Say it ain’t so: court holds an employer does not have to accommodate a pregnant employee

Last year, I railed against the Pregnant Workers Fairness Act, a bill that, if passed, would require employers to make a reasonable accommodation for an employee’s pregnancy, childbirth, and related medical conditions. I argued that the law does not need alteration because Title VII, through the Pregnancy Discrimination Act, already requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition.

Last week, in Young v. UPS, the 4th Circuit Court of Appeals held that Title VII does not require employers to provide pregnant women a “reasonable accommodation” when, as a result of pregnancy, they are limited in their ability to perform work duties. Was my musing about the evils of the Pregnant Workers Fairness Act off-base?

The facts of Young are simple. UPS required Ms. Young to be able to lift up to 70 pounds as part of her job as a package delivery driver. After she became pregnant, her doctor limited her lifting. Ms. Young requested that UPS move her to a light duty assignment. UPS’s collective bargaining agreement allowed an employee to work a light duty assignment only because of an “on-the job” injury or when “disabled” under the ADA. Because Ms. Young did not meet either of these categories UPS denied her request.

Ms. Young argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree the employer accommodated a disabled employee. The 4th Circuit rejected her argument, finding that where an employer’s policies treat pregnant workers and non-pregnant workers alike, it has complied with Title VII:

Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her healthcare provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work—i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress's intent in enacting the PDA.

Reading this decision, you might be thinking to yourself, “Hyman, you’re wrong. Title VII does need to be amended to grant accommodation rights to pregnant women.” You, however, would be jumping the gun.

As Robin Shea astutely observed at her Employment & Labor Insider, because of 2009’s ADA Amendments Act, today’s ADA is very different than the statute in effect during Ms. Young’s 2006 pregnancy:

In 2007, the “old” Americans with Disabilities Act was in effect, which had some pretty stringent definitions of who was considered “disabled.” Not only was a 20-pound lifting restriction generally not considered “disabling,” but virtually no temporary impairment, no matter how severe, was. And pregnancy is not a “disability” in itself because the ADA says so. Accordingly, Ms. Young was out of luck.

The ADAAA, of course, greatly expanded the definition of “disability,” and the interpretations of the Equal Employment Opportunity Commission indicate that a temporary condition that lasts more than six months could indeed be considered “disabling.” Ditto for a 20-pound lifting restriction.

In other words, today an employer could be required to provide a reasonable accommodation to a pregnant employee to the same extent it provides a non-pregnant disabled employee an accommodation, or face the possibility of a pregnancy discrimination lawsuit.

Handling accommodation requests by pregnant employees is a thorny area of the law. My recommendation is instead of trying to sort through these issues for yourself, you contact your employment counsel before denying an accommodation request made a pregnant employee.

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Thanks to Justine Konicki for her help on this post.

Putting the human back in human resources, redux

As a parent of a child with some medical issues, I am very sensitive to the needs of working parents. Luckily for me, I work at business that understands these needs and has never batted an eye when my son spent 19 days in the hospital, or I want to attend an echocardiogram or some other appointment with one of his doctors. Some employees, however, are not as blessed.

Consider, for example, the case of Wegelin v. Reading Hosp. & Med. Ctr. (11/29/12). Rachel Wegelin’s daughter, Carolyn, suffers from pervasive developmental disorder, which manifests by delays in social and emotional functioning, sensory integration difficulties, and attention deficit. Carolyn attends before and after daycare at a facility to and from which she can be transported to school. When the hospital moved Wagelin’s parking space to a more distant lot, she no longer had sufficient time to pick up Carolyn from the daycare before it closed. So, she requested FMLA leave for the express purpose of finding a suitable daycare that would accommodate her new work schedule and her daughter’s medical needs. The employer refused and fired the employee when she took off the time anyway.

In defending against the inevitable FMLA lawsuit, the employer argued that the FMLA does not provide leave for a parent to locate childcare. The court, in denying the employer’s motion for summary judgment, vehemently disagreed:

Making arrangements for “changes in care” is expressly covered by the regulations. Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s daycare is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her. Bowmansville daycare center was suitable, but no longer available. Therefore, when Reading Hospital changed Wegelin’s parking assignment, she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.

I’ve written before about the importance in putting the human back in human resources. I also discuss this idea in detail in my latest book, The Employer Bill of Right: A Manager’s Guide to Workplace Law. This case perfectly illustrates this principle. How hard would it have been to accommodate this employee? And, no, I’m not suggesting that the hospital should have given her back her old parking space. As someone whose first question after making partner was, “Do I get a better parking space,” I understand the turmoil that accommodation would almost certainly cause. All kidding aside, this employee did everything she could to balance her job and the unique needs of her family. All she requested was some small amount of unpaid time off to find a childcare solution to accommodation her new work schedule and her child’s serious medical needs.

Or, let me put it this way for those of who are more dollars-and-cents oriented in your thinking. Employers, what do you think costs more? Accommodating a few days of unpaid time off, or defending this lawsuit?

[Hat tip: Pennsylvania Family Law Blog, c/o Employment Discrimination Report]

Can you hear me now? Employer cannot reject disabled employee without individualized inquiry of the ability to do the job

Nicholas Keith has been deaf since birth. He is also, apparently, a pretty good swimmer. He successfully completed the Oakland County, Michigan, lifeguard training course with the assistance of sign language interpreter to communicate instructions. The county rescinded its conditional job offer for a lifeguard position after Keith’s pre-employment physical. The examining doctor approved Keith’s employment as a lifeguard if his deafness was “constantly accommodated.” Without any consultation with Keith, the county unsuccessfully brainstormed possible accommodations, and, ultimately, rescinded the job offer.

In Keith v. Oakland County (1/10/13) [pdf], the 6th Circuit reversed the district court’s order dismissing Keith’s disability discrimination lawsuit. The court relied upon the ADA’s requirement for an “individualized inquiry in determining whether an [employee’s or applicant’s] disability or other condition disqualifies him from a particular position.”

In this case, the county made no individualized inquiry.

After Dr. Work entered the examination room and briefly reviewed Keith’s file, he declared, “He’s deaf; he can’t be a lifeguard.” Dr. Work made no effort to determine whether, despite his deafness, Keith could nonetheless perform the essential functions of the position, either with or without reasonable accommodation. Indeed, Dr. Work has no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. Dr. Work’s cursory medical examination is precisely the type that the ADA was designed to prohibit.

What is the takeaway for employers? If you are dealing with disabled applicants or employees, you cannot make the employment decision in a vacuum. You must act based on the actual disability and its effect on the particular individual’s ability to perform the job. You should consider:

• the individual’s personal characteristics;
• the actual medical condition; and  
• the effect, if any, the condition may have on the ability to perform the specific  job in question.

Most importantly, you should include the individual in the assessment. No one is a better judge of one’s real-world abilities and limitations than the individual himself or herself.

If you failing to engage in this individualized inquiry, it will look like you are making the employment decision based on stereotypes and generalizations, which the ADA is supposed to rid from the workplace. That perception will not bode well for your defense of an ADA lawsuit.

Be careful what you bring upon yourself when suing an ex-employee

Last week—in Quicken Loans,Inc. (1/8/13) [pdf]—an NLRB administrative law judge invalidated the confidentiality and non-disparagement provisions in an employment agreement between Quicken Loans an an ex-mortgage banker, Lydia Garza. This decision continues the NLRB’s march towards the overly broad expansion of the definition of protected concerted activity. Molly DiBianca, at her Delaware Employment Law Blog, sums up the decision thusly:

Admittedly, the ALJ's conclusion that an employer is not free to contract with its highly compensated professional employees that those individuals will not disparage their employer or steal its confidential and proprietary information is a bit depressing. But keep in mind the remedy, friends. Having found that the provisions violated the NLRA, the remedy ordered by the ALJ was that the provisions be revised. Or, if the employer didn't want to go to the trouble of reprinting new agreements for all of its highly compensated brokers, it could simply provide a single-page addendum, notifying those highly paid employees that the two provisions were rescinded.

I want to focus on another business lesson from the decision—why the employee filed the case in the first place. Here’s the ALJ’s summary of the charging party’s motivation for filing the charge with the NLRB.

Garza testified that shortly after she left the Respondent’s employ, she and five other former employees of the Respondent were sued by the Respondent for an alleged violation of the no contact/no raiding and the non-compete provisions of the Agreement.

I’m fairly certain that Garza never even thought filing a challenge to her employment agreement with the NLRB until she got sued and had to hire a lawyer, who, in turn, reviewed the agreement and saw an opening.

If you are going to sue an employee, current or former, make sure you do your diligence of your own potential liabilities. If you uncover something that can come back and bite you, make sure it is a claim with which you can live. Depending on what you unearth, leaving well enough alone with your employee may be the most prudent course of action.

WIRTW #256 (the “crystal ball” edition)

Last week, I shared the 2013 resolutions of some of my favorite blogs. This week, I’m sharing some employment law predictions for the coming year from two of the best employment law blogs out there.

• Reading the Tea Leaves for Employment Law in 2013 (Harry Potter Edition) — from Dan Schwartz’s Connecticut Employment Law Blog
• And The Crystal Ball Says: My Predictions for 2013 Employment Law — from Donna Ballman’s Screw You Guys, I’m Going Home

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

Discrimination

• How to Avoid Employment Litigation — from Heather Bussing at HR Examiner
• Surprise! Pay Equity a Top Priority for EEOC — from Stephanie Thomas at Compensation Cafe
• Could Your Sexual Harassment Policy Land You in Court? — from i-Sight Investigation Software Blog
• Representing an Overweight Female Defendant? Male Jurors May Be Biased, Study Says — from ABA Journal Daily News
• Following the rules does pay off — from EmployerLINC
• You’re Damned if You Turn a Blind Eye to a Disabled Employee’s Ability to Perform the Essential Functions of the Job — from damnedif
• Three Take-Aways from the EEOC's Strategic Enforcement Plan by Commissioner Chai Feldblum — from Workplace Fairness

Social Media & Workplace Technology

• This is my new go-to social-media-discovery judicial opinion — from Eric Meyer’s The Employer Handbook Blog
• LinkedIn now has more than 200 million users in more than 200 countries — from The Verge

HR & Employee Relations

• When Work Sucks: How to Terminate Your Employee — from Jessica Miller-Merrells’ Blogging4Jobs
• Dealing With Workplace Bullies As A Temporary Worker — from Workplace Diva
• Should Employers “Ban the Box”? — from Mike Haberman’s Omega HR Solutions
• Here Comes the Test Of Your Sick Time Policy — from Workplace Diva
• Trying to reason during the flu season — from John Holmquist’s Michigan Employment Law Connection

Wage & Hour

• An Employee Requests and is Denied Vacation Leave but Later Takes FMLA Leave for the Same Time Period. What Recourse Does an Employer Have? — from Jeff Nowak’s FMLA Insights
• Internship Class Action Settles for $250,000 — from San Antonio Employment Law Blog
• Tough Questions For The Interviewer: Charlie Rose Settles Class Action Intern Lawsuit Alleging Employee Status — from Wage & Hour - Development & Highlights
• DOL Regulatory Agenda: More Aggressive Activity Expected — from Wage and Hour Law Update

Trade Secrets & Competition

• What Can the NHL Lockout Teach Us About Mediating Non-Compete and Trade Secret Disputes? — from Trade Secrets & Non-Compete Blog
• Call Me, Maybe. Discovery of Employee Identities — from Molly DiBianca’s Delaware Employment Law Blog
• Trade Secret and Noncompete Survey – National Case Graph 2013 — from Fair Competition Law
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Conclusion — from The Emplawyerologist

Labor Relations

• Obama NLRB Presents Employers With Several Lumps Of Coal — from Stoel Rives World of Employment
• Investigation alert: The NLRB takes aim again at confidentiality — from Warren & Associates Blog
• When Does an Employer Have to Hand Over Witness Statements to a Union? — from Labor & Employment Law Perspectives
• NLRB Finds Employees’ Facebook Posts Venting about Coworker Are Protected — from netWORKed Lawyers
• New Media and Old Precedent under the National Labor Relations Act — from Employer’s Law Blog

Internet-Use Disorder: The Newest Disability?

The DSM-5, the official psychiatrist’s diagnostic manual, has accepted Internet Use Disorder for inclusion, albeit in a section devoted to conditions that require further research.

This “disease” has its roots in a 1995 satirical hoax by Dr. Ivan Goldberg. Despite its dubious origins, over the past decade its acceptance as a legitimate clinical disorder has grown, culminating in its upcoming inclusion in the DSM-IV.

What does this mean for your workplace? If Internet addiction is a psychiatric disorder, then employees who suffer from it may be protected by the ADA. This development has potentially significant implications for your workplace.

• Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, might you have to engage those employees in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area? 
• Do you have a policy that prohibits non-work-related Internet use? If so, such a policy might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

The inclusion of Internet-Use Disorder in the DSM-IV raises many more questions than answers for employers. Businesses need to be aware of the possibility that a cyber-surfing employee will raise this issue, and must prepare to address this problem a way that will not walk the employer into the trap of a costly ADA lawsuit.

This post originally appeared on The Legal Workplace Blog.

What isn’t a reasonable accommodation?

Employers spend a lot time with employees figuring out reasonable accommodations they can make for disabled employees. There are many accommodations that employers must consider if necessary to enable a disabled employee to perform the essential functions of the job. One type of accommodation that typically beguiles employers is job restructuring, including reassignments to other positions.

Wardia v. Justice & Public Safety Cabinet Dept. of Juvenile Justice (6th Cir. 1/3/13) provides an example of how these principles can play out.

John Wardia was a Youth Worker at the Campbell County Regional Juvenile Detention Center. Following neck surgery, he became unable to perform physical restraints on juveniles, an essential function of his job. Wardia initially requested, and the employer granted, a temporary accommodation working a light-duty position in the control room. After Wardia’s doctor made clear the disability was permanent, he asked for one of two accommodations—being relieved by coworkers whenever the need to restrain arises, or a permanent reassignment to the control room. The employer denied both requests and terminated Wardia’s employment.

The court upheld the dismissal of Wardia’s disability discrimination lawsuit.

• Rejecting Wardia’s request that a co-worker relieve him when the need arose to restrain someone, the court concluded, “The ADA does not require employers to accommodate individuals by shifting an essential job function onto others.”
• Rejecting Wardia’s request for a permanent assignment to the control room, the court concluded, “Employers cannot be required to convert either rotating or temporary positions into permanent positions … [and] temporary light-duty positions for recuperating employees need not be converted into permanent positions.”

Just because a disabled employee asks for an accommodation does not mean that you have to grant the request. Engage in the employee in the interactive process, and make a reasoned decision that the accommodation will enable the employee to perform the essential functions of the job while protecting your business from undue hardship.

Firing of “irresistible” employee does not equal sex discrimination?

She’s unavoidable, I’m backed against the wall
She gives me feelings like I never felt before
I’m breaking promises, she’s breaking every law
She used to look good to me, but now I find her
Simply irresistible

Robert Palmer. “Simply Irresistible.” Heavy Nova. EMI Records, 1988.

Every now and again an employer wins a case that offends my sensibilities as an advocate for employers’ rights. This is one of those stories.

By now, you’ve likely read about the employee fired because her boss found her too attractive. You’ve also probably read how the Iowa Supreme Court concluded that an employee fired under these circumstances cannot pursue a claim for sex discrimination under that state’s civil rights laws.

Melissa Nelson worked as a dental hygienist for Dr. James Knight for ten-and-a-half years. Dr. Knight terminated Nelson at his wife’s request. Nelson never flirted with Dr. Knight or sought an intimate or sexual relationship with him. Dr. Knight, however, was attracted to her, and made several comments to her about the tightness of her clothes, and their effect on the tightness of a certain area of his clothes.

Following Nelson’s termination, Dr. Knight replaced her with another female. In fact, every hygienist who ever worked for Dr. Knight was female.

In Nelson v. Knight (12/21/12), the Iowa Supreme Court concluded that Nelson had not presented a sex discrimination claim.

So the question we must answer is … whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction….

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet … Dr. Knight's unfair decision to terminate Nelson … does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson….

Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.

It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination…. If Nelson could show that she had been terminated because she did not conform to a particular stereotype, this might be a different case. But the record here does not support that conclusion. It is undisputed, rather, that Nelson was fired because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.

The media has heavily criticized this decision. That criticism is warranted. Yes, Dr. Knight only employs female hygienists, and replaced Nelson with another female. One could also argue that the doctor only fired Nelson because of her looks, not because of her gender. Those arguments, though, ignore the fact that if  she was a he, her looks would not have been an issue in her employment at all. The sex discrimination laws are supposed to insulate employees from employment decisions based on sex-based stereotypes, not protect the employers who make those decisions.

Nelson, a ten-plus-year employee, should not have to look for a new job merely because her boss might not be able to control himself around her. If the sex discrimination laws do not protect an employee like Nelson, then I fear we are taking a huge civil rights step backwards. 

Fringe “religions” (veganism?) raise interesting problems for accommodation requests

Like most medical facilities, Cincinnati Children’s Hospital appears to require that all of its employees receive an annual flu shot. It fired Sakile Chenzira, a customer service representative, for refusing to comply. Chenzira sued, claiming that because the flu vaccine contains eggs the requirement violated her religion—veganism—which prohibits the ingestion of any animals or animal by-products.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 12/27/12) [pdf], the federal court denied the hospital’s motion to dismiss the religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation.

In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

In other words, the court punted. It allowed the parties to test in discovery whether Chenzira’s veganism rises to the level of a sincerely held religious belief. For what it’s worth, the lone other case I could find that discussed whether veganism is a religion worthy of protection under employment discrimination laws—Friedman v. Southern Cal. Permanente Med. Group (Cal. Ct. App. 9/24/02)—concluded that veganism is not a religion, but a personal philosophy and way of life.

This case raises an interesting question—how far should businesses go to accommodate employees’ requests for special treatment. I cover this issue in depth in The Employer Bill of Rights: A Manager’s Guide to Workplace Law, concluding, “Sometimes, the path of least resistance makes sense.”

For a hospital, there may not be a path of least resistance when comes to public health issues such as flu vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Probably. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Possibly.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How your incorporate those other factors into your accommodation decision-making is often more important than simply answering the legal question.

[Hat tips: The Employer Handbook Blog, Employment & Labor Insider, and Jottings by an Employer’s Lawyer]

WIRTW #255 (the “back to the future” edition)

This week’s “WIRTW” is all about looking ahead. On Wednesday, I shared the one New Year’s resolution all employers should make for 2013. This week, some of my blogging brethren also shared their thoughts on resolutions employers should make for the coming year.

• 2013 New Years’ Resolutions for Employers — from Tim Eavenson’s Current Employment
• Countdown to 2013: Five Key Predictions for the Future Workforce — from EmployerBrief
• Evil Skippy’s Workplace Resolutions for 2013 — from Evil Skippy at Work
• The Top 4 Employment Law Concerns for Small Businesses in 2013 — from CPEhr
• HR Predictions for 2013 — from Mike Haberman’s Omega HR Solutions
• Top Five New Year’s Resolutions for Wage/Hour in 2013! — from Wage & Hour Defense Institute
• HR’s 2013 “To Do” List — from China Gorman
• 6 HR tech resolutions for 2013 — from Technology for HR

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

Discrimination

• With employers like THIS, it's gonna be a busy 2013 for the lawyers — from Eric Meyer’s The Employer Handbook Blog
• Who Says I’m a Girly Man? Doth Sayeth the EEOC — from Molly DiBianca’s Delaware Employment Law Blog
• Company Fires “An Old Penny That Keeps Coming Back?” — from Employment Discrimination Report
• Bad “Business Judgment” is not Discrimination – Veronese v. Lucasfilm — from California Labor and Employment Defense Blog
• Policy for Requesting Medical Info Runs Afoul of ADA, Says EEOC — from The Proactive Employer Blog
• Critics are Unfairly Attacking the Iowa Supreme Court's Sex Discrimination Ruling in Nelson v. Knight — from Iowa Employment Law Blog
• The EEOC’s Strategic Enforcement Plan for 2013 — from Warren & Associates Blog

Social Media & Workplace Technology

• Should C-suites and Boards of Directors be Exempt from Social Media Training? — from Social Media Today
• BYOD: It’s Way Ahead of the Law, But You Need a Policy — from HR Daily Advisor
• Someone sent a dirty email from my work account — but it wasn’t me! — from Ask a Manager
• Defining who speaks for a company and when important in age of social media — from The Shreveport Times
• Six states outlaw employer snooping on Facebook — from CNET

HR & Employee Relations

• Is There Room for Humanity in HR? — from We Know Next
• President Obama Signs Trade Secrets Clarification Act and House of Representatives Considers Enhancing Economic Espionage Act Penalties — from Trading Secrets
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Part I and Part II — from The Emplawyerologist
• 6 Action Steps When Confronting Employee Theft — from i-Sight Investigation Software Blog

Wage & Hour

• My coworker is working off the clock — from Evil HR Lady, Suzanne Lucas
• 2 Recent Cases Draw Distinction Between Volunteers and Employees — from Overtime Law Blog

Labor Relations

• NLRB Continues to Assert Its Influence Over Non-Union Employees — from Labor Relations Counsel
• National Labor Relations Board Rules Employers Must Bargain With Union Representatives Over Discretionary Discipline — from Labor Relations Today

Lactation rights case teaches valuable lesson on responding to employee complaints

Believing that her employer, Roche Surety & Casualty Co., had deprived her of her right under the Fair Labor Standards Act for a time and place to express breast milk, Danielle Miller put her request in writing via an email to her supervisor. She claimed that the company retaliated against her after she emailed her supervisor with her request. That email stated:

Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.

In Miller v. Roche Surety & Casualty Co. (11th Cir. 12/26/12) [pdf], the appellate court concluded that Miller had not filed a complaint sufficient to raise the protections of the FLSA’s anti-retaliation provision:

Although the filing of a complaint … need not be in the form of an official complaint, … or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance….

Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism. Miller decided to express breast milk in her office without notifying any Roche supervisors. She did not complain or ask for a different location….

This case appears to have been an easy call for the 11th Circuit, since no one could possible interpret Miller’s email as a complaint. Nevertheless, this case teaches employers an important lesson: respond when an employee raises an issue, no matter how silly or trivial it may seem. Although the opinion is vague, it is safe to assume that the genesis of Miller’s lawsuit was a lack of any response to her email. Could this company have staved off a lawsuit by a simple reply to the email? Next time an employee communicates an issue with you, think about whether it is worth the risk to let the concern go un-addressed.

[Hat tip: Wage & Hour Law Update and Joe’s HR & Benefits Blog]

Your New Year’s resolution: draft a social media policy

Recently, Proskauer Rose published the results of its second survey covering social media in the workplace. Social Media in the Workplace Around the World 2.0 [pdf] questioned 250 multinational businesses on their social media policies and practices.

The results?

• 75 percent of businesses reported using social media for business purposes
• 77 percent permit at least some employee to access social media sites at work for non-business purposes,
• 69 percent have a social media policy,
• 46 percent have a social media policy that covers on-duty and off-duty activities.
• 33 percent their employees on the appropriate use of social media.

Employers, here is your New Year’s Resolution for 2013—draft a social media policy and train your employees on what it means.

Social media is still novel. Most of your employees do not understand how their off-duty online activities can impact their jobs. If you want to hold your employees accountable for what they say and do online both at work and outside of work, establish expectations. Put it in writing and explain to your employees what the policy means. That way, if you have to take action against an employee for something he or she says online, no one has any excuses.

According to a recent study, 88 percent of New Year’s resolutions fail. Strive to be among the minority that succeed in keeping their resolutions. Your employees will thank you.

Happy New Year!

Best of 2012: Numbers 2 and 1

The last day of 2012 brings my year-end countdown to a close. Here are my two favorite posts of the past year.

2. How to avoid your organization’s muppet manifesto

1. A letter to the NLRB on its latest position against confidential workplace investigations

Best of 2012: Numbers 4 and 3

Today, numbers 3 and 4 on the countdown.

4. New pregnancy legislation is unneeded; the law already requires accommodation of expecting employees

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

Best of 2012: Numbers 6 and 5

My year-end countdown continues with the my number 5 and 6 favorite posts of the year.

6. Even terminations over “genitalia sandwiches” can generate lawsuits

5. Does your social media policy educate about being “profersonal?”

Best of 2012: Numbers 8 and 7

Let’s continue our walk through my favorite posts of the past year.

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

7. Don’t forget these 5 security issues in your BYOD policy

Best of 2012: Numbers 10 and 9

Today, I start my annual year-end countdown of the year’s top posts. In years past, I’ve done the 10 most important issues and the 10 most popular posts based on page views. This year, I ‘m simply using my 10 favorite posts from the past year. Enjoy my nostalgic walk down memory lane.

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

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

WIRTW #254 (the “until the end of the world” edition)

Today is December 21, 2012, which, according to the Mayans, is the day the world ends. Or, it’s the day that they simply stopping counting days on their calendar. Or, it’s entirely a coincidence.

Either way, one thing will end today for certain— my original posts for the year. As I’ve done in years past, on Monday I will start counting down my top 10 posts of the past year, two per day through December 31. I’ll be back on January 2, 2013, with fresh content. Please have a happy, healthy, and safe holiday.

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Today is the last day to vote for the ABA Journal Blawg 100. If you’ve voted, thank you. If you haven’t, what are you waiting for?

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

Discrimination

• Does the law require transfers for employees seeking medical treatment? — from Eric Meyer’s The Employer Handbook Blog
• The right way to handle a request for a religious accommodation — from Warren & Associates Blog
• Can Volunteers Sue For Discrimination? — from LE Blog
• Does Ho Ho Ho = Prostitutes? — from Evil Skippy at Work
• Can You Withhold Severance To An Employee Who Files An EEOC Charge? — from Employment Discrimination Report

Social Media & Workplace Technology

• Enforcing an Unwritten Social-Media Policy — from Molly DiBianca’s Delaware Employment Law Blog
• Internet Defamation Claims on the Rise as Online Reviews Impact the Bottom Line — from netWORKed Lawyers
• Fired for What!? - Defending Her Hair on Facebook — from Phil Miles’s Lawffice Space
• Twitter now has more than 200 million active monthly users — from The Verge
• The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) — from Electronic Discovery Law
• Like or dislike? Social media profiles and employer access — from Technology for HR
• 5 pitfalls to avoid when responding to rogue employees — from Ragan.com

HR & Employee Relations

• My boss says I smell bad from Evil HR Lady, Suzanne Lucas
• Would You Enforce Workplace Policy If You Had to Follow Them? — from Blogging4Jobs
• An Employer’s Opinion on How To Quit Your Job — from Lifehacker
• How to Prevent/Deal With Employee Theft in the Workplace – Part 1 — from i-Sight Investigation Software Blog
• Medical Device Industry Remains a Hotbed for NonCompete Litigation — from Trade Secrets & Non-Compete Blog
• How Not to Unwittingly Reveal Company Secrets — from Harvard Business Review
• Confidentiality Clauses in Employment Agreements: Who’s Minding the Store, Conclusion — from The Emplawyerologist
• Holidays in the workplace: Listen to Bad Santa, and do precisely the opposite — from Robin Shea’s Employment and Labor Insider
• Letter to the Editor, Cleveland Plain Dealer on Background Checks Story — from employeescreenIQ Blog

Wage & Hour

• A Recent Off-The-Clock Case Should Not Breed Complacency — from Wage and Hour Laws Blog
• Independent contractor or employee? — from EmployerLINC

Labor Relations

• Libertarians and right to work laws — from Walter Olson’s Overlawyered
• Right-to-Work or Wrong-to-Work? Why the Michigan Vote Makes Sense — from Tim Sackett at TLNT
• Hell Freezes Over: Michigan is Right-to-Work — from Labor Relations Institute

Happy Holidays.

The NLRB’s holiday gift: a Facebook firing decision

Earlier today, I suggested that the appropriate gift on the 5th day of Employment Law Christmas is 5 Facebook firings. Today, the NLRB made good on this suggestion by publishing its decision in Hispanics United of Buffalo [pdf].

Hispanics United concerned the terminations of five employees on the heels of a Facebook discussion critical of another employee’s job performance. Last year, the Administrative Law Judge ruled that the terminations violated the non-union employees’ rights to engage in the protected concerted activity.

The NLRB affirmed the earlier decision.

There should be no question that the activity engaged in by the five employees was concerted for the “purpose of mutual aid or protection” as required by Section 7. As set forth in her initial Facebook post, Cole-Rivera alerted fellow employees of another employee’s complaint that they “don’t help our clients enough,” stated that she “about had it” with the complaints, and solicited her coworkers’ views about this criticism. By responding to this solicitation with comments of protest, Cole-Rivera’s four coworkers made common cause with her, and, together, their actions were concerted …, because they were undertaken “with … other employees.” … The actions of the five employees were also concerted … because, as the judge found, they “were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management.” …

The Facebook comments here fall well within the Act’s protection. The Board has long held that Section 7 protects employee discussions about their job performance, and the Facebook comments plainly centered on that subject. As discussed, the employees were directly responding to allegations they were providing substandard service to the Respondent’s clients. Given the negative impact such criticisms could have on their employment, the five employees were clearly engaged in protected activity in mutual aid of each other’s defense to those criticisms.

This case clarifies a two key points for employers.

     1. Employees can engage in protected concerted activity even if their online conversations take place off-duty and via their own computers.

     2. The employer argued that the employees’ Facebook posts lost any protections because they were a form or harassment or bullying in violation of company policy. The Board did not buy that argument, concluding that the National Labor Relations Act trumps any workplace bullying or harassment policy. It did, however, leave open the possibility that objectively and subjectively illegal harassment (that which is on the basis of “race, color, sex, religion, national origin, age, disability, veteran status, or other prohibited basis”) would strip the employees’ comments of their protected status.

The 12 Days of Employment Law Christmas

Since the holidays are almost upon us, and the news is a little slow, I thought I’d have a little fun. So I wrote a song. For your listening pleasure (you have to sing yourself; trust me, there’s no pleasure if I do it for you), I present The 12 Days of Employment Law Christmas.

(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Happy holidays!