WIRTW #264 (the “never go to work, part 2” edition)

Marissa Meyers and her edict ending telecommuting at Yahoo continues to dominate the headlines. Here are the best articles from around the blogosphere I’ve read on this story this week:

• Why Marissa Mayer’s decision to pull Yahoo employees back to the office was likely the right call — from Boy Genius Report
• Telecommuters, The Boss Still Thinks You’re Mowing the Lawn — from Workplace Diva
• Does Telecommuting Hurt Your Career? — from Evil HR Lady, Suzanne Lucas
• I Love Work from Home — from The Tim Sackett Project
• Year of the Cubicle and the Death of ROWE at Best Buy — from KnowHR Blog
• The Brain at Work and at Home — from Huffington Post
• Don’t worry, the ban on telecommuting won’t become a trend — from Fortune

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

Discrimination

• Law Professor Lambasts Discrimination Laws And The EEOC — from Employment Discrimination Report
• Is Being On Time an Essential Function of Job? Second Circuit Says Most Times But Not Always — from Dan Schwartz’s Connecticut Employment Law Blog
• Random Alcohol Tests Not in Violation of ADA — from ERC Insights Blog
• “Height And Weight” Anti-Discrimination Bill Considered In Utah – Are “Appearance Bias” Laws Far Off? — from Employment Discrimination Report

Social Media & Workplace Technology

• Texas Bill To Allow Service of Process Via Facebook — from Shear on Social Media Law
• Cyberloafing at Work? Maybe It Really Just Shows a Lack of Leadership — from TLNT
• How Lawyers Get Their Hands on “Private” Facebook Posts — from Augmented Legality
• The Social Media Checklist for Companies — What Your Clients Should Do, Know and Learn — from Employment & the Law
• BYOD: Not the Party that BYOB Is — from Mike Haberman’s Omega HR Solutions
• All work and no play? Mobile wipes out 8-hour workday — from USAToday

HR & Employee Relations 

• Keys to ensuring the secrecy of trade secrets — from EmployerLINC
• Saving Lives? We Have a Policy Against That — from Phil Miles’s Lawffice Space
• Ask Your Coworker on a Date Without Getting Fired — from Lifehacker
• Are Workplace Bullies Violating Criminal Stalking Laws? — from Screw You Guys, I’m Going Home

Wage & Hour

• The Interns Are Coming! Is Your Program Complying with Wage and Hour Law? — from BLEG Blog
• Student Externs, Required to Complete Externship in Order to Graduate, Were Not “Employees” — from Overtime Law Blog
• How to pay employees for Daylight Savings Time work — from Eric Meyer’s The Employer Handbook Blog
• 2d Cir: FLSA Does Not Cover Gap Time — from Molly DiBianca’s Delaware Employment Law Blog
• Should Your Employer Pay You For Time Spent Changing Your Clothes? — from Overtime Lawyer Blog
• How Can Congress Improve the FMLA? Let's Count the Ways… — from Jeff Nowak’s FMLA Insights
• It’s time to fix the Family and Medical Leave Act — here are some suggestions. — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Exploited twentysomethings: It’s time for a meetup with the labor movement — from Minding the Workplace
• Chrysler and its employee code of conduct: Next stop—the NLRB? — from John Holmquist’s Michigan Employment Law Connection
• Labor law another victim of partisan politics — from HR Hero Line

Fight or flight? When an employee sues you, should you litigate or settle?

Two weeks ago, the New York Times’s You’re the Boss Blog asked the following question:

How do you handle employee litigation?

Do you dig in your heels and fight, settle, or some combination of the two?

The NYT’s blog post recounted the story of one small business owner who chose to stand his ground and assume the risk of taking an employment case to trial. As a result the employee dropped his settlement demand to a nuisance value, $10,000.

The reality, however, is that there is no easy answer to the question of how your company should respond to a lawsuit by an employee. You must weigh all of the following factors to come to the right decision for your business in each case.

• Is the plaintiff a current or former employee?
• How much can you afford to spend, and will litigation now impede your ability to fund a settlement later?
• Do you have employment practices liability insurance coverage?
• Is there a risk that a settlement will incent other employees to bring claims, or will long, protected litigation deter copycat claims?
• What is your tolerance for the distractions of litigation—responding to discovery, gathering documents, dealing with the hassles of electronic discovery, attending depositions, and attending court dates?
• Do you want to subject your managers, supervisors, and other employees to depositions?
• What is the reputation of the plaintiff’s attorney—is s/he going to make the case more difficult and expensive than necessary?
• What is the likelihood the assigned judge will grant a summary judgment motion and dismiss the case?
• How tight or loose are juries in your jurisdiction?

How you answer these question will dictate whether you litigate or offer a settlement, and, if it’s the latter, when you make that offer. Keep in mind, however, that even if you choose to offer a settlement, no case resolves without two willing parties. If the other side is not willing to meet you at a fair and reasonable value for the claim, then the choice has been made for you, lest you become an easy mark for every disgruntled employee.

This post originally appeared on The Legal Workplace Blog.

Who's the "knucklehead?" Employee loses retaliation claim after slurring co-worker

The original "knucklehead"

Noreen Wilson worked as a pharmacist for The Cleveland Clinic. From August 24 through November 4, 2010, she racked up three corrective actions -- the first for calling a coworker a "knucklehead," the second for sending an improper email to a job applicant, and the third for disconnecting a telephone while a coworker was on a call. After the last corrective action, the hospital transferred Wilson to a different shift. Three days later, she applied for, and was granted, FMLA leave. She then appealed the corrective actions through the Clinic's internal processes. After the hospital rejected her appeal and upheld the correction actions, she resigned to take a job with a different employer. She then sued the Clinic for, among other things, FMLA retaliation relating to the corrective actions.

In Wilson v. CCF (N.D. Ohio 2/6/13), the district court concluded that the corrective actions were not "adverse" to support a claim of retaliation under the FMLA.

The Court finds that the corrective action Plaintiff received for calling a customer/coworker a "knucklehead" is not an adverse employment action.... Plaintiff received a corrective action for calling a coworker a "knucklehead." Plaintiff does not dispute doing so and therefore, cannot rely on this as evidence of constructive discharge when it was based on her own misconduct.

Exercising control to dole out legitimate discipline is not retaliation or discrimination. It's sound management of your people. Provided the punishment fits the crime, and provided the punishment is consistent with your past practices, you can discipline without fear of retribution.

Beware saying too much when engaging in pre-suit settlement negotiations

Most lawsuits between employers and employees do not start out as lawsuits. They start out as conversations between the aggrieved employee's lawyer and the company's counsel. This order of events makes sense for both sides. If the parties can negotiate a deal pre-suit, everyone can save the time, expense, and aggravation of a protracted lawsuit. Additionally, a negotiated deal provides both sides certainty; once a lawsuit is filed, all bets are off and everyone's fate rests in the unpredictable hands of a judge or jury. 

When negotiating, Evidence Rule 408 (which bars the use of offers to compromise) provides everyone some peace of mind that the settlement offers will not end up in front of the jury at trial. This fact is important, because a company does not want a jury learning that an offer of settlement had been made. A jury might perceive such an offer as an admission of liability, or a floor below which its verdict cannot fall.

What happens, however, when, in the course of pre-suit negotiations, counsel makes statements that go beyond an offer of settlement, and discuss the merits of the underlying case? Bourhill v. Sprint Nextel Corp. (D.N.J. 1/23/13) [pdf] is a cautionary tale for employers' counsel responding to pre-suit settlement demands.

After Sprint terminated Bourhill, he retained an attorney to pursue a disability discrimination claim on his behalf. Before filing suit, Bourhill's attorney wrote the following to Sprint, to gauge the hope of a negotiated resolution:

While we have advised Mr. Bourhill that we are prepared to take his claims forward to litigation, he has advised us that he would prefer at this time to resolve this situation informally, by means of a [sic] adequate compensatory settlement. Please contact me, or have your attorney contact me, to discuss whether you desire to resolve this matter amicably, privately, and without resort to litigation. If I do not hear from you by February 22, 2010, we will proceed to take action to enforce Mr. Bourhill's rights.

Sprint's in-house counsel responded with a letter of his own, captioned, "Confidential/For Settlement Purposes Only".

I spoke to your assistant last week regarding your client's allegations that Sprint violated the New Jersey Law Against Discrimination. As I advised her, my investigation does not support your allegations. Mr. Bourhill's employment was terminated when, after being out of work for eight months, he went on long-term disability, a termination which was mandated by the Plan documents. Our records show his long-term disability benefits were approved through May 31, 2010. Even if Mr. Bourhill was able to return to work without restrictions in December 2009, Sprint does not grant employees one-year leaves of absences and, in this case, would have been prohibited from doing so by the Plan documents requiring termination of employment. While Mr. Bourhill remained free to re-apply for available positions at Sprint once he was cleared for work, our records show he failed to do so.

I also further noted that although your letter of February 3 inquires as to Sprint's interest in an amicable resolution, the letter does not request any specific relief. I asked your assistant if your client was attempting perhaps to use this letter as leverage to avoid repaying Sprint the overpayments he received in the amount of $7,564.57. She did not know but indicated you would get back to me. As I have not heard from you to date, I am following up via letter. In short, it is difficult to consider an amicable resolution without knowing the relief sought by your client. If you would like to get back to me with a specific proposal that also addresses the overpayments received by your client, I remain available. Thank you.

In the ensuing litigation, Bourhill's attorney attempted to use Sprint's counsel's letter to defeat Sprint's motion for summary judgment. Sprint objected, arguing that the letter was an inadmissible offer to compromise, barred by Evidence Rule 408. The trial court agreed with Sprint, but only as to the second paragraph of its letter, which discussed the money. The court allowed Bourhill to use the letter's opening paragraph, which discussed the merits of the termination. The court believed that it could divorce the two paragraphs from each other if the first paragraph was not logically connected to the second. Because the first paragraph discussed the merits of the case, and the second monetary compensation, the court redacted the second paragraph under Evidence Rule 408, and considered the redacted letter as part of the record on Sprint's motion for summary judgment.

This case teaches employers' counsel a valuable lesson. We can fall into a trap of Rule 408 myopathy -- that if we caption something "Rule 408 Confidential and Inadmissible Settlement Negotiations", courts will consider it as such and bar its use. As Bourhill makes clear, courts can divorce substantive statements from settlement negotiations, and only bar the latter. 

What is the lesson here? As a management lawyer, keep written settlement communications short and to the point -- the offer itself. If you have to discuss the merits of the case with the employee's lawyer, either do so over the phone or only put in writing what you live with a judge or jury considering.

Is an employer obligated to provide light duty to an employee returning from FMLA leave?

Many employers use temporary light duty assignments to enable ill or injured employees to return to work before they are fully healed. In fact, rehabilitation specialists will tell you that it is better for both the employee and the employer for one to return to work sooner on a modified assignment than to wait until full recovery. Is an employer required to offer light duty to an ill or hurt employee out on FMLA leave, or can an employer require an employee to remain on FMLA leave until full recovery? According to James v. Hyatt Regency Chicago (7th Cir. 2/13/13), light duty is not a right to which employees can insist under the FMLA.

Carris James spent his 22-year career with the Hyatt Regency Chicago as a banquet steward. In March 2007, he suffered a non-work-related eye injury and required surgery. The company offered him FMLA leave, which he accepted. Before his medical leave ended (which his collective bargaining agreement had extended beyond the FMLA’s required 12 weeks), James faxed a note from one of his physicians, which stated that James could return to work with certain lifting and bending restrictions. Those restrictions would have prevented him from returning to his banquet steward position. When Hyatt refused to offer light duty, James sued.

James argued that Hyatt interfered with his FMLA entitlement when it did not reinstate him to a light duty position. The court disagreed. It relied on the plain language of the FMLA’s regulations: “If the employee is unable to perform an essential function of the position because of a physical or mental condition … the employee has no right to restoration to another position under the FMLA.” Because light duty is not an “equivalent” position, the FMLA does not mandate restoration to a light duty position. It only protects employees who can return and perform all of the essential functions of their position. Because James’s doctor only released him to light duty, the company had no obligation under the FMLA to bring him back to work.

While the answer to this issue under the FMLA is fairly straight forward, often times the ADA will dictate a different result. Before denying light duty to an employee returning from FMLA leave, you must consider whether the ADA requires the light duty as a reasonable accommodation. If you have light duty available, and do not have to create a light duty position to accommodate the employee, the ADA will likely require the consideration of temporary light duty as a reasonable accommodation.

WIRTW #263 (the “never go to work” edition)

I’m writing this week’s recap from the comfort of my home study, a fact that strongly suggests my opinion on Yahoo’s recent mandate prohibiting its employees from telecommuting. What do some other bloggers think?

• THE GREAT REMOTE WORKER DEBATE: The Only Two Things That Matter… — from The HR Capitalist, Kris Dunn
• Yahoo is making a Mistake Using Telework as the Scapegoat — from Mike Haberman’s Omega HR Solutions
• Marissa Mayer Is No Fool — from Harvard Business Review
• Get Real: Working From Home Does Not Destroy Productivity — from Evil HR Lady, Suzanne Lucas
• Yahoo! has a new no-telecommuting rule. Here's why it may be unlawful — from Eric Meyer’s The Employer Handbook Blog
• No, I Don’t Care if Yahoo Lets Their Employees Work From Home or Not — from YourHRGuy
• Yahoo in “damage control” after leak of memo banning telecommuting — from Ragan.com
• Telecommuting: Should You Allow It? — from ERC Insights Blog
• Do You Work From Home? — from Lifehacker

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

Discrimination

• The March Toward a Bullying Cause of Action Continues — from Michael Fox’s Jottings By An Employer’s Lawyer
• FMLA, Title VII and Male Caregiver Discrimination — from i-Sight Investigation Software Blog
• I’ll be darned! Court finds that random alcohol tests don't always violate the ADA — from Robin Shea’s Employment and Labor Insider
• You’re Damned if You or Your Managers Have Sex with Your Employees. — from damnedif

Social Media & Workplace Technology

• Facebook Password “Privacy” Bill Is An Answer In Search of a Problem — from Dan Schwartz’s Connecticut Employment Law Blog
• iPhone search warrant shows just how much information is on a cellphone — from The Verge
• BYOD Part 4: Developing a BYOD Program — from Employment & Human Rights Law In Canada

HR & Employee Relations

• My boss isn’t compassionate about my sick leave — from Ask a Manager
• Work Hard, Play Hard: Your PTO Policy — from GMS Blog
• 5M Settlement for Background Check Claims: Employers, Listen Up! — from employeescreenIQ Blog
• Is Pre-Employment Screening (Slowly?) Being “Outlawed”? — from The Emplawyerologist
• Sex, Relationships & Romance at Work Are Awkward & Inappropriate — from Jessica Miller-Merrell’s Blogging4Jobs
• Do your employees understand at-will employment? — from Warren & Associates Blog

Wage & Hour

• “Everybody Is Doing It” Is Not a Valid Defense Under the FLSA — from Molly DiBianca’s Delaware Employment Law Blog
• Think You Need an Intern? Think Hard Before Signing One Up… — from Hiring & Firing
• DOL Seeks Comments On Independent Contractor Misclassification — from Laconic Law Blog
• Texas Federal Court Agrees With Employer: Gate Attendants Are Independent Contractors Within the Meaning of FLSA — from Wage and Hour Law Update
• What to Do When a Wage Hour Investigation Team Arrives to Start Auditing — from Wage & Hour Defense Blog
• Are liquidated damages discretionary in a retaliation case under the FLSA? — from Work Matters

Labor Relations

• The NLRB brings Goldilocks to the HR table — from John Holmquist’s Michigan Employment Law Connection
• Union Bailout Update — from Labor Relations Institute
• Confidentiality of witness statements no longer assured under new NLRB decision — from EmployerLINC

Until next week…

New FMLA forms, posters, coming next week

If you are an FMLA-covered business, you need to know that FMLA posters and forms you use are about to change.

The U.S. Department of Labor (DOL) recently issued new FMLA regulations. The substance of these new regulations, which go into place March 8, relate to the FMLA's military leave provisions and airline flight crew personnel. For your convenience, the DOL has prepared a side-by-side comparison of the old and new regulations.

Importantly, the regulations require covered employers to post a new, updated FMLA poster no later than March 8, 2013. The new poster is available for download at the DOL's website:

http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf 

Finally, the FMLA has also made available new certification, eligibility, and designation forms, which are also available for download on its website:

http://www.dol.gov/whd/fmla/2013rule/militaryForms.htm

How long is too long for an unpaid medical leave of absence? Not two weeks and a day.

Unpaid medical leaves of absence are the bane of many employers. There should be little doubt that employers must consider an unpaid leave as a possible reasonable accommodation for an employee’s disability. Thus, when considering unpaid leaves, the key question typically isn’t if the leave should be granted, but, instead, for how long.

I don’t have an answer to the question, “For how long,” other than long enough to provide the employee a reasonable opportunity to return to work, and not forever. The answer depends on the facts and circumstances of each employee, each leave request, and each company. One answer I can provide with certainty, however, is that when an employee asks for “one more day” of unpaid leave, most often an employer will act unreasonably (and in violation of the ADA) by denying the request.

Such was the case with a recent settlement between the EEOC and a Maryland medical practice. Per the EEOC,

Doneen King, a medical practice representative whose duties included answering phone calls and scheduling appointments, was unable to work for two weeks while undergoing medical treatment for her disability, Crohn’s disease, including two emergency room visits and a hospitalization…. [W]hen King requested an additional day of unpaid leave as a reasonable accommodation, the medical practice instead terminated her.

University of Maryland Faculty Physicians, Inc.’ lateness and attendance policy violated the [ADA] because it did not provide for exceptions or modifications to the attendance policy as a reasonable accommodation for individuals with disabilities.

The medical practice paid $92,500 to the terminated employee. It also agreed to a three-year consent decree that prohibits it from violating the ADA, requires it to revise its attendance policy to permit disability-related accommodations, mandates management training on the ADA and reasonable accommodations, and obligates the employer to report to the EEOC on its compliance with the consent decree.

Spencer H. Lewis, Jr., district director of the EEOC’s Philadelphia District Office, provides the takeaway for employers: “It is not only a good business practice to provide reasonable and inexpensive accommodations that allow employees with disabilities to remain employed, it is required by federal law.” In other words, think long and hard before you deny a request for unpaid time off for an employee’s medical issue, and, when in doubt, call your employment counsel for a sanity check.

photo credit: Derek Bridges via photopin cc

Ohio attempts to ban employers from seeking social media passwords (take 2)

Last week, seven Ohio democratic senators introduced Senate Bill 45, which would prohibit employers “from requiring an applicant or employee to provide access to private electronic accounts of the applicant or employee.” It is identical to last year’s S.B. 351, which never made it out of committee. I have a feeling this year’s S.B. 45 will meet a similar fate, which is a good thing. For an analysis of what this bill says, you can read last year’s blog post on S.B. 351.

This bill has lots wrong with it.

1. It attempts to add to Ohio’s protected classes. It would elevate asking an employee for a social media login or password to the same level of importance  as discrimination based on race, sex, religious, national origin, age, disability, and military status. For a practice in which few, if any, employers engage, such protections are over reaching and beyond ridiculous.

2. It contains no exceptions for internal investigations. Suppose, for example, Jane Doe reports that a co-worker is sending her sexually explicit messages via Facebook. You have an absolute duty under both Title VII and Ohio’s employment discrimination statute to investigate and take whatever remedial action is necessary to ensure that any misconduct ends. Yet, this bill would prohibit you from even asking the accused to provide access to his Facebook account as part of your investigation.

3. It contains no exceptions for regulated industries. For example, registered representatives have special rules that dictate what they can or cannot say to clients and prospective clients via social media. FINRA requires employers to track and maintain records of the communications between registered reps and the public. Yet, this bill would prohibit a securities firm from requiring its registered reps to turn over these communications. It would also prohibit the firm from even asking for access to a rep’s social media account to investigate a customer complaint or regulatory issue.

4. Check out the penalties. In addition to civil fines, violations bring into play the full panoply of damages available under Ohio’s civil rights statute, including compensatory damages, pain and suffering, emotional distress, and punitive damages.

Just because something is a bad HR practice does not mean we need a law to regulate it. Nevertheless, the solution proposed by S.B. 45 has so many problems that, as proposed, it presents an unworkable and dangerous solution to an illusory problem.

photo credit: totumweb via photopin cc

Does social media change the meaning of “solicitation?”

Consider the following scenario. Your company uses sales representatives to sell its products. To protect your company’s relationship with its other employees, you require all sales reps to sign a no-solicitation agreement as a condition of their employment. Under the agreement reps cannot “directly or indirectly solicit, entice, persuade or induce any … employee … of the Company … to terminate or refrain from renewing or extending his or her employment, association or membership with the Company … or to become employed by or enter into a contractual relationship” with the employee executing the no-solicitation agreement.

If an employee connects with co-workers on Facebook or any other social network, and then leaves your company, has he violated the no-solicitation agreement by maintaining the connections?

According to the court in Pre-Paid Legal Services, Inc. v. Cahill (E.D. Okla. 1/22/13), the answer is, “No.”

In this case, PPLSI complains that Facebook posts that tout generally the benefits of Nerium as a product and Defendant's professional satisfaction with Nerium constitute solicitations presumably because some of Defendant's Facebook “friends” are also PPLSI sales associates and may view Defendant’s posts….

PPLSI has not shown any intent on Defendant’s part to solicit current PPLSI associates…. There was no evidence presented that Defendant’s Facebook posts have resulted in the departure of a single PPLSI associate, nor was there any evidence indicating that Defendant is targeting PPLSI sales associates by posting directly on their walls or through private messaging.

In other words, because the employer could not demonstrate any intent on the part of the departed employee to solicit other employees via Facebook, the mere fact that they are Facebook friends is not enough to violate the no-solicitation covenant. Presumably, the same logic would hold true if the no-solicitation covenant applied to customers instead of employees.

One case does not equal dogma (although Cahill did discuss and agree with another similar case from an Indiana appellate court). These cases are highly fact specific and depend as much on the court's perception of the parties’ equities as they do on the language of the challenged agreements.

If, however, you are concerned about ex-employees using Facebook, Twitter, LinkedIn, and other social networks to lure employees or customers, why not include language in your no-solicitation agreement to cover such a possibility?

“Solicitation” includes, but is not limited to, offering to make, accepting an offer to make, or continuing an already existing online relationship via a Social Media Site. “Social Media Site” means all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, in addition to any other form of electronic communication.

By defining “solicitation” to include passive social media connections and activities, you are at least putting yourself into a position to have a court consider shutting down an ex-employee for maintaining online relationships.

WIRTW #262 (the “what would you do” edition)

By now you’ve probably heard about the man who slapped crying toddler on an airplane after dropping an n-bomb on the child. In addition to facing criminal charges, the accused slapper, Joe Rickey Hundley, is out of a job. Prior to the incident, he worked as an executive for AGC Aerospace & Defense. Within days of the story going viral, AGC fired Hundley, and issued a statement by its CEO decrying Hundley’s behavior as “embarrassing” and “not in any way reflect[ing] the patriotic character of the men and women of diverse backgrounds who work tirelessly in our business.” (side note: would anyone have thought that the company was in favor of n-bombs and baby slapping if it did not issue a public statement?)

Here’s my question for you, dear readers. If Hundley worked for you, would you have fired him? Did Joe Rickey Hundley deserve to lose his job?

Answer in the comments below, or tweet me @jonhyman.

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

Discrimination

• EEOC sues law firm over 75-lb. lifting requirement — from Walter Olson’s Overlawyered
• Lawful Discrimination and Off-Duty Conduct — from Molly DiBianca’s Delaware Employment Law Blog
• Beginning a Racist Request with “please” does not make it any less Racist or Discriminatory Even if Asked for the Benefit of an Employer’s Customer — from Jason Shinn’s Michigan Employment Law Advisor
• Severance Agreements and the Older Workers Benefits Protection Act — from The Emplawyerologist
• EEOC statistics confirm the ADAAA’s impact — from Warren & Associates Blog
• You Cannot Fire A Pregnant Employee Because “The Baby Is Taking Its Toll On You” — from Employment Discrimination Report

Social Media & Workplace Technology

• Can a Court Force Me to Disclose My Facebook Password? — from Augmented Legality
• Right To Privacy Will Be Protected By The Social Networking Online Protection Act — from Shear on Social Media Law
• “Too much information” can get you fired! — from Robin Shea’s Employment and Labor Insider
• Stalked By Supervisor on Facebook and Then Fired — from Work Place Coach Blog
• The “savings clause” for employer social media policies — from Technology for HR
• 10 things you can do to boost your BYOD security — from Consumerization Blog
• How do you Respond to the Legal Risks of BYOD? — from netWORKed Lawyers

HR & Employee Relations

• Want Higher Productivity? Stop Treating Your Employees Like Children — from Evil HR Lady, Suzanne Lucas
• White House announces new strategy to fight theft of intellectual property — from The Verge
• Dear Evil Skippy: One Of My Employees Always Smells Like Dog — from Evil Skippy at Work
• From Red Flags in Employee Handbooks to Django Unchained — from TLNT
• Drafting: No defendant left behind — from John Holmquist’s Michigan Employment Law Connection
• Work-Life Isn’t A Women’s Issue — from Eve Tahmincioglu’s CareerDiva
• Is Hiring More Felons Good for Business? — from Nick Fishman’s employeescreenIQ Blog

Wage & Hour

• New FMLA Forms! — from Phil Miles’s Lawffice Space
• ABA's Summary of 2012 FMLA Cases a Valuable Resource for Employers, Attorneys — from Jeff Nowak’s FMLA Insights
• Employee’s Facebook Fumble Dooms Her FMLA Claims — from Trade Secret / Noncompete Blog
• Supreme Court to determine what “clothes” are under the FLSA. — from Eric Meyer’s The Employer Handbook Blog
• Employee Who Performed Work Afterhours for Employer Through His Separate Company Held to be Independent Contractor for Afterhours Work — from Overtime Law Blog

Labor Relations

• Non-union? Not a problem for NLRB — from HR idiot
• Employers are not always the Bad Guys — from Mike Haberman’s Omega HR Solutions
• You Have The Right To Discuss Salary With Coworkers — from Donna Ballman’s Screw You Guys, I’m Going Home

 

It’s your last chance … to avoid retaliation

Last month, the EEOC announced a half-million dollar settlement with BASF Corporation. The agency alleged that BASF retaliated against a poor performing employee by insisting, as part of a “last-chance agreement”, that the employee not file any charges of discrimination with the EEOC. Concerned about the agreement’s effect on his civil rights, the employee refused to sign; the company fired him.

Agreements are wonderful tools to use with our employees. They come in all shapes and sizes—employment agreements, severance agreements, settlement agreements, and last-chance agreements, to name a few. One benefit from an agreement is that it can limit an employee’s ability to bring suit against an employer. For example, many employment agreements contain clauses that waive one’s right to ask for a jury trial. Severance agreements customarily contain releases of claims, waivers of rights, and covenants not to sue.

No matter the agreement, however, there is one clause that it cannot contain—a covenant by the employee waiving his or her right to file a charge of discrimination with the EEOC. Employees have an absolute right to seek vindication of their rights with the EEOC, and a requirement that an employee waive that right is retaliation. You can require that the employee waive his or her right to collect any money as a result of any charge filed with, or lawsuit filed by, the EEOC. Once you cross the line and mandate a waiver of the right to file a charge, you have retaliated.

In this case, this lesson cost BASF $500,000. The EEOC and I do not always see eye to eye. The lesson for employers to take away from this case, however, is valuable, and comes courtesy of the agency:

“The EEOC has an inherent, institutional interest in maintaining open lines of communication with people who believe they may be victims of discrimination,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “That is why employers who attempt to break that line of communication by dissuading employees from filing EEOC charges are breaking the law.  Courts get that, and with this case, we hope more employers will as well.”

The EEOC’s Chicago District Director John Rowe, added, “Cognis presented the victims in this case with a terrible, illegal choice: lose your job or lose your civil rights. Under the law, no worker has to make that kind of choice. Employers would be better served by working to ensure that their employees are free from discrimination, rather than threatening their workers with termination in an effort to make sure that employees don’t complain.”

This post originally appeared on The Legal Workplace Blog.

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.