Customer preference does not protect employers from race discrimination claims

CNN reports that a Flint, Michigan, nurse is suing her hospitalbecause it kowtowed to a man’s request that no African-American employees care for his baby. The lawsuit [pdf] outlines her key allegations:

     11. The father told the Charge Nurse that he did not want any African Americans taking care of his baby. While telling the Charge Nurse, he pulled up his sleeve and showed some type of tattoo which was believed to be a swastika of some kind.

     12. After the father made the discriminatory request to not allow African Americans to take care of his baby, instead of flatly denying the request, the Charge Nurse called the Nurse Manager, Defendant Osika.

     13. Defendant Osika told the Charge Nurse, Herholz, to re-assign the baby to another nurse and to advise Plaintiff that Defendant Osika, would speak to her supervisor and take care of it the next day.

     14. Plaintiff was re-assigned on or about October 31, 2012 because she is African American….

     19. When Plaintiff reported to her work, she learned that during that day there was a note prominently posted on the assignment clipboard that read as follows: “NO AFRICAN AMERICAN NURSE TO TAKE CARE OF BABY.” Plaintiff was shown a picture of the note.

Let’s make this as clear as possible. Adhering to the request of a customer is not a defense to a race discrimination claim. As one court succinctly stated : “It is now widely accepted that a company’s desire to cater to the perceived racial preferences of its customers is not a defense under Title VII for treating employees differently based on race.” (Note that the same might not hold true for a customer preference based on gender, because employers can claim a bona fide occupational qualification as a defense to a sex discrimination claim).

If you find yourself in a position of having to face down a customer making such a request, take a stand. Tell the customer, “We don’t treat our employees like that, and if you can’t deal, we don’t need your business.” Be the better corporate citizen. It’s not just the legal way to act, it’s the moral way to act.

Of storks and honesty—avoid shifting reasons when defending an employment decision

“Norah doesn’t want to have babies when she’s older because she doesn’t want them cut out of her belly.” This is what my wife reports our six-year-old daughter told her a few weeks ago.

“I told her,” my wife continues,” that they don’t always have to cut them out of your belly. Sometimes, babies come out through your private parts.” Then she tells my daughter to leave it at that until she’s older. Norah,  curiosity apparently sated, hasn’t brought it up since.

My response: “What’s wrong with the stork?”

“I don’t want to lie to her,” my wife retorts.

“Santa Claus, Easter Bunny, Tooth Fairy … Stork. We lie to her all the time about these things. What’s wrong with the stork?!”

As it turns out, my wife is right (don’t let her read this; I’ll never hear the end of it). When we are caught in a lie, we lose credibility. And when we lose credibility, we are not trusted on the important stuff.

Case in point—Jones & Carter, Inc., which the National Labor Relations Board decided earlier this month. In that case, the Board found that the charged employer had unlawfully fired an employee for discussing salaries with coworkers. In and of itself, this case is not newsworthy. As the November 26, 2012, opinion of the Administrative Law Judge in the same case [pdf] pointed out in ruling for the terminated employee:

The Board has long held that an employer cannot lawfully prohibit employees from discussing matters such as their pay raises, rates of pay, and perceived inequities. Accordingly, when an employer forbids employees from discussing their wages among themselves without establishing a substantial and legitimate business justification for its policy, the employer violates the Act.

Pay attention, however, to why the ALJ and the NLRB ruled in the employee’s favor. They ruled for the employee because the employer lied about the reason for the termination:

Williams [the HR manager] and Cotton [the chief operating officer] gave markedly different testimony at the [unemployment] hearing as compared to their testimony in these proceedings. During the hearing before the Board, both Williams and Cotton maintained that Teare was terminated for harassing Janik rather than for discussing salary information. During the [unemployment] hearing, however, both Williams and Cotton asserted that Teare’s discharge resulted from her violation of Respondent’s confidentiality policy…. [A]n employer’s shifting reasons for discharge may provide evidence of an unlawful motivation.

It’s trite to say honesty is the best policy. But, when defending an employment case, honesty and consistency are essential. And, if you can’t be honest because the honest reason is illegal, then maybe you should consider biting the bullet and settling.

photo credit: Enokson via photopin cc

Obsessing (compulsively) over reasonable accommodations

I grew up with a guy who really liked the Presidents of the United States (the actual Presidents, not the 90s alt-rock band). He was so fond of them, in fact, that he had a complete collection of presidential figurines in his bedroom. He kept them in chronological order, in perfectly straight rows, on his dresser. And he instinctively knew if you moved one out of line. He’d swoop in and fix it almost as quickly as one could say “John Adams.”

As far as I know, this person did not have obsessive-compulsive disorder. But, what if he did, and he what if he worked for you? Would you have to accommodate this employee’s OCD, and if so, how?

The first question is the easy one to answer. Under the ADA’s liberal definition of disability, OCD is almost certainly a covered mental disability.

The second question, however, is trickier. If the OCD inhibits the employee’s ability to perform the essential functions or his or her job, then, yes, you have to make a reasonable accommodation, but only if you can do so in way that will enable the employee to perform those affected essential functions.

In other words, it depends. Consider these two examples—

• In Earl v. Mervyns, Inc. (11th Cir. 2000), the plaintiff, a retail manager, claimed that his OCD prevented him from arriving to work on time in the morning. The court agreed with the employer that punctuality was an essential function of his position, and concluded that no accommodation would meet the needs of his OCD. Thus, the court deemed the plaintiff “not qualified” under the ADA and upheld the dismissal of his disability discrimination claim.

• Yet, in Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001), the court concluded that the employer failed to consider whether either a leave of absence or telecommuting arrangement would have enabled the plaintiff, a medical records transcriber, to perform her job with her OCD.

The lesson here is not so much about accommodating OCD as an ADA-covered disability, but a broader lesson about handling any disability in the workplace. You need to have a dialogue with an employee about reasonable accommodations. Without opening the channels of communication, you will never know what is feasible. More importantly, without the dialogue, you probably have not satisfied your obligations under the ADA. As the court in Humphrey correctly pointed out:

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations…. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees…. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible….

Moreover, … the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.

In other words, talk with the employee. You’d be surprised how many employment problems you could head off with an earnest and open conversation.

Until tomorrow…

WIRTW #261 (the “lonely hearts club” edition)

Since this is Valentine’s week, I thought I’d share of the best “workplace romance” themed posts I read this week:

• Don’t Break Hearts When Drafting Your Company’s Policy for Office Romance — from Workplace Insights
• Sexual Harassment and “Love Contracts” — Office Romance to Paperwork! — from WinWinHR
• Happy Valentine's Day, 70% Of Office Romances Fail — from Workplace Diva
• Managing Workplace Romance...Or Not? — from ERC Insights Blog
• Surprising Findings Revealed in New Survey on Workplace Dating Habits — from EmployerBrief
• Valentine’s Day Lesson: Why Office Relationships Are Self-Destructive — from TLNT
• Office Romances – Is Love in The Air – In-House? — from InhouseBlog

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

• EEOC Seeks Recommendations for Future Investigations and Conciliations Quality Control Plan — from Washington D.C. Employment Law Update
• Civil Rights Commissioner Takes Exception to EEOC Background Check Rules — from Nick Fishman at employeescreenIQ Blog
• The EEOC on Lesbian/Gay Employees and Sex Discrimination — from Workplace Prof Blog

Social Media & Workplace Technology

• Internet-prompted firings: Are they lose-lose for employers? — from Technology for HR
• 8 Tips to Prevent a Social Media Meltdown — from Evil HR Lady, Suzanne Lucas
• Why You Can't Delete Your Way Out of Your Social Media Mess — from Employer Law Report
• Damning E-mails: Can We Talk? — from The D & O Diary

HR & Employee Relations

• HARASSED: Why You Need to Add These Text Exchanges to Whatever Harassment Training You Do — from The HR Capitalist, Kris Dunn
• Implementing a dog-friendly workplace policy — from Employment Law Bits
• Does the Pope Get Severance Pay? — from Blogging4Jobs
• Your New Dress Code Policy Should Include a “No Side Boob” Clause — from KnowHR Blog

Wage & Hour

• Going Gaga over the Not-So-Little Overtime Monster — from Molly DiBianca’s Delaware Employment Law Blog
• Swag bag message to NY Fashion Week attendees: “Pay Your Interns” — from Minding the Workplace
• 20 Years After FMLA, What's Changed and What Hasn't? — from Harvard Business Review
• Toasting 20 Years of FMLA — from SHRM Blog
• New FMLA Regulations Effective Now — from Mike Haberman’s Omega HR Solutions
• Maternity, paternity leave and ‘sensitive situation’ bring up FMLA questions — from HR Hero Line
• Keep an eye out for a new paid-sick-leave bill in Congress — from Eric Meyer’s The Employer Handbook Blog
• Connecticut’s Paid Sick Leave (PSL) Law: Does It Work? — from Dan Schwartz’s Connecticut Employment Law Blog

Labor Relations

• President Obama Re-nominates Block and Griffin to the NLRB — from Labor Relations Today
• If At First You Don’t Succeed… — from LaborPains

 

photo credit: SunnySideUpStudio via photopin cc

We ♥ our phones, but should employees be paid for using them off-duty?

True confession time. I have a Pavlovian response to the new message chime on my iPhone. I can’t help myself. When my phone beeps, I reach for it. I have no choice.

I’m an exempt employee, which means that I am paid a weekly salary, with no eligibility for overtime, regardless of how many hours I work per week. What, however, if I was non-exempt? Could I be owed overtime for my Pavlovian email checking?

Three and a half years ago, I asked, “Lawsuits over off-the-clock smart phone use ask, “What is work?” Last month, one federal court provided us the beginning of an answer.

In Allen v. City of Chicago, a police sergeant filed a collective action on behalf of himself and all similarly situated employees for the city’s failure to pay overtime for time spent outside of work reading and responding to emails on their city-issued Blackberries. According to the plaintiff:

All of the depositions taken to date reveal a workforce… that is expected to be available twenty-four [hours] per day via Blackberry. All of the deponents receive and respond to an onerous amount of email and telephone calls on a daily basis. All deponents felt obligated to respond to these email communications and telephone calls while off duty. Regrettably, a culture has developed where police officers feel compelled to work for free in order to possibly gain a promotion and/or maintain their coveted assignment in a specialized unit.

The district court conditionally certified the collective action:

[W]hile the amount of overtime officers spent on their department-issued BlackBerries may have varied, the policy that allegedly violated the FLSA did not vary: the policy of not granting overtime compensation for off-duty work on BlackBerries…. At the first stage, despite the potential variations in or de minimis use of the department-issued BlackBerries, the Court can “envision a scenario” where the Plaintiffs  and potential class members are similarly situated.

A few points to make—

1. This opinion is not a decision on the ultimate issue of whether the employees are owed overtime for their off-the-clock use of their mobile devices. It is a conditional certification of a collective action based on a low threshold showing of similarity. We will have to wait and see how the court handles the central legal issue, whether reading and replying to work emails off the clock is compensable “work” under the FLSA.

2. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

3. In reporting on the opinion, The Huffington Post quotes the plaintiffs’ lawyer, “Everybody can relate to this because people are being asked all the time these days to work for free and they are being told to work for free using their phones.” In other words, these claims are dangerous. If you require non-exempt employees to be available by email 24/7, then you are potentially exposed. To protect yourself, let your non-exempt employees go off the clock. If you provide them mobile devices, or let them BYOD and connect them to your network, have a written policy that tells them they are not required to read or reply to emails after hours. Create a culture that lets your employees escape from work while not at work. You cannot prevent a wage and hour lawsuit raising these issues from being filed against you, but you can position yourself to present the best defense possible, and (hopefully) head off the defense of an expensive class or collective action.

Happy ADEA Day (to me). Now let’s rewrite the age discrimination laws.

I’m a white male, which means I’ve spent my entire life unprotected by the various civil rights laws to which I’ve devoted my career. Yes, I’m Jewish, but the legal profession isn’t known for its mistreatment of Jews. In other words, I’ve been exposed and unprotected for the first 40 years of my life.

All that changes today. Today, I turn 40. Today, I fall under the generous protections of the age discrimination laws.

The thing is, I don’t feel old; I feel young. I have young kids (6 and 4). I still watch cartoons and play video games. Alt Nation is my go-to channel on Sirius. My back only hurts some of the time.

Scientists say 40 is the new 30. If that’s the case, then why does the law protect 40 as age discrimination? If 40 is the new 30, then 50 is the new 40.

Today, to mark the ruby anniversary of my birth, I am starting a movement to change the protections of age discrimination laws from age 40 to age 50. If I can’t get cheap AARP hotel rooms for another 10 years, then I shouldn’t be able to claim age discrimination either. I am willing to give up my newly found protected status for an age cutoff that makes sense.

Now, I’m heading outside to yell at those kids to get off my lawn.

photo credit: Beautification Syndrome via photopin cc

BREAKING: FMLA compliance is not as easy as the DOL says [poll results]

In celebration of the FMLA’s 20th anniversary, the Department of Labor released the results of a survey of employers on their experiences managing the statute. According to the DOL, “employers generally find it easy to comply with the law, and … the vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations….”

That conclusion sounded so out of touch with reality that I decided to run my own (not so scientific) poll. I asked one simple question:

How difficult has it been for your company to comply with the FMLA?

200 responded (thanks to Jeff Nowak, the Evil HR Lady, and Robin Shea for the link-love). The results are not pretty for the DOL’s credibility. Not so surprisingly, my poll reached the exact opposite conclusion.

• Only 9.5 percent of respondents report that the FMLA compliance is very easy or somewhat easy.
• Conversely, a whopping 68 percent report that FMLA compliance is very difficult or somewhat difficult.

The complete results—

Very difficult	20.5 %
Somewhat difficult	47.5 %
Average difficulty	22.5 %
Somewhat easy	6.5 %
Very easy	3 %

What do these resultsmean? It means that either the DOL found the only sample of employers in the country who have no issues managing FMLA compliance, or the DOL put so much spin on its survey results that its conclusions are not credible. Do I need to tell you that I think it’s the latter?

I am saddened by the DOL’s apparent chicanery. These tactics do not help raise FMLA awareness; they lower the DOL’s credibility. It is no secret that (1) the United States lags behind the rest of world in workplace leave rights; and (2) the FMLA’s mission is noble, albeit one that poses an administrative nightmare for conscientious employers. Surveys that rob the DOL of its credibility in enforcing this statute do not help employers comply with this law. Instead of creating surveys that mislead everyone into thinking that the FMLA is working, the DOL should recognize that FMLA compliance is difficult and put its resources into helping employers meet its complex maze of requirements.

Laughing out the door: half of employees admit to stealing corporate data

Do you worry about the information, data, and other property your employees are taking with them after a resignation or termination? If you believe the results of a recent survey conducted by Symantec, if you’re not worried, you should be.

According to the survey, half of employees who left or lost their jobs in the last 12 months kept confidential corporate data, and 40 percent plan to use it in their new jobs. The results are jarring:

• 62 percent of employees believe that it is acceptable to transfer work documents to personal computers, tablets, smartphones, or into the cloud, and most never delete the data they’ve moved.
• 56 percent see nothing wrong with using a competitor’s trade secrets.
• Given the example of a software developer who develops source code for a company, 44 percent believe the employee has some ownership in the work and inventions.
• 51 percent think it is acceptable to take corporate data because their company does not strictly enforce policies.

Based on these results, Symantec makes the following three recommendations for companies hoping to shore up their data:

• Employee education: Organizations need to let their employees know that taking confidential information is wrong. IP theft awareness should be integral to security awareness training.

• Enforce non-disclosure agreements (NDAs): In almost half of insider theft cases, the organization had IP agreements with the employee, which indicates the existence of a policy alone—without employee comprehension and effective enforcement—is ineffective¹. Include stronger, more specific language in employment agreements and ensure exit interviews include focused conversations around employees' continued responsibility to protect confidential information and return all company information and property (wherever stored). Make sure employees are aware that policy violations will be enforced and that theft of company information will have negative consequences to them and their future employer.

• Monitoring technology: Implement a data protection policy that monitors inappropriate access and use of IP and automatically notifies employees of violations, which increases security awareness and deters theft.

Of these three, the enforcement of agreements and other legal rights against the theft of confidential information and other corporate data is the most effective. Companies do not like litigation—it’s expensive, time consuming, and uncertain. Yet, when your intellectual and other property is involved, you have no choice. There exists no greater deterrent to copycat misconduct in the future than putting a thief through the legal wringer. Your employees will know that your agreements have teeth and that you will go to mat to enforce them. The hopeful result is that they will think twice about walking out the door with even a promotional pamphlet, keeping your corporate information and other property secure.

WIRTW #260 (the “award season” edition)

It’s award season. The Grammys are this weekend, and the Oscars a few weeks later. About.com is also handing out some awards, albeit a lot less glamorously. The web portal is giving out its Human Resources Readers’ Choice Awards. It is asking people to nominate their favorite HR websites in various categories, including Best Site for HR Legal Information.

The nomination process is open until 11 p.m. EST on February 11. If there is an employment law blog you enjoy reading, its proprietor would appreciate your vote (even if it’s not me).

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

Discrimination

• The EEOC on Lesbian/Gay Employees and Sex Discrimination — from Workplace Prof Blog
• I Believe, I Believe! A Vegan and a Flu Shot — from Molly DiBianca’s Delaware Employment Law Blog
• The interactive process under the ADA: Informal? — from John Holmquist’s Michigan Employment Law Connection
• Can A Female Prison Guard Sue Prison Officials For Sexual Harassment By Inmates Who Were Allowed To Watch Violent and Sexually Explicit Movies? — from Employment Discrimination Report
• Think Employment Law Doesn’t Apply to You? Think Again. — from Evil HR Lady, Suzanne Lucas
• Case of Borat Discrimination for Make Benefit Glorious Resources of Humans — from The Employer Handbook Blog
• Top 6 Reasons Why Discrimination Laws Are Good For White Guys — from Donna Ballman’s Screw You Guys, I'm Going Home

Social Media & Workplace Technology

• Your employees’ Facebook opinions – do they bring you into disrepute? — from WorkFace
• Watch What You Tweet: Proposed Social Media Guidance for Financial Institutions — from Socially Aware Blog
• Social media for lawyers : Is it hype or plain common sense? — from Real Lawyers Have Blogs

HR & Employee Relations

• Severance Agreements: Parting is Such Sweet Sorrow? Part I — from The Emplawyerologist
• Wishing You Workplace Civility In 2013 — from BLEG Blog
• 10 Steps To Take When Hiring From A Competitor — from Trade Secrets and Noncompete Blog
• How Many Hours Do You Work per Week (and How Much Is Too Much)? — from Lifehacker
• Having a Plan When Terminating an Employee Minimizes Risk — from Minnesota Labor & Employment Law Blog
• Disgruntled employee spends three years destroying company computers with cleaning supplies — from The Verge

Wage & Hour

• Seventh Circuit Raises The Bar On Collective And Class Certification of Wage-Hour Claims — from The Wage and Hour Litigation Blog
• The Death of FLSA Class Actions Has Been Greatly Exaggerated — from Tim Eavenson’s Current Employment
• What you need to know about sick employees, time off, and paying them — from Employment Law Bits
• The Seven Reasons You Can Dock an Exempt Employee — from Mike Haberman’s Omega HR Solutions
• DOL issues Final Rule on FMLA to address military, aviation amendments … and other things — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Why the DC Circuit's NLRB Recess Appointments Decision Affects (Almost) Everyone — from Phil Miles’s Lawffice Space
• Should Private Employers Still Worry About Unions and What Happens at the NLRB? — from Dan Schwartz’s Connecticut Employment Law Blog
• Labor Relations Today Releases 'Labor Law 2012: A Year in Review' — from Labor Relations Today
• Union violence and legal impunity — from Walter Olson’s Overlawyered

Employer Bill of Rights is (finally) available for Kindle

It took a little head bashing of the fine folks at Amazon, but The Employer Bill of Rights is finally available for download onto your Kindle.

If you’re keeping track, the book is available in the following formats:

• Paperback via Amazon
• Paperback via Barnes & Noble
• Download for Kindle
• Download for iBooks
• Download for Nook
• Download as an eBook directly from the publisher

Thanks to everyone who has purchased so far, and for the kind words I’ve received from those who’ve read the book. Now, on to the best seller list…

Workplace social media policies must account for generational issues

Cisco recently interviewed 3,600 Gen Y College students and workers between the ages of 18 and 30. The purpose of the survey was to gauge the influence of social media, mobile devices, and the Internet on that generation’s job choices. The results (via Gen Y Hub) say a lot about how companies should be managing the divergent expectations of different generations in the workplace.

• 2 out of every 3 college students will ask a prospective employer about its social media policy during a job interview.
• If a company bans the access of social media in the workplace, 56 percent either will not accept a job or will ignore the policy.
• 1 out of every 3 value social media freedom over salary.
• Approximately 70 percent believe that corporate devices should also be used to access personal social media accounts.

Generational issues might be the most important interpersonal aspect of managing social media in the workplace. Yet, this issue is rarely discussed. Each generation has a very different idea both about the role of technology in their daily lives, and the impact of technology on their concepts of personal privacy. A policy that only recognizes the interests of one generation will chase away the others. Take the time to craft a workplace technology program that properly accounts for the divergent ideas of Boomers, X-ers, and Y-ers.

This post originally appeared on The Legal Workplace Blog.

The revolution WILL be televised … Shore up your social media before a termination

Last week, music retailer HMV laid off 190 employees. One of the affected, a former HR employee, hijacked the company's Twitter account and live-tweeted what he described as the “Mass execution, of loyal employees who love the brand. #hmvXFactorFiring ”

In addition to everything else companies have to worry about when terminating employees (lawsuits, sabotage, theft of confidential information, low morale), companies now also have to worry about the maintenance of their public image via social media.

We live in a world in which the walls of privacy are not-so-slowly eroding. Nothing can damage a company’s reputation more quickly than a viral campaign. We no longer have to worry about employees merely discussing the nitty-gritty of a termination. Today, we have to worry about our employees broadcasting it to the entire world in 140 character insta-bursts. And, there’s not much you can do about it after the fact. Once the information is out, it’s out. HMV deleted the tweets, but all it took was one person to “print screen,” and the next thing you know bloggers around the world are republishing the information it tried to hide.

While there is not much you do after the fact, there is one thing you can do before the fact. If you are concerned about employees live-tweeting a termination or a mass layoff, disable their access to your social media channels before you tell them. Change their passwords. Remove their logins. Is there a chance they’ll figure out something is afoot before you officially communicate the termination? Absolutely. Does the harm to your business from that risk pale in comparison to the viral harm you will suffer if said employees hijack your official social media channels? You bet.

DOL: Employers find it easy to comply with the FMLA. What?!?! [poll]

Twenty year ago today, President Clinton signed the Family and Medical Leave Act into law. To commemorate this anniversary, the Department of Labor has released the results of a survey of employers on the status of this law.

According to the DOL:

The study shows that employers generally find it easy to comply with the law, and misuse of the FMLA by workers is rare. The vast majority of employers, 91 percent, report that complying with the FMLA has either no noticeable effect or a positive effect on business operations such as employee absenteeism, turnover and morale.

Did I read that right? Does the DOL really conclude that “employers generally find it easy to comply with the” FMLA? I started practicing law in 1997; I’ve spent my entire career advising employers on the FMLA. I am not aware of any company that finds it “easy to comply with” the FMLA. In fact, most companies whom I have counseled would tell you that FMLA administration is among the most complicated of all HR functions.

Either the DOL found the only 1,649 employers (91 percent of the 1,812 worksites surveyed) who “find it easy to comply with” the FMLA, the DOL is putting some major spin on its survey results, or my read on FMLA administration is way off.

To find out for sure, I’m running my own poll, which asks the question, How difficult has it been for your company to comply with the FMLA?

[Hat tip: Eric Welter]

How do you fight invisible discrimination?

With what seemed like most of Cleveland's western ‘burbs, I spent part of my Sunday afternoon shopping at Costco. My trip not only included the expected bulk items, but also some unexpected bigotry.

Near the samples of mozzarella and pita grilled cheese (delicious), I crossed paths with a family—a father and his two sons—of what appeared to be Arabic descent . The older of the two boys, around age 10, turned to his dad and said:

I got back at that lady who cut me off;
she looked Jewish.

Needless to say, I was stunned, and decided that I couldn’t let the comment go answered. I quietly told the family that I couldn’t stop them from thinking what they want, but they should be careful when and where they express their feelings. They walked away.

In a decade or two, that boy will join the workforce. He could be one of your employees, or, worse, one your managers or supervisors. How do you root out this kind of hatred before it outs itself out in a harassment complaint or discrimination lawsuit? There is no easy answer to this difficult question. Perhaps all we can do is recognize that everyone carries baggage. Some is harmless, and some is hateful. If we foster a workplace of openness and inclusion, when that hatred exposes itself employees will understand that it belongs to a rogue and not your company ,and hopefully, choose not to hold you accountable (provided you respond quickly and decisively when brought to your attention).

WIRTW #259 (the “luddite” edition)

Mozy recently published a list of the 50 Things We Don’t Do Anymore Because of Technological Advancements. It’s weird to think that my kids will never use an encyclopedia to write a last-minute term paper, scour the ground for payphone change because they forget to leave the house with a trusty dime, or dial *69 to figure out which of their friends is pranking us.

Scanning the list, though, I’m proud to say that I’m still a luddite in some key areas:

• Print photographs
• Go into the bank to conduct business
• Remember phone numbers
• Watch DVDs
• Fax documents
• Have a CD collection
• Watch TV shows at the time they are shown
• Try on shoes at the mall
• Buy flowers at a florist
• Buy newspapers

By my count, I’m 20 percent luddite. How do you rank?

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

Discrimination

• Jujitsu in EEOC v. Kaplan — from LaborRelated (and congrats on your new edition)
• The EEOC’s top three of 2012: retaliation, discrimination, and harassment — from Warren & Associates Blog
• 5 Things You Need To Know About Retaliation — from Employment Discrimination Report
• When single employees are “discriminated” against — from Employment Law Bits
• The EEOC on Transgender Employees and Sex Discrimination — from Workplace Prof Blog
• Gender Inequality Claims Make Headlines in Case and in New Study — from Dan Schwartz’s Connecticut Employment Law Blog
• 3d Cir. Issues a Bitchin' Constructive Discharge Decision — from Molly DiBianca’s Delaware Employment Law Blog

Social Media & Workplace Technology

• Do Your Employees BYOD? Here’s How to Reduce the Hassles… — from Hiring & Firing
• Who owns your Twitter followers? — from Evil HR Lady, Suzanne Lucas
• Employee posts “I wish I could get fired” on Facebook. Guess what happened? — from Eric Meyer’s The Employer Handbook Blog
• Should you monitor workers’ electronic communications? — from Technology for HR
• FaceWash Makes Sure Your Facebook Profile Is Clean and Interview-Ready — from Lifehacker

HR & Employee Relations

• Smoking Discrimination — from Texas Employer Handbook
• Employee Takes Too Many Bathroom Breaks — from hr bartender
• Psst… This Is What Your Co-Worker Is Paid — from Rachel Emma Silverman at the Wall Street Journal

Wage & Hour

• Employer’s Bane: Unpredictable FMLA leave. Is there a solution? — from Robin Shea’s Employment and Labor Insider
• Why Must Employers Train Their Managers About the FMLA? Here are 1.2 Million Reasons Why — from Jeff Nowak’s FMLA Insights
• What You Need To Know About RIght-To-Know — from Stephanie Thomas at Compensation Café
• Tell Us How You Misclassify Employees — from Mike Haberman’s Omega HR Solutions
• Former Athletics Department Intern Throws Flag On Hamilton College's Pay Practices — from The Wage and Hour Litigation Blog
• The Dirty Dozen Widely-Believed Myths of Wage/Hour — from HR Daily Advisor
• What Do You Mean I Have To Pay My Nanny Overtime?! — from Wage & Hour Insights

Labor Relations

• The Debate Continues: Recent Eighth Circuit Decision Adds to the Growing Tension between Federal Courts and the NLRB Regarding the Enforceability of Class Action Waivers in Arbitration Agreements — from Employment Class Action Blog
• Remember When “Recess” Meant Fun and Games? The Impact of Canning v. NLRB, and What Employers Need to Know While We Wait and See if the Decision Will Remain Intact — from Employer Law Report
• The NLRB is out of business … maybe — from Blogging4Jobs
• Circuit Court Invalidates President Obama's Purported Recess Appointments to National Labor Relations Board, Finds Lack of Quorum — from Seth Borden’s Labor Relations Today
• Court ruling may nullify rules against firing workers for complaining about their jobs on Facebook — from Boy Genius Report
• Obama Risked Executive Power To Give Labor Its Payback — from LaborPains
• Nonunion employers in the crosshairs — from Idaho Business Review

photo credit: Tony Fischer Photography via photopin cc

What can go wrong when employees date?

Since Valentine’s Day will be fast upon us, I thought I’d take a new look at a popular issue this time of year—the office romance.

Gerald v. University of Puerto Rico (1st Cir. 1/28/13) [pdf] is textbook example of the parade of horribles that can happen when an office romance sours.

During at at out-of-town conference, Dr. Melissa Gerald had a week-long sexual relationship with her supervisor, Dr. Edmundo Kraiselburd. According to Gerald, the affair embarrassed her and she rebuffed Kraiselburd’s pursuits after their return home. Two years passed without incident, after which Gerald alleges three separate incidents of harassment occurred, all within two months of each other: (1) Kraiselburd propositioned Gerald for sex, (2) Kraiselburd grabbed her breast, and (3) Kraiselburd asked her, “What will it take for you to f**k me?”.

The hospital defended against Gerald’s sexual harassment claim by arguing that Gerald often engaged in sexual and off-color banter with Kraiselburd, and therefore invited whatever she received in kind. In reversing the district court’s dismissal of Gerald’s lawsuit, the court of appeals shut down any argument that Gerald had “asked for” the harassment:

We fail to see how an employee telling risqué jokes means that she is amenable to being groped at work. Instead the evidence here was enough, at the very least, to raise a factual question as to whether Kraiselburd’s conduct was unwelcome….

Pointing to the fact that Gerald and Kraiselburd often engaged in off-color banter, the University says the supposed harassment was not severe. We disagree and think a jury could have seen things otherwise. Gerald says Kraiselburd grabbed her breasts, sexually propositioned her, and crassly asked in front of others why she would not have sex with him. The University is not denying these occurrences for summary judgment purposes. These offensive incidents, which involved sexual propositioning and uninvited touching, can reasonably be viewed as severe; and, in the case of the breast grabbing incident, physically threatening (not to mention criminal). Like we have said, it is clear that "behavior like fondling, come-ons, and lewd remarks is often the stuff of hostile work environment claims….”

While this case shows what can go wrong when employees become sexually involved, it is not a reason to ban office romances or trysts. I believe that employees’ business is their business. We expect employees to commit long hours to their jobs, and it is often the case that their only opportunity to socialize is at work. The heart goes where it wants to go, and no workplace rule or policy will stop employees from getting involved with each other.

Instead of banning office romances, companies should reinforce appropriate workplace behavior during harassment avoidance and response training.

• Tell employees that office romances are not prohibited, but that the company expects professional behavior regardless of the personal relationship (past or present) between employees.
• Offer examples, such as the Gerald case, of how to not to behave following a break-up.
• Advise employees that unprofessional behavior following an office relationship is not tolerated, and will lead to discipline, up to and including termination.

Following these simple steps will put you in a position to present the best defense possible to a harassment lawsuit stemming from an office dalliance. It also means that you won’t have to fall back on the “she asked for it” defense, which, as Gerald illustrates, rarely works.

Are employers screwing up the FLSA’s lactation mandate? Probably not.

At Business Insurance, Judy Greenwald quotes an attorney who believes that employers are doing an inadequate job of accommodating employees’ lactation requests. The article discusses a recent Freedom of Information Act request, in which the Department of Labor disclosed that it has conducted 54 investigations into claims of inadequate lactation accommodations between the date the Patient Protection and Affordable Care Act took effect, March 23, 2010, and June 11, 2012. Those investigations, in turn, uncovered 36 violations of the law. Based on that data, the article concludes that “the Labor Department is paying attention to and is prepared to enforce” the FLSA’s lactation mandate, and that “employers either are not aware of their obligations, or do not fully understand them.”

I wholeheartedly disagree. A little more than a year ago, I ran a post on this same issue. At that time, I pointed out that the DOL had only cited 23 companies, or 0.023 percent of all companies with 100 or more employees. Now, with an additional six months of data, the number of citations has jumped by 13, from 23 to 36.

By comparison, according to the EEOC’s recently updated charge filing statistics, individuals filed 99,412 separate discrimination charges during fiscal year 2012. In other words, discrimination complaints with the EEOC in the last year outpaced lactation complaints with the DOL in the last two and a quarter years by a factor of 1,841.

What is the reasonable explanation for this small number of lactation-rights complaints? Companies are not denying new moms the right to lactate in the workplace. Anecdotally, I have never come across the issue with a client in my 15+ years of practice, and I know of no colleague who has either. You would think that if this problem exists, someone would have dealt with it.

Nevertheless, if you are on the fence about your obligations under this provision of the Patient Protection and Affordable Care Act, here is what you should know:

• If you have 50 or more employees, you are required to provide a reasonable break time for an employee to pump breast milk. If you have fewer than 50 employees, you can deny the break time, but only if would pose an undue hardship, which the DOL considers to be a significant difficulty or expense.

• Employers are not required to compensate nursing mothers for breaks taken to expressing milk. The FLSA’s normal rules that govern unpaid versus paid breaks still apply. Thus, a break should be paid if it lasts 20 minutes or less and falls during an employer’s customary break time.

• In addition to adequate break time, an employer must also provide an appropriate lactation space. The space doesn’t have to be permanent. Any space temporarily created or converted into a space for expressing milk or made available when needed by a nursing mother is sufficient, if the space is shielded from view, free from intrusion from coworkers and the public, and suitable for lactation. The only room that is not appropriate is a bathroom.

If you know of a company that has denied an employee the right to lactate, please either leave a comment below, or tweet me. I would like to know if there is any anecdotal support for the idea that companies are dropping the ball on this issue.

But he looked black… Court rebukes EEOC’s use of “race rating” in systemic lawsuit

According to the EEOC’s draft strategic enforcement plan for 2012 – 2016, the agency’s number one enforcement priority is ending systemic discrimination in recruiting and hiring. In EEOC v. Kaplan Higher Learning Edu. Corp. (N.D. Ohio 1/28/13) [pdf], the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. Yesterday, the court dismissed the lawsuit in its entirety, excluding the EEOC’s expert witness and concluding that without that expert, the agency could not prove its case.

To determine the race of a particular applicant considered by Kaplan, the EEOC’s expert witness used “race raters.” It subpoenaed the applicants’ DMV records, and used a panel of five people to determine if the photograph looked  “African-American,” “Asian,” “Hispanic,” “White,” or “Other.” The EEOC’s expert required that four out of the five race raters reach consensus to consider that applicant’s race.

Kaplan challenged that the judgment of these “race raters” was nothing more than guesswork, resulting in inherently unreliable data. In agreeing with Kaplan and dismissing the lawsuit, the court cited at least four different reasons for excluding the EEOC’s expert. It was the last reason, though, that caught my eye:

Plaintiff also presents no evidence that determining race by visual means is generally accepted in the scientific community. In fact, the EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate “only if an employee refuses to self-identify.” … According to the EEOC, it implemented these guidelines not because of the accuracy of visual identification, but to facilitate and respect “individual dignity.” Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race.

In other words, the agency charged with ending racial stereotypes in the workplace based its entire case on stereotypical way in which different races “look.”

If there’s one thing I hate it’s intellectual dishonesty. Whether it’s the EEOC prosecuting a race discrimination case by using “race spotting,” or a Catholic hospital defending a wrongful death suit by arguing that a fetus is not a person because life begins a birth, not conception, intellectual dishonesty is nothing more than the sum of hypocrisy and laziness. I am grateful that we have federal judges in my home district who are willing to call the EEOC on the carpet for this tactic, and I am hopeful that the 6th Circuit will see things the same way when ruling on the inevitable appeal.

Employees, if you don’t want us to get your social media info in discovery, don’t post!

In EEOC v. The Original Honeybaked Ham Co.—a hostile environment sexual harassment brought by the EEOC on behalf of 20 female employees—the federal court compelled the plaintiffs to produce their social media profiles. Donna Ballman, writing at Screw You Guys, I’m Going Home, argues that the court botched this ruling because an order compelling the production of social media information in a sex harassment suit can only lead to an employer arguing that that the plaintiffs “asked for it.” Donna argues:

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, “Cu**” on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can’t be offended when someone else uses it toward them.

Donna’s argument, however, misses the mark. The court did not compel the production of the employees’ social media accounts to bolster a “they asked for it” defense. The court ordered the production because one of the employees “posted on her Facebook account statements that discuss her financial expectations in this lawsuit,” and wrote about “her post-termination employment and income opportunities and financial condition.” She also wrote about other potential causes for any emotional harm (a lost pet), and her positive outlook on life following her termination. Other of the plaintiffs joined in at least some of these posts.

There are two key issues in any case: liability and damages. The court primarily ordered the production of the social media information to permit the employer to build a defense as to the latter. An employee’s financial motivations and emotional well-being are relevant to showing that she has not been harmed to the extent she is claiming, if at all.

Moreover, the court did not compel the free and unfiltered production the employees’ social media accounts. It required an in camera inspection by the court, along with of a forensic special master and detailed questionnaires for each plaintiff to complete concerning their online activities. This case is not an example of a court irresponsibly ordering a prying into plaintiffs’ private lives under the guise of discovery. This court went above and beyond to prevent any unnecessary invasions of privacy while ensuring the employers’ right to gather relevant information.

The bottom line is that social media profiles are a potential treasure trove of information in litigation.  Employees, if you do not want your social media posts to be reviewed in a lawsuit you file, stop posting. Stop writing about your post-termination state of mind. Stop communicating with former co-workers. Stop writing about your lawsuit. And, stop posting photos of yourself wearing a “cu**” t-shirt. If you post, rest assured it will likely be fair game to use against you in the lawsuit you chose to file. As the Honeybaked Ham court reminds us: “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?”

WIRTW #258 (the “imitation is the sincerest form of flattery” edition)

This week, the Connecticut General Assembly (hat tip: Dan Schwartz) introduced Proposed House Bill 5236, which would create an “Employer’s Bill of Rights.” Hey, that sounds kind of familiar. Didn’t someone wrote a whole book called The Employer Bill of Rights?

Representative Kupchick, I’m waiting for my licensing fee. I’m sure the check’s in the mail.

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

Discrimination

• Rethinking Discrimination — from Heather Bussing at HR Examiner
• Fact or Fiction: Your employee's nasty facial scar may be a disability — from Eric Meyer’s The Employer Handbook Blog
• Limits on reemployment rights under USERRA — from EmployerLINC
• Can you terminate an employee covered by USERRA? — from Warren & Associates Blog

Social Media & Workplace Technology

• You Can (Sort Of) Talk Smack About Your Boss Online Now — from Workplace Diva
• Facebook trashing your boss may be OK — from CareerDiva
• The Great Employer/Employee Social Media Passwords Debate — from Jessica Miller-Merrell’s Blogging4Jobs
• How “bring your own cloud” could kill BYOD — from Consumerization Blog

HR & Employee Relations

• Video of Ohio Man Lifting Weights Ends His Workers’ Comp Benefits — from EmployerBrief
• You’re Damned if You Don’t Have the Right Inclement Weather Policy — from damnedif
• Catfishing "Employers" — from Workplace Prof Blog
• Manti Te’o, Notre Dame and the Art of the Crappy HR Investigation — from The HR Capitalist, Kris Dunn
• The Batmobile Employee Handbook Provision — from Employment & the Law
• Four Words the Fair Credit Reporting Act has Class Action Plaintiffs and Their Lawyers Repeating: “Show Me The Money!” — from Employment Class Action Blog

Wage & Hour

• Sex, lawyers, and “independent contractor versus employee” – believe it or not! — from Robin Shea’s Employment and Labor Insider
• DOL Issues Guidance on FMLA for Adult Children — from Phil Miles’s Lawffice Space
• Clarification of FMLA Leave for Children with a Disability — from Jason Shinn’s Michigan Employment Law Advisor
• DOL’s Misclassification Initiative Continues — from Wage & Hour Insights
• “Right to Know” Back On The Table? — from Wage and Hour Laws Blog
• The FLSA's Emergency Exception — from Stephanie Thomas at Compensation Café
• Under Federal Law, Are You Required to Pay Your Employees for Their Breaks or Not? — from Overtime Advisor

Labor Relations

• Another Dizzying Ride on the NLRB Roller Coaster — from Molly DiBianca’s Delaware Employment Law Blog
• The NLRB Hits Just Keep Coming. This Time, Possible Front-Pay — from Trade Secret / Noncompete Blog
• The NLRB Hinders Confidentiality in Nonunion Companies — from Michael Haberman’s Omega HR Solutions
• Union Membership Plummets, According to Today’s Bureau of Labor Statistics Report — from LaborPains