policies. Most handbooks already have policies and procedures in place that deal with workplace bullying. Do you have an open-door policy? A complaint policy? A standards of conduct policy? If so, your employees already know that they can go to management with any concerns—bullying included—and seek intervention.

2. Take complaints seriously. These policies are only as good as how they are enforced. Whether or not illegal, reports of bullying should be treated like any other harassment complaint. You should promptly conduct an investigation and implement appropriate corrective action to remedy the bullying.

In other words, take seriously bullying in your workplace. If you don’t state legislatures will, and you won’t like the results.

WIRTW #250 (the “Tickle Me Petraeus” edition)

What does Elmo have in common with a former four-star general? They both need refresher courses on the proper use of email.

• Former CIA chief David Petraeus resigned his post after an email chain revealed an extra-marital affair. Petraeus and his paramour are claimed to have set up Gmail accounts to communicate with each other.

• Kevin Clash, the voice of Elmo, is taking a leave of absence from Sesame Street amid now-retracted allegations that he engaged in a relationship with an underage teen. According to the Sesame Workshop, an investigation revealed that Clash “violated company policy regarding internet usage.” One of the offending work-sent emails: “I’m sorry that I keep talking about sex with you, it’s driving me insane.”

The lesson should be obvious, but apparently needs repeating—Think Before You Click. (Hey, that’s a good name for a book … or a Sesame Street skit).

For some other thoughts on these stories-of-the-week:

• Lessons from the David Petraeus scandal — from Work Matters
• General David Petraeus Not Very Good At Cyber Defense — from Kashmir Hill’s The Not-So Private Parts
• How CIA Director David Petraeus's Emails Were Traced (and How to Protect Yourself) — from Lifehacker
• David Petraeus, Mike Leach and the Art of the Investigation — from YourHRGuy

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

Discrimination

• What Remedy Is Appropriate When a Jury Concludes Sexual Harassment Occurred? — from Dan Schwartz’s Connecticut Employment Law Blog
• Two Pregnant Employee Terminations in Two Months Too Coincidental for Southern District of Ohio — from Employer Law Report
• EEOC scores another big hit against inflexible leave policies — from Employer Legal Advocate
• Transgender Bathroom Battles—Coming Soon to Your Workplace — from HR Daily Advisor
• Frequent Use Of The “N-Word” Does Not Create A Hostile Environment If Only Made In “Jest” — from Employment Discrimination Report
• Time For Your Sexual Holiday Party — from Social Media Employment Law Blog
• Word to the wise: Centralize ADA accommodations decision-making — from Warren & Associates Blog

Social Media & Workplace Technology

• Obama's re-election evokes ugly Facebook-racism from some employees — from Eric Meyer’s The Employer Handbook Blog
• Facebook Party Pics Doom FMLA Claim — from Phil Miles’s Lawffice Space
• Court Orders Broad Discovery of Class Members' Social Media, Text Messages & Email — from Electronic Discovery Law

HR & Employee Relations

• Why Ms. X Is Leaving BigLaw: Busy Mom Details Untenable Schedule in Departure Memo — from the ABA Journal
• An Overwhelmed Mother’s Departure Memo — from the New York Times Motherlode blog
• Today Show Report Highlights Room for Improvement — from Nick Fishman’s employeescreenIQ Blog
• Workplace Investigations: The Employee’s Lawyer’s Perspective — from WinWinHR
• My boss doesn’t understand that I have kids — from Evil HR Lady, Suzanne Lucas
• Employees Love It, But Does a 4-Day Workweek Work For Your Business? — from TLNT
• Smoking in the Boys’ Room: You’re Fired! — from Blogging4Jobs

Wage & Hour

• Independent Contractor Misclassification Should Remain Key Area of Concern for Employers — from Wage & Hour Defense Blog
• Starbucks Gets a Triple Shot of Damages as $14.1 Million Wage-and-Hour Award Upheld — from Smart HR Manager
• Are Employers Required to Compensate Employees for On-Call Time? — from Minnesota Employer
• 6th Cir. Affirms Dismissal of FLSA Gotcha Litigation — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook Pictures of Employee Socializing at Local Festival Drown Her FMLA Claims — from Jeff Nowak’s FMLA Insights

Labor Relations

• The NLRB will be active in the non union workplace and more visible to the public — from John Holmquist’s Michigan Employment Law Connection
• Mandatory Employment Arbitration Clauses: Clearing the Hurdles, Part II — from The Emplawyerologist

Until next week:

Facebook foible foils FMLA fight

Wendy Barnett worked as a nurse in the psychiatric unit at Aultman Hospital. When her boss, for whom she did not care, was fired, Barnett sent the following email through Facebook to at 14 people, including 9 present or former coworkers:

Lisa got officially ax (sic) today! I am singing DING DONG THE WITCH IS DEAD THE WICKED WITCH, DING DONG THE WICKED WITCH IS DEAD.

How poetic this comes the same day Sexton died, I would much rather get f..cked up the ass with hot pepper than endured what that souless (sic) bitch put me through for 4 years...including turning me into the board...God does grind a fine mill when revenge is taken on by him...back when I was off due to drug accusations and praying, and praying, never would I have imagined she lose (sic) her job, marriage, and family, friends all at the same time! Karma Now I should tell you how I really feel!

Love and fuzzies, Wendy

The hospital undertook a full investigation upon learning of the email, which Barnett initially denied writing. When one of the hospital’s vice presidents contacted Barnett for a meeting, Barnett, sensing that her termination was on the horizon, called in sick and asked for a medical leave. Despite receiving a medical certification from Barnett’s doctor, the hospital proceeded with the termination.

The trial court rejected Barnett’s FMLA claim, both because it made its decision to terminate before she had ever requested a medical leave, and because she lied about being the author of the email rant during the hospital’s investigation.

As the Sixth Circuit said … bluntly, “[A]n employee may not insulate [herself] from a pending dismissal by opportunistically invoking the FMLA.” … In this case Defendant has put forth uncontroverted evidence that Plaintiff lied repeatedly to her superiors regarding her conduct, and that she was terminated for her dishonesty…. The uncontroverted evidence in the case is that her lying was the motivation for her termination.

Yesterday, I made the point that even though people like to treat social media as the new kid on the block, it is really nothing more than a communication tool, to which all of the old rules of the workplace apply. This case helps illustrate that point. The hospital fired Barnett not because of her email rant, but because when confronted with the email, she compounded her problems by lying about the authorship of the email.

Old rules + new technology = same result.

In compelling discovery, court likens social media account to “Everything About Me” folder

Courts are all over the map on whether to order the disclosure of an employee’s social media accounts during discovery in employment cases. The seminal case—EEOC v. Simply Storage Management, decide more than two and a half year ago—ordered the broad discovery of an employee’s social media accounts when the case alleges something more than “garden-variety” emotional distress. Since Simply Storage Management, however, some courts have begun to retract from that broad position, finding that despite the non-private nature of most social media, employees nevertheless enjoy some right not to have their personal lives ripped apart without some showing of relevancy to the issues in the case.

This month, however, brings us EEOC v. The Original Honeybaked Ham Co. (D. Col. 11/7/12) [pdf], which presents one of the most liberal views of the discovery of employees’ social media accounts since Simply Storage Management.

Honeybaked Ham involves allegations of sexual harassment brought by the EEOC on behalf of a class of two dozen female employees. The employer sought discovery of “numerous categories of documents” related to the class members’ emotional and financial damages, credibility, and bias, including the contents of their social media accounts.

The court concluded that there was “no question” that the company had established that “the documents it seeks contain discoverable information.” The court went on to make the following broad-based comment about the role of social media accounts in discovery:

If all of this information was contained on pages filed in the “Everything About Me” folder, it would need to be produced. Should the outcome be different because it is on one’s Facebook account? There is a strong argument that storing such information on Facebook and making it accessible to others presents an even stronger case for production, at least as it concerns any privacy objection. It was the claimants (or at least some of them) who, by their own volition, created relevant communications and shared them with others.

This case is but one in the evolving landscape of social media discovery in employment cases. Part of the struggle we face in seeking discovery of employees’ social media accounts is educating the judges who decide the motions to compel. The reality, however, upon which the Honeybaked Ham court seized, is that while the medium of communication might be different, the rules of the road are same. Discoverable information is discoverable information, whether it’s a paper record or an electronic diary.

The image of an “Everything About Me” folder is a powerful one. I love that analogy, and I am certain I will be using it in future motions to compel to help educate as to why a Facebook or other social media accounts should be discoverable.

[Hat tip: Electronic Discovery Law]

Must an employer accommodate an employee for a family member’s disability?

A little more than year after Mindy Adams began working for Servpro, her husband was diagnosed with cancer. One week after Servpro approved Adams’s FMLA leave, it fired her for insubordination, relying on statements from customers and co-workers that she had been disrespectful, exhibited a poor attitude, and failed to perform her job properly. Believing that the real reason for her termination was the need for time off to care for her ill husband, Adams sued for disability discrimination.

In Adams v. Valega’s Professional Home Cleaning (N.D. Ohio 11/2/12), the court dismissed her claims, concluding that employers are not required to provide reasonable accommodations to employees associated to those with a disability.

In addition to protecting disabled employees, the ADA also protects employees from discrimination based on the “known disability of an individual with whom the qualified individual is known to have a relationship or association.” Yet, at least in the 6th Circuit, “employers are not required to provide reasonable accommodations to non-disabled workers under this section of the Act.”

The Adams court illustrates this rule:

For example, an employee may be fired under a neutral policy concerning attendance or tardiness, even if the reason for the absence or tardiness is to care for the disabled spouse. There is a distinction between firing an employee because of a relative’s disability, and firing an employee because of the need to take time off to care for the relative.

The court recognized and discussed the fine line between firing an employee because of a relative’s disability and firing an employee because of the need to take time off to care for that same relative (quoting the ADA’s legislative history):

“[A]ssume, for example that an applicant applies for a job and discloses to the employer that his or her spouse has a disability. The employer believes the applicant is qualified for the job. The employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order to care for his or her spouse, declines to hire the individual for such reasons. Such a refusal is prohibited….

“In contrast, assume that the employer hires the applicant. If he or she violates a neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the spouse. The employer need not provide any accommodation to the nondisabled employee. The individuals covered under this section are any individuals who are discriminated against because of their known association with an individual with a disability.”

There are two points to make about this case:

1. A refusal to grant time off as an accommodation for the disability of an employee’s family member will only pass muster for employers too small to be covered by the FMLA or employees who did not work long enough to be eligible for FMLA leave. If you are an FMLA-covered employee, and an employee is FMLA eligible, then he or she is entitled to 12 annual weeks of leave, which includes leave for the serious health condition of a close family member. The court concluded that Servpro was too small to be covered by the FMLA, and dismissed Adams’s FMLA claim. You must analyze both statues—the ADA and the FMLA—before you can conclude that you don’t have any obligation to provide time off.

2. I cannot over-state enough how fine a line it is between lawfully terminating an employee because of the need to take time off to care for an ill relative, and unlawfully terminating an employee because of a relative’s disability. These decisions are risky, and need to be made carefully. Nine times out of 10, firing an employee who recently asked for time off to care for an ill family member will result in litigation. You need to decide whether you can swallow that risk before you make the termination decision.

Some workplace social media stats to start your week

Northeast Ohio’s Employers Resource Council recently published the results of its 2012 Social Media in the Workplace Survey [pdf]. Some of the results are eye-popping (and not necessarily in a good way):

For example, I find it hard to believe that only 47% of organizations have a social media policy in place.

It’s also hard to believe that only 27% of organizations in Northeast Ohio are using social media for recruiting. Some surveys peg the national number at closer to 90%. Is it possible that our region is that far behind the curve on this issue?

Consider these numbers on the prohibition on the use of social media in the workplace:

• 55% prohibit employee use of social media during work hours on a company-issued computer
• 43% prohibit employee use of social media during work hours on a company-issued mobile device
• 32% prohibit employee use of social media during work hours on a personal mobile device

How about the percentage of companies that block access to various social media sites on company computers:

• 26% block employee access to Facebook
• 18% block YouTube
• 17% block Twitter
• 11% block blogs and wikis
• 9% block photo-sharing sites
• 7% block LinkedIn (Who is blocking LinkedIn, and why?)

With most employees keeping iPhones or Androids in their pockets, it is simply not feasible to prohibit the use of social media in the workplace, or block access to sites. The work-around via a mobile phone is just too easy for an employee to accomplish and too difficult for a company to police.

I also found enlightening the answers to this question—of organizations with a social media policy, what percentage contain these provisions:

• Guidelines for employees professional social media use — 43%
• Disclosure that social media use may be monitored — 35%
• Guidelines for employees personal social media use — 32%
• Guidelines for photo/video postings — 19%
• Guidelines for disclosing sponsorships and affiliations — 18%
• Guidelines over supervisor-employee social media interaction— 5%

If you are one of the 53% of companies that has a social media policy, and yet that policy is missing any of these key provisions, what is left for it to say?

Reading the results of this survey make it clear to me that businesses have a lot to learn about the intersection between social media and the workplace. Yet, companies are not necessarily at fault for being behind the 8-ball on these issues. The reality is that the technology is evolving more quickly than businesses can keep up with the resulting issues. After all, companies have issues on their plates other than employees’ Facebook pages. Yet, the more you fall behind, the harder it becomes to catch up. The pace of these issues will not slow in the coming years. In other words, companies need to get their arms around these issues now, or risk falling off the workplace social media precipice.

WIRTW #249 (the “four more years” edition)

Meet the new boss, same as the old boss. POTUS 44 is still POTUS 44. What does the next four years of President Obama mean for labor and employment law? Some of my fellow bloggers share their thoughts:

• A Look Back at Obama’s (First?) Four Years and Employment Law and Four Potential Employment Law Impacts of Obama’s Next Four Years — from Dan Schwartz’s Connecticut Employment Law Blog
• How will the 2012 Presidential election affect federal employment and labor law? — from David Yamada’s Minding the Workplace
• Obama’s Next Four Years: What It Means for HR and Employment Law — from Stephanie Thomas’s Proactive Employer Blog
• What Obama’s re-election means for HR and employment issues — from BLR HR Daily Advisor
• Future Shock: What the Election Results Mean For the U.S. Workplace — from Workplace Diva
• Obama Wins, Senate Democrats Keep Majority - What Will it Mean for Employers? — from Washington D.C. Employment Law Update

---

Please remember — if you subscribe to my RSS feed, you need to re-subscribe at this link to ensure that you do not lose your daily updates.

---

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

Discrimination

• Harassment Prevention: It's All Fun and Games … Until It's Not — from Molly DiBianca’s Delaware Employment Law Blog
• Supervisor Stating I’m “Going To See To It” That Worker Retires When He’s 62 May Be Direct Evidence Of Age Discrimination — from Atlanta Employment Lawyer Blog
• Maintaining a “Good Ol’ Boys” Environment Is A Sure Way To Get Sued — from Employment Discrimination Report
• I was fired while undergoing medical treatment: Is it legal? — from Evil HR Lady, Suzanne Lucas

Social Media & Workplace Technology

• Emerging Issues in Social Media – The Status of Social Media Password Legislation — from netWORKed Lawyers
• Is Technology Making You More (or Less) of a Jerk? — from Harvard Business Review
• LinkedIn Now Has 187 Million Members — from Mashable
• Do “sexting” and “mash-up” belong in the dictionary? — from Lawyerist

HR & Employee Relations

• Four Tips to Remember When Documenting — from Workplace Insights
• What the Questions in Job Related Personality Tests Really Mean — from Lifehacker
• The Cost of Obesity — from Rob Radcliff’s Smooth Transitions
• No Bathroom Breaks For You! — from Donna Ballman’s Screw You Guys, I’m Going Home
• Madison Square Garden Company Strong-Arms Employees Into Using Vacation Days Post-Sandy — from Deadspin
• Playbook for Protecting Trade Secrets Begins with Protecting Your Home Turf — from Jason Shinn’s Michigan Employment Law Advisor

Wage & Hour

• Paying banana boxes of food as OT is not an a-peeling option — from Eric Meyer’s The Employer Handbook Blog
• Three Myths about Holiday Pay Under the FLSA — from Blogging4Jobs
• De Minimis Exception Applies Only in Cases Where There is a “Practical Administrative Difficulty in Recording Time” — from Overtime Law Blog
• The 40 Hour Workweek is Alive and Well… — from China Gorman
• Handling Intermittent Leave (and Not Intermittently Losing Your Mind) — from Mark Toth at TLNT
• Transfer to Lesser Sales Territory Was Okay under FMLA, Court Says — from Smart HR Manager

System for employees to report unpaid time insulates company from wage and hour claim, says 6th Circuit

In White v. Baptist Memorial Hosp. (6th Cir. 11/6/12) [pdf], the 6th Circuit answers one of the more difficult questions that faces employers under our wage and hour laws—what is an employer’s responsibility to pay an employee for off-the-clock work?

The employer in White maintained a policy under which all employees received a daily, automatic unpaid meal break. The policy also provided, however, that if an employee worked through a meal break, or had a meal break interrupted for a work related reason, the employee would be compensated for the time worked. The policy instructed employees to record all time spent working during meal breaks in an “exception log,” from which the employer calculated any off-the-clock pay owed.

The plaintiff, Margaret White, testified that she usually was paid when she reported a missed meal break in the exception log. She also testified that there were occasions when she missed meal breaks and was not compensated. When there were payroll errors, White stated that she reported the mistake to a nurse manager, and the problem were “handled immediately.” White testified that while she told supervisors and the HR department that she had missed meal breaks, she never told them that she had not been paid for them.

Eventually, White stopped reporting her missed meal breaks in the exception log, and stopped reporting payroll errors to a nurse manager. Instead, she brought suit under the Fair Labor Standards Act for failing to compensate her for working during meal breaks.

The 6th Circuit concluded that White’s case was properly dismissed. It focused its analysis on this issue—whether the employer knew, or had reason to know, it was not compensating White for working during her meal breaks. Because White had failed to follow the hospital’s procedures for reporting unpaid time, the employer was not at fault:

Under the FLSA, if an employer establishes a reasonable process for an employee to report uncompensated work time the employer is not liable for non-payment if the employee fails to follow the established process. When the employee fails to follow reasonable time reporting procedures she prevents the employer from knowing its obligation to compensate the employee and thwarts the employer’s ability to comply with the FLSA….

Baptist established a system to compensate its workers for time worked during meal breaks. When White utilized the system she was compensated and when she failed to use the system she was not compensated. Without evidence that Baptist prevented White from utilizing the system to report either entirely or partially missed meal breaks, White cannot recover damages from Baptist under the FLSA.

What is the lesson for employers to take away from White? Have a reasonable process for employees to report uncompensated work time. Under the FLSA, it is the employee’s burden to show that he or she was working during non-working time. A policy that underscores that burden by requiring employees to document times during which they are working “off-the-clock” can only help an employer defend against an employee’s claim for compensation for unreported, off-the-clock time.

It just doesn’t matter (who’s the President of the United States)

By the time you’re reading this, we’ll either have the same President, or a new President, or, they’ll still be counting Ohio’s provisional and absentee ballots, and we’ll have no idea who the next President will be. (Update: Ohio was nowhere near as close as anyone thought it might be.)

The President has a large impact on labor and employment policy in this country. If one candidate wins we’ll have universal health care and activist federal agencies. If the other candidate wins we may not (or may) have universal health care, and we will have less activist federal agencies. Who wins also impact who is appointed to the federal bench, including the Supreme Court, which may be any President’s most lasting legacy.

And yet, whether we have President Obama or President Romney for the next four years shouldn’t make a lick of difference on how you manage your employees. You should still follow the golden rule. You should still treat employees with dignity and respect. You should still pay employees for all the hours they work. You should still avoid discrimination, and harassment, and retaliation.

Each President will offer his own agenda. The next four years under President Obama will look very different to businesses than the next four year under President Romney. Be good to your people, and the rest, more often than not, falls into place.

In other words, if you manage your employees reasonably, pragmatically, and with decency, it just doesn’t matter, from a day to day perspective, who the President is.

Silence can be golden when dealing with employee medical issues

“Regarded as” disability discrimination claims are supposed to be blind to whether an employee actually suffers from a physical or mental impairment that limits a major life activity. These claims protect individuals who are able to meet a job’s requirements from an employer’s perception of an inability to perform the job’s functions because of a medical condition.

What happens, however, when an employer makes a personnel decision with no knowledge that the employee suffers from some medical condition? Can the employee still claim that the employer “regarded” him or her as disabled? According to one recent decision from an Ohio court of appeals, the answer is no.

In Field v. Medlab Ohio (11/1/12) [pdf], the employee alleged that her employer transferred to her a less favorable sales territory and ultimately terminated her because it perceived her as suffering from alcoholism (a protected disability).

The court disagreed, because Medlab had no knowledge of Field’s condition at the time it made its decisions regarding her employment:

There is nothing in the record that shows that MedLab had any knowledge that Field suffered from alcoholism or any mental disorder as defined. Moreover, the record establishes that any transfer or reassignment of territories occurred prior to MedLab learning that Field was hospitalized or that she was having a “nervous breakdown.” Finally, Field was not terminated from employment with MedLab until after Field continued to perform unsatisfactorily in her new “smaller” territory. The record reflects that at no time did MedLab refer to her hospitalization or any mental disorder as the reason for transfer or termination. The record supports that Field’s termination was based on job performance, and Field has failed to show that MedLab’s reasons for termination were merely pretexts.

It’s easy to communicate to managers and supervisors the concept that personnel decisions should be made in a vacuum free from any consideration of medial conditions. It’s difficult, however, for decision makers always to remain silent on these issues. One inopportune slip of the tongue about an employee’s medical condition (or perceived medical condition) could convert a defensible disability discrimination claim into a knock-down, drag-out fight culminating in a risky jury trial. Field v. Medlab Ohio illustrates that good outcomes do result from employment decisions made without reference to impairments, regardless of the employee’s underlying medical issues.

What skeletons are you unearthing by suing an ex-employee?

Before you bring suit against an ex-employee, you might want to consider whether their exist any skeletons in your employment closet that could come back to haunt you in the litigation. Case in point—Automotive Support Group, LLC v. Hightower [pdf], decided yesterday by the 6th Circuit.

Automotive Support Group sued two ex-employees for breaching the non-competition provisions in their employment agreements. One of the sued employees, Don Ray McGowan, counterclaimed in the lawsuit for unpaid wages and severance owed under his employment agreement.

The appellate court affirmed the trial court’s dismissal of the company’s claims. It also affirmed the trial court’s judgment for McGowan on his unpaid wage and severance claims. How much did the employee win? $70,501.31—$750 in unpaid wages (trebled under the applicable South Carolina wage payment statute), $2,500 in severance pay, and $65,751.31 in attorneys’ fees. Add to that $70,000 whatever the company paid its own lawyers to litigate this case.

There are two lessons for employers that leap to mind:

1. Unclean hands. Non-competition cases are often decided on equitable bases. In addition to money damages, you are likely asking a court to award you an injunction enforcing the agreement and precluding the employee from working for a competitor. To obtain an injunction, however, one must have what is called “clean hands.” Clean hands means that the party seeking an injunction has not acted inequitably or unfairly toward the party it is seeking to enjoin. Refusing to pay wages raises the possibility of a court refusing to issue an injunction because of your unclean hands. The better practice: pay the wages (you owe them anyway), and then file suit.

2. Sometimes you get what you ask for. Would McGowan have started a lawsuit over $3,250? Probably not. Once he was sued, did have anything to lose by raising those issues as a counterclaim? Again, probably not. If you are going to bring a lawsuit against an ex-employee, make certain that you are not creating an environment to incent that individual to file a claim that otherwise might stay buried and never see the light of day.

WIRTW #248 (the “vote early, vote often” edition)

In case you haven’t heard, there is a presidential election taking place on Tuesday. My guess is that a few of your employees are going to vote, and some may even want to arrive at work late, or leave early, to beat the pre- and post-9 to 5 rush at the polls.

In case you are thinking about holding your workers to their normal work hours on election day, you should know that Ohio has a statute that requires employers to provide a “reasonable amount of time to vote on election day.”

And remember, if you don’t vote, you have no right to complain. Or, is George Carlin right, and it’s the other way around? (Do I need to warn you that a Carlin clip is likely NSFW?)

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

Discrimination

• EEOC Regional Attorneys Speak On the EEOC’s Future Targets — from Employment Discrimination Report
• Can You Be Fired For Supporting A Political Candidate? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Judge Nancy Gertner on the Situation of Discrimination Claims — from The Situationist
• Butt Slapping … Not Harassment? — from Phil Miles’s Lawffice Space
• What happens when the boss is dating the sexual harasser? — from Warren & Associates Blog

Social Media & Workplace Technology

• Employers, beware the siren’s song of social media searches — from Technology for HR
• Gap veers from its social media policy in Twitter blunder — from Ragan.com
• I Was Fired For Recruiting on LinkedIn — from Jessica Miller-Merrell’s Blogging4Jobs
• How to Update your Employee Handbook to Include Social Media — from i-Sight Investigation Software Blog
• Analysts’ Financial Disclosures on Facebook Lead to Fine and Termination — from Dan Schwartz’s Connecticut Employment Law Blog
• Salty about Sandy: 20 Hurricane tweets from your employees — from Eric Meyer’s The Employer Handbook Blog
• eDiscovery 101: BYOD = BYOA (ASPIRIN) — from e-Discovery Insights
• When you and employer split, who gets your friends and followers? — from Bob Sullivan at NBC News

HR & Employee Relations

• Dear Evil Skippy: Can Management Require Employees To Get Flu Shots? — from Evil Skippy at Work
• Why Documentation Is Important — from Mike Haberman’s Omega HR Solutions
• Non-smokers Should Heart Workplace Smoking Bans — from Workplace Diva
• Employment-at-Will: Walking the Fine Line, Conclusion — from The Emplawyerologist
• DIY Employment and Noncompete Agreements: Are You Getting What you Pay For? — from Jason Shinn’s Michigan Employment Law Advisor
• The horror! Nine things employers say that spook their lawyers — from Robin Shea’s Employment and Labor Insider

Wage & Hour

• Modifying Workweeks to Avoid Overtime: Employers Should Still Proceed With Caution — from Wage & Hour Defense Blog
• Do you have to be paid if your office is closed because of weather? — from Evil HR Lady, Suzanne Lucas
• Dads Need Lovin’ Too! Father Can Proceed with FMLA Retaliation Claim in “Macho Culture” Lawsuit — from Jeff Nowak’s FMLA Insights
• Transfer to Lesser Sales Territory Was Okay under FMLA, Court Says — from Smart HR Manager
• How to Negotiate Your Parental Leave — from Harvard Business Review

Labor Relations

• Unions Scold Corporations… For Trying to Keep Up With Union Politicking — from LaborPains.org
• Was the NLRB’s Decision About Employee Use of Social Media on Company Time Much To Do About Nothing? – Maybe — from netWORKed Lawyers

The “I”s have it: NLRB says don’t shred those at-will disclaimers just yet

If you are a non-union employer, you likely have an employee handbook that sets forth the policies and procedures that guide your relationship with your employees. And, if you have an employee handbook, it likely contains a disclaimer stating that employees are at-will, that employees can be fired at any time for any reason, and that nothing in the handbook alters that at-will status. Indeed, employers commonly deploy these disclaimers to avoid claims by employees that the handbook creates a binding and enforceable contract.

Consider the following three at-will disclaimers, taken from real, live employee handbooks:

1. I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.

2. The relationship between you and Mimi’s Cafe us referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship. Nothing contained in this handbook creates an express or implied contract of employment.

3. Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

What’s the difference between these three policies? According to the February 1, 2012, opinion of a National Labor Relations Board Administrative Law Judge, #1 is an illegal and overly broad restraint on the right of employees to engage in protected concerted activity. According to two advice memoranda published yesterday by NLRB Acting General Counsel Lafe Solomon, #2 and #3 pass muster and are not illegal.

What’s the difference? According to Mr. Solomon, the distinction lies in the use of the personal pronoun, “I.”

The ALJ found that the signing of the acknowledgement form, whereby the employee—through the use of the personal pronoun “I”—specifically agreed that the at-will agreement could not be changed in any way, was “essentially a waiver” of the employee’s right “to advocate concertedly … to change his/her at-will status.” Thus, the provision in American Red Cross more clearly involved an employee's waiver of his Section 7 rights than the handbook provision here.

By comparison, the Mimi’s Cafe and Rocha Transportation disclaimers merely serve to reinforce the unambiguously-stated purpose of the employers’ at-will policies, and do not require employees individually to agree never to alter their at-will status.

These distinctions are nuanced, and the NLRB recognizes their unsettled nature. From the NLRB’s website:

Because Board law in this area remains unsettled, the Acting General Counsel is asking all Regional Offices to submit cases involving employer handbook at-will provisions to the Division of Advice for further analysis and coordination.

It is refreshing (surprising? relieving?) to see that the NLRB’s Office of General Counsel is backing off the position that any at-will disclaimer violates the NLRA, and is willing to evaluate them on a case-by-case basis.

For now, you should take a look at your handbook disclaimers and consider scrubbing them of personal pronouns. Instead, consider using the examples from either Mimi’s Cafe or Rocha Transportation as a template.

Of course, the validity of that template to avoid a binding contract under state law could vary from state to state. For this reason, you are best served running any disclaimer by your employment counsel before rolling it out to your employees.

What scares employers? How about a union organizing campaign

Oooh, Scary!

Since today is Halloween, I thought it appropriate to theme today's post around that which scares employers. Something of which I know most employers live in undying fear is a union organizing campaign.

Do you know what one of the best tools employers have at their disposal to combat this fear? A no-solicitation policy, which prevents employees from discussing union-related matters in work areas and during work time.

These policies, however, have to be both lawfully drafted and lawfully enforced. For example, two weeks ago a federal court in Cleveland entered an injunction preventing an employer from enforcing a no-solicitation policy against its employees who were engaged in a union campaign. The policy, which was non-discriminatory on its face, read as follows:

During work time, each associate is to be occupied with his or her assigned responsibilities. Engaging in the distribution of literature during work time or in working areas or soliciting support of other associates for any group, cause or product on work time is prohibited.

On its face, there is nothing wrong with that work rule. It non-discriminatorily and equally applies to union and non-union activities, and only prohibities solicitations during work time or in working areas. 

The court, however, did not limit its examination to the face of the policy. It also looked at statements made by the employer's CEO about the policy. He allegedly told a non-employee union organizing representative that "the facility would neither recognize nor bargain with the Union." Then, in an employees-only meeting, the CEO bragged about the number of nursing homes he owned, "that none of them are union, and none of them will be union," and that there would be no union solicitations on the premises.

Based on those series of comments, the court concluded that the CEO's statements were sufficient to transform a facially lawful no-solicitation policy into an overly broad illegal policy.

What's the lesson for employers from this scary tale? It is not enough merely to have a no-solicitation policy. You must also take seriously the NLRA's rules against applying policies to single-out labor unions and the employees who support them. 

If you only enforce your no-solicitation policy when faced with a union organizing campaign or to ban union-related activity, no amount of vanilla in your policy will save you from an unsavory trick when your enforcement is challenged.

Whether your managers should “friend” subordinates may be gender based.

I’ve written before about whether you should allow your employees to connect with each across the various social networks (here and here).

Last week, The Washington Post reported on the upcoming publication of a white paper by Wharton School professor Nancy Rothbard, entitled, “OMG My Boss Just Friended Me.” In this white paper, professor Rothbard argues that an employee's decision of whether to accept the friend request made by a manager or supervisor depends on the “creep” factor—the gender of the person making the request:

The boss’s gender plays a role in an employee’s willingness to accept the invitation. In one experiment, Rothbard found that participants were more likely to accept Facebook friend requests from female bosses when the women disclosed more information about themselves online. When male bosses disclosed more information about themselves, however, participants were less likely to want to virtually connect with them.

What does this mean for your business's social media policy? It means you have lots to think about when adopting the right social media policy for your organization. For example, social media use has a generational component. Baby Boomers have a much different conception of how much is appropriate to share online than Gen-Xers, who, in turn, are more guarded than Gen-Yers and Millennials. Your social media policy has to account for these generational differences.

If professor Rothbard is correct, your social media policy also has to account for gender differences. Needless to say, there is no right or wrong answer to this question. As professor Rothbard’s whitepaper illustrates, however, these issues are highly nuanced, and need to be understood and accounted for in your workplace.

Greatest hits: Do you know what to do when severe weather strikes your workplace? #Sandy

I don’t know if you've heard, but there this little storm named Sandy trekking towards the mid-Atlantic and New England. The storm is so potentially dangerous that the National Weather Service is sending out passive-aggressive warnings, just in case people are thinking of riding it out: “If you are reluctant, think about your loved ones, think about the emergency responders who will be unable to reach you when you make the panicked phone call to be rescued, think about the rescue/recovery teams who will rescue you if you are injured or recover your remains if you do not survive.”

Do you know know what to do with your workers when a weather event such as Sandy aims for your workplace? Two winters ago, I offered five suggestions for your workplace extreme weather policy, including how to handle issues such as attendance, wage and hour, and telecommuting. In light of this week’s storm of apparently historical proportions, I thought it best to revisit that post: Do you have a severe weather policy?

In the meantime, for all of my family and friends in the storm’s immediate path, stay safe, and think of a kinder, more gentler Sandy: