Beware bans on pay discussions among employees

Pop quiz. What’s wrong with the following paragraph, which appeared in the April 17, 2013, Wall Street Journal article entitled, Workers Share Their Salary Secrets?

At Brian Bader’s orientation for a tech-support job with Apple three years ago, he says, human-resources managers ran down the list of guidelines workers were expected to follow. Don’t use explicit language on calls with customers. Treat other employees with respect. And, he says, they told the assembled recruits, don’t discuss your pay with co-workers.

If you answered, “An employer can’t legally prohibit employees from discussing how much they make,” give yourself a prize.

As the 6th Circuit explained in NLRB v. Main Street Terrace Care Center:

A rule prohibiting employees from communicating with one another regarding wages, a key objective of organizational activity, undoubtedly tends to interfere with the employees’ right to engage in protected concerted activity…. [T]he fact that the rule was promulgated orally rather than written in an employee handbook, for example, makes no difference….

Does your handbook have a policy that prohibits employees from discussing how much you pay them? If so, get rid of it.

Do your managers and supervisor know that they cannot terminate or discipline employees for discussing how much they make? If not, train them on these rules.

NLRB confirms legality of most at-will disclaimers (and employers everywhere rejoice)

The NLRB has confused me with its apparent reasonableness. Last week, the NLRB published an advice memorandum from its Office of General Counsel, in which it opined that the at-will disclaimer in an employer’s handbook did not violate employees’ Section 7 rights to engage in protected, concerted activity.

Recall that last year, the NLRB launched a preliminary offensive against handbook at-will disclaimers.

In its most recent proclamation [pdf], the Board considered the following at-will language:

Employment with the Company is at-will which means the employment relationship may be terminated with or without cause and with or without notice at any time by you or the Company. In addition, the Company may alter an employee’s position, duties, title or compensation at any time, with or without notice and with or without cause. Nothing in this Handbook or in any document or statement and nothing implied from any course of conduct shall limit the Company’s or employee’s right to terminate employment at-will. Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.

The NLRB’s Office of GC concluded that the italicized language is lawful because it cannot reasonably be interpreted to restrict employees’ Section 7 rights to engage in concerted attempts to change the employment at-will status. The Office of GC contrasted this language with other language that an NLRB Administrative Law Judge has previously found unlawful: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The difference, according to this memo, is the ability to modify the at-will nature of the employment in the future.

The take-aways?

1. The NLRB will examine at-will disclaimers on a case-by-case basis, and I do not expect we will see the Board take the unreasonable position that all at-will disclaimers are unlawful.
2. You should take a look at your current at-will language to make sure it does not foreclose the possibility of future modifications of employees’ at-will status.

I’ll leave you with one final thought. In a footnote, the Office of GC made the following comment: “The Board repeatedly has said that potentially violative phrases must be read in context and that it will not find a violation simply because a rule could conceivably be read to restrict Section 7 activity.” If that statement is true, how can the NLRB continue to justify its over-the-top policy statements on social media policies? If the NLRB can carry its reasonable position on at-will disclaimers over to social media policies, I think we might just become friends.

Staged RIFs qualify for heightened protection from age discrimination

Employers who eliminate headcount as part of a reduction in force receive special protection under the age discrimination laws. In a bona fide RIF, the employer has a built-in legitimate, non-discriminatory reason for a termination—the business considerations and economic necessities that caused the job eliminations. In such a case, an employee cannot establish a prima facie case of age discrimination without some additional direct, circumstantial, or statistical evidence showing that age was a factor in the termination. The mere termination of a competent employee in the face of economically based cutbacks is not enough to establish a prima facie case of age discrimination.

What happens, though, when an employer cuts headcount in stages? For example, what if an employer facing economic distress lays off a number of employees, and a year later lays off someone else? Can the employer claim the benefit of the more stringent age discrimination test that accompanies a bona fide RIF for the later termination?

Such was the case in Weisfeld v. PASCO, Inc. (Ohio Ct. App. 4/17/13) [pdf]. In 2009, PASCO lost a contract that accounted for 80 – 90 percent of its revenue. As a result, it laid off more than 80 percent of its employees. Most of those firings happened shortly after the lost contract. The company waited a year, though, to fire six key employees, including Todd Weisfeld, its 48-year-old director of technology, who declined a restructured job as a network coordinator.

In his ensuing age discrimination lawsuit, Mr. Weisfeld argued that the passage of time between when PASCO terminated him as compared to the bulk of his co-workers precluded the company from claiming that Weisfeld’s termination was part of a reduction in force. The court, however, disagreed:

Contrary to Mr. Weisfeld’s understanding, an employee is terminated pursuant to a reduction in force whenever “business considerations” are the driving force behind the company’s decision. It is immaterial that PASCO eliminated some positions immediately after losing the California contract and waited over a year to eliminate other positions. So long as the company’s decision was because of business considerations and it did not replace Mr. Weisfeld with another employee, his discharge was pursuant to a reduction in force.

Absent any evidence that PASCO lacked a legitimate business reason for eliminating its director of technology position, Mr. Weisfeld’s age discrimination claim failed.

This case shows the powerful advantage that employers hold in defending discrimination cases that arise out of reductions in force. It also shows that RIFs can occur in stages and over time. At least according to Weisfeld v. PASCO, an employer can retain key employees during a layoff and still claim the evidentiary benefit of the RIF when economic realities dictate a later termination of those key employees.

NLRB offers further guidance on confidential workplace investigations

Last July, I cautioned employers about the NLRB’s decision in Banner Estrella Medical Center. In that case, the NLRB held that an employer’s request to employees not to discuss a workplace investigation with their coworkers while the investigation was ongoing violated the employees’ rights to engage in protected concerted activity. At the time, I wrote the following:

By prohibiting employers from requiring that workplace investigations remain confidential, your decision in Banner Estrella neuters the ability of employers to make key credibility determinations. Limiting confidentiality in this manner will severely constrain the ability of employers to conduct thorough and accurate workplace investigations, which, in turn, limits the ability of employers to stop the workplace evils they are investigating (discrimination, harassment, theft, etc.).

I’m not certain that the NLRB heeded my warning, but last week it did signal that it is backing off its unreasonable position. In a recently published advice memorandum, the NLRB’s Office of General Counsel clarified the Board’s position on confidential workplace investigations.

The GC considered the following policy:

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.

To assist [Employer] in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In the opinion of the NLRB’s Office of General Counsel, this policy’s blanket confidentiality restrictions placed on workplace investigations violated employees’ rights to engage in protected, concerted activity. The Office of GC believed that while the first paragraph is perfectly legal, the second is overly restrictive. In its place, the Office of GC suggested provided substitute language that would pass muster under Section 7. Specifically, he suggested that replacing the last two sentences of the policy with the following language would render the policy legal:

[Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

In other words, if an employer makes confidentiality discretionary, on an investigation-by-investigation basis, the policy would pass Section 7 scrutiny.

Some may herald this opinion as a victory for employers. To me, its a difference without a distinction. All workplace investigation should be confidential. Otherwise, an employer can lawfully carry out its obligation to conduct an untainted investigation. Even if you have the suggested “discretionary” language in your harassment or workplace misconduct policy, you should nevertheless exercise that discretion in every investigation.. So, I ask, if every investigation should be confidential, what is the harm in providing for mandatory confidentiality in a policy?

I applaud the NLRB’s Office of General Counsel for offering employers suggested language. I still believe, however, that the NLRB fails to understand the importance of confidentiality in workplace investigations, and further fails to understand the realities of how workplace investigations work.

[Hat tip: Lorene Schaefer’s Win-Win HR]

WIRWT #270 (the “… and the home of the brave” edition)

Have you seen the video of the National Anthem at last night’s Boston Bruins’s game? Do you want to get choked up watching 17,565 Bostonians sing their collective hearts out? Well, here you go [h/t: The 700 Level]

 

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

Discrimination

• Case Of Muslim Employees Denied Time For Prayer To Go To Trial — from Employment Discrimination Report
• ADA accommodation talk should occur before employment decision — from EmployerLINC
• It Is All About How You Handle an Equal Opportunity Harasser — from Employer Law Report
• A reminder: retaliation claims can (and often do) succeed even where the Underlying Claim Fails — from Warren & Associates Blog
• Dear Evil Skippy: Is It Harassment To Call An Employee “Stupid”? — from Evil Skippy at Work
• Playing with the Cards Your Dealt Is Critical to Resolving Employment Discrimination Claims — from Jason Shinn’s Michigan Employment Law Advisor
• “Looks” discrimination can be a problem even if you're in retail, fashion, or marketing — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Workplace Issues Now Grow on “Vines”; Why Employers Need a Policy More Than Ever — from Dan Schwartz’s Connecticut Employment Law Blog
• Survey Says: Why Doesn’t HR Believe in Social Media Employment Background Checks? — from employeescreenIQ Blog
• The New Résumé: It's 140 Characters — from the Wall Street Journal
• Instagram Post Lands Delaware Restaurant Manager In Hot Water — from Molly DiBianca’s Delaware Employment Law Blog
• You’ve Got (No) Mail! Major Law Firm Blocks Employee Email Access — from Above the Law
• The Computer Fraud and Abuse Act and Disloyal Employees: A Narrow Bridge To Nowhere? — from Trading Secrets
• TimeRescue Joins Market for Time and Productivity Tools — from Workforce

HR & Employee Relations

• Why Courts Like Non-Solicits over Non-Competes — from Smooth Transitions
• A whopper of a resignation — from Passive Aggressive Notes
• Pregnant at Work — from Lawyerist
• The Do’s And Don’ts Of Discussing National Tragedies At Work — from Workplace Diva

Wage & Hour

• DOL Publishes PowerPoint Presentation to Help Train Employees about FMLA from Jeff Nowak’s FMLA Insights
• Supreme Court Vacates 7th Circuit Class Certification Ruling, Signaling Shift In The Landscape Of Wage-And-Hour Litigation — from Wage & Hour Defense Institute
• Use Of Preemption Defense In Wage-Hour Lawsuit May Kill Entire Action — from Wage & Hour - Development & Highlights
• Guess What We Got With the Acquisition? A $500,000 FLSA Bill — from TLNT

Labor Relations

• In dust of Strongsville teachers strike is myriad of legal questions — from Cleveland.com
• House Votes To Freeze NLRB — from Workplace Prof Blog
• 3 Things Employers Need to Know About the NLRA — from Workplace Insights
• Circuit Court Affirms Healthcare Facilities' Single Employer Status Under NLRA — from Labor Relations Counsel

There is no such thing as a “license to harass”

To establish an unlawful hostile work environment, an employee must prove, among other factors, that the workplace was subjectively offensive. Some employers misinterpret this requirement as meaning that an employee who participates in sexual banter, off-color jokes, or shares intimate details of her personal life is asking to be harassed.

Case in point? In EEOC v. Joe Ryan Enterprises (M.D. Ala. 3/28/13), the employer attempted to defend against a sexual harassment lawsuit by arguing that it had a “license” to harass the plaintiff, presumably because of her earlier participation in similarly offensive misconduct in the workplace. The district court was not having any of that argument, and granted the EEOC’s motion to prohibit the employer from raising that defense:

The Court has come across no authority to support Joe Ryan’s proposition that the defenses of “license” and “ratification” apply in a sexual harassment/constructive discharge context....

Still, even if the Court were to entertain this defense, it is clear that what Joe Ryan has argued is a far cry from the traditional defenses of “license” and “ratification.” Indeed, in its opposition brief, Joe Ryan claims that Ms. Brown’s “eager, enthusiastic and contributory participation to the acts and language she now complains of” evidences her purported “license” and “ratification” of the discriminatory conduct she endured while employed with Joe Ryan.

In Joe Ryan, the employee allegedly hung a sexually suggestive cartoon in a work trailer. Just because an employee engages in some workplace banter, however, does not mean that she acquiesces to all forms of sexual misconduct, such as being called a “whore” (one of the allegations in the case).

Employers need to build these concepts into their workplace anti-harassment training. Employees need to understand that some participation in sex-based workplace hijinks does not create a license to harass in perpetuity. No one can tell where someone draws his or her personal line of inappropriateness, and trying to make that decision for someone else can only result in trouble (i.e., a lawsuit) down the road.

This post originally appeared on The Legal Workplace Blog.

SCOTUS: Picking off individual plaintiffs moots wage and hour collective action

The pickoff is one of the most dramatic defensive plays in baseball. It can single-handedly kill a rally. The tying run on first? One deft move by the pitcher to first base, coupled with a lead that’s one step too cocky? Rally over.

We love baseball in part because it can be a metaphor for much that happens in our lives. Today, it’s a metaphor for wage and hour law.

The issue the Supreme Court faced in Genesis Healthcare Corp. v. Symczyk (4/16/13) [pdf] was whether a case becomes moot when the lone plaintiff receives an offer from the defendants to satisfy all of the plaintiff’s claims. Last December, I predicted an employer loss in this case (the link also provides all the case background you’ll need).

I’m happy to report that my prediction was very wrong. In a partisan 5-4 decision, the Court held as follows:

Because respondent had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness, her suit was appropriately dismissed for lack of subject-matter jurisdiction.

In other words, because there was nothing left for the plaintiff to litigate after the rejected offer of judgment, the plaintiff had no right to pursue the remaining collective claims.

Here’s the money quote from the Court:

In this case, respondent’s complaint requested statutory damages. Unlike claims for injunctive relief challenging ongoing conduct, a claim for damages cannot evade review; it remains live until it is settled, judicially resolved, or barred by a statute of limitations. Nor can a defendant’s attempt to obtain settlement insulate such a claim from review, for a full settlement offer addresses plaintiff’s alleged harm by making the plaintiff whole. While settlement may have the collateral effect of foreclosing unjoined claimants from having their rights vindicated in respondent’s suit, such putative plaintiffs remain free to vindicate their rights in their own suits. They are no less able to have their claims settled or adjudicated following respondent’s suit than if her suit had never been filed at all.

There is perhaps no greater threat facing employers than the risk of a wage and hour collective action—both because of the difficulty in complying with the FLSA’s maze of anachronistic rules and regulations, and because of the expense incurred in defending such a claim. Genesis Healthcare confirms that employers have a powerful weapon at their disposal to cut these dangerous claims off at their knees—a Rule 68 offer of judgment.

Much like a baserunner failing to anticipate a deft pitcher’s move to first base, the Court confirmed that a valid offer of judgment can catch your opponent off-guard and end their hopes of a successful collective action.

For more analysis of this decision, please read the thoughts of some of my fellow bloggers:

• SCOTUS Blog — Opinion recap: A “pick off” strategy works
• Phil Miles’s Lawffice Space — SCOTUS Decides FLSA Pick-Off Case 
• Eric Meyer’s The Employer Handbook Blog —Employee caught in a pick, Supreme Court scratches her FLSA claims
• Workplace Prof Blog — Supreme Court Holds That Employer's Offer Moots FLSA Class Action Prior To Certification
• Michael Fox’s Jotting’s By An Employer’s Lawyer — Genesis Healthcare Corp. v. Symczyk — A Wasted Opportunity?
• Daily Kos — Conservative Supremes thwart fair wages claim, and Kagan lets 'em have it
• The Wage & Hour Litigation Blog — Genesis of A Clearer Distinction Between Class and Collective Actions? Supreme Court Decides Symczyk

photo credit: Chicago Man via photopin cc

Do you have a workplace emergency action plan?

Yesterday’s tragedy in Boston has left me speechless. I’m frankly not sure what to say, other than I’m sick of these horrible events; what to think, other than to offer prayers; or what to feel, other than sadness for those affected.

We will search for answers (How could this happen? Who could do such a thing? How can anyone be capable of such hatred or ignorance? How do we prevent it from happening yet again?) Yet, from this tragedy we can take away one certainty—that no one can predict when or where tragedy will strike, and it pays to be prepared for the worst. Boston seems to have been prepared, and at least by early accounts, the city’s early responders helped save many from suffering a worse fate.

Employers can learn an important lesson from these ashes and tears—the importance of being prepared. OSHA publishes a booklet entitled, How to Plan for Workplace Emergencies and Evacuations. Not all employers are required to follow it, but all employers should heed its words by taking steps to prepare for the worst.

As OSHA explains it:

Nobody expects an emergency or disaster—especially one that affects them, their employees, and their business personally. Yet the simple truth is that emergencies and disasters can strike anyone, anytime, and anywhere. You and your employees could be forced to evacuate your company when you least expect it.… The best way to protect yourself, your workers, and your business is to expect the unexpected and develop a well-thoughtout emergency action plan to guide you when immediate action is necessary.… Few people can think clearly and logically in a crisis, so it is important to do so in advance, when you have time to be thorough. Brainstorm the worst-case scenarios. Ask yourself what you would do if the worst happened.

You cannot control the idiocy of others, but you can control whether you know how to respond if it happens.

I’ll leave you with the words of stand-up comic and actor Patton Oswald, who, on his Facebook page, held out hope for humanity’s inherent goodness, and perhaps made the most poignant statement in the wake of yesterday’s horrors:

Boston. F*cking horrible.

I remember, when 9/11 went down, my reaction was, “Well, I’ve had it with humanity.”

But I was wrong. I don’t know what’s going to be revealed to be behind all of this mayhem. One human insect or a poisonous mass of broken sociopaths.

But here’s what I DO know. If it’s one person or a HUNDRED people, that number is not even a fraction of a fraction of a fraction of a percent of the population on this planet. You watch the videos of the carnage and there are people running TOWARDS the destruction to help out. (Thanks FAKE Gallery founder and owner Paul Kozlowski for pointing this out to me). This is a giant planet and we’re lucky to live on it but there are prices and penalties incurred for the daily miracle of existence. One of them is, every once in awhile, the wiring of a tiny sliver of the species gets snarled and they’re pointed towards darkness.

But the vast majority stands against that darkness and, like white blood cells attacking a virus, they dilute and weaken and eventually wash away the evil doers and, more importantly, the damage they wreak. This is beyond religion or creed or nation. We would not be here if humanity were inherently evil. We’d have eaten ourselves alive long ago.

So when you spot violence, or bigotry, or intolerance or fear or just garden-variety misogyny, hatred or ignorance, just look it in the eye and think, “The good outnumber you, and we always will.”

A Muslim walks into a store… Corporate “Look Policies” and religious discrimination

I’ve written before about the tension between companies’ preferences for how employees look and the religious freedoms of those employees (here, here, here, and here).

One company that has gone many rounds in litigation over this issue is Abercrombie & Fitch. Anyone who has walked past an Abercrombie store knows the waft of its familiar fragrance. Abercrombie is not only interested in consistency in how its stores smell, but also how the employees who work in those stores look. To this end, Abercrombie maintains a formal “Look Policy,” detailing what employees are, and are not, permitted to wear. One of its bans is on headwear. According to Abercrombie, it has made at least 70 exceptions to its Look Policy in the last seven year, all on a case-by-case basis, including some religious accommodations for hijabs.

In EEOC v. Abercrombie & Fitch Stores (N.D. Cal. 4/9/13) [pdf], the EEOC alleges that a Milpitas, California, Abercrombie stored refused to accommodate Halla Banafa’s Muslim faith when it refused an exception to its Look Policy for her head scarf. The stored clued Banafa into the fact that her religion might be an issue when it asked her during the interview, “You're a Muslim, right?”
Abercrombie argued that it did not have to accommodate Banafa because it was an undue hardship to deviate from its Look Policy in her case. Specifically, Abercrombie argued that allowing the exception “would disrupt its careful branding efforts, resulting in customer confusion,” and that it would “hurt store performance.”

The court, however, sided with the EEOC, granting its motion to strike the store’s undue hardship defense:

Abercrombie does not offer any studies demonstrating a correlation between failure to comply with the Look Policy and either customer confusion or decreased sales. Nor does it offer into evidence any of the store reports that linked poor sales performance with lack of adherence to the Look Policy. Rather, Abercrombie offers only the seemingly speculative assertion on the part of its executives that the correlation exists…. Abercrombie’s executives consider adherence to the Look Policy important and part of their core strategy, yet they are unable to furnish any evidence outlining the degree to which Look Policy compliance affects store performance or brand image…. [T]he court finds that Abercrombie’s proffered evidence affords little basis upon which a reasonable jury could conclude that Abercrombie would be unduly burdened in permitting Ms. Banafa to wear a hijab at work.

This opinion is in line with that of at least two other courts that have ruled on the same issue under Abercrombie’s Look Policy (here and here).

The lessons to be learned?

1. No good comes from asking a potential employee about his or her religion during a job interview.
2. If you are going to selectively grant exceptions to work rules, your decisions will be scrutinized if later challenged in litigation, and your better have good reasons available.
3. If you hope to claim an undue hardship defense to a religious accommodation claim based on your company’s image, you need to have the hard data to back your claim. Hypothetical hardships likely will not carry the day.

[Hat tip: Chai Feldblum]

WIRTW #269 (the “roshambo” edition)

On Wednesday’s edition of DriveThruHR, Dan Schwartz challenged me to a game of Rock-Paper-Scissors to determine, once and for all, who reigns supreme in the world of employment law blogging. Dan, you’re on (and you’re going down). Just let me know when.

http://roshambo.me/

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

Discrimination

• Fired and told “your a little too old for your job,” Old Rose LOSES her age-bias claim — from Eric Meyer’s The Employer Handbook Blog
• A Refresher Course For Employers On Retaliation — from Employment Discrimination Report
• Should Smokers be a Protected Category? — from Mike Haberman’s Omega HR Solutions
• Is It Religious Harassment To Hand Out Chocolate — from Evil Skippy at Work
• Can I Be Fired for Being Gay? — from Blogging4Jobs
• Five snips on workplace harassment (plus a bonus) — from Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Should You Fire Employees Who Use (or Misuse, However Defined) Social Media? — from Dan Schwartz’s Connecticut Employment Law Blog
• What’s your opinion of BYOD privacy? — from Consumerization Blog RSS
• Coping With the Rising Mobile Workforce and the BYOD Culture — from TLNT
• Internet and Email Use in the Workplace — from ERC Insights Blog
• The Duty To Preserve Social Media Information — from Social Media Employment Law Blog
• Employees who use social media are more efficient, survey says — from Ragan.com
• Law and Order: Human Resources Unit – LinkedIn Lockout — from HR Idiot

HR & Employee Relations

• Employee Theft Blacklist: What Could Possibly Go Wrong? — from Nolo’s Employment Law Blog
• Think Your Company’s Confidential Information is Safe? Think Again! — from HR Defense Blog
• Ethical failure at Rutgers: Abusive coach, bad management, questionable lawyering — from Minding the Workplace
• Cease and Desist Letters: Defamation May Not Be An Issue But Watch Out for Tortious Interference — from Trade Secret Litigator Blog

Wage & Hour

• The Employment Law You Are Probably Breaking — from Evil HR Lady, Suzanne Lucas
• High-Tech Employers Dodge Class Certification In Anti-Solicitation Antitrust Case — from Workplace Class Action Litigation
• What Happened, Dude?: Overtime Hours, Working Time, and Tracking Apps — from The Wage & Hour Litigation Blog

Labor Relations

• Quorum, Heck a Fully Appointed NLRB? — from Michael Fox’s Jottings By An Employer’s Lawyer
• Obama Re-Nominates Pearce, Names Two Others to Fill Republican NLRB — from Labor Relations Counsel
• White House to Nominate Three NLRB Members — from Workplace Prof Blog

New bill seeks to extend comp time to private employers

One question employers ask me all the time is whether they can provide employees comp time (extra time off) in lieu of overtime. For private-sector employers, my answer is always the same—no.

I am hoping, however, that I soon may have to change my answer. Earlier this week, the Working Families Flexibility Act of 2013 [H.R. 1406] was introduced in Congress.

This bill would do all of the following:

• Permit employers to provide compensatory time off, earned at the rate of 1.5 hours per hour of overtime worked, in lieu of overtime pay.
• Provide that any comp time program must be supported by a written agreement.
• Allow employers to exclude from any comp time program employees who have worked less than 1,000 hours in the prior 12 months.
• Cap the annual comp time allotment at 160 hours per employee.
• Require that employers pay out any unused comp time at termination.
• Permits employees to use comp time upon reasonable notice, unless it unduly disrupts the employer’s operations.

The FLSA already provides similar rights to public sector employers. It’s about time that the law is changed to provide the same rights to those in the private sector. I’ll keep everyone updated if there is any movement on this bill.

Bald is beautiful … unless you’re a Hooters waitress after brain surgery

Sandra Lupo took three weeks off from her job as a Hooters waitress for brain surgery. During her leave, her manager assured her that she would be able to return to work with a “chemo cap” or jewelry to distract customers from her buzz cut and large scar. Upon her return, however, Hooters changed course and told Ms. Lupo that she would have to wear a wig. When she could not comply because the wig irritated her scar, Hooters cut her hours until she was forced to quit. According to the St. Louis Post-Dispatch, she is now suing Hooters for disability discrimination.

Let’s first take care of the low hanging fruit. The insensitivity of Hooters’s reaction to this situation is easy to spot. Just because Hooters acted insensitively, however, does not mean that it acted illegally. Indeed, whether the wig requirement discriminated against Ms. Lupo is a tricky question.

The ADA protects three classes of individuals:

1. Those with a physical or mental impairment that substantially limits one or more major life activities of such individual.
2. Those regarded as having such an impairment.
3. Those with a record of such an impairment.

Actual Disability

Post-surgery, Ms. Lupo is going to have a difficult time claiming an actual disability. Even if her benign brain tumor was an ADA disability pre-surgery, after its removal she no longer had a current “physical or mental impairment that substantially limits one or more major life activities of such individual.” Therefore, as the 6th Circuit recently recognized in Blosser v. AK Steel Corp., a tumor that has been removed is not an actual disability. 

“Regarded as” Disability

Because of the temporary nature of her baldness, Ms. Lupo is also going to have a difficult time claiming that Hooters “regarded her” as disabled. To qualify as “regarded as having” an ADA-protected impairment, one must show that the employer perceived a physical or mental impairment, and that the impairment was one with a duration of more than six months. Thus, even if Hooters perceived Ms. Lupo as impaired because of her post-surgery appearance, that appearance would dissipate in six months with the regrowth of her hair.

“Record of Disability”

Ms. Lupo’s best claim is going to be that Hooters discriminated against her because of a “record of” an impairment. “Record of” disability claims are intended to ensure that employees are not discriminated against because of a history of disability. According to one court, “The ‘record of’ definition was tailor-made for plaintiffs who … claim they once suffered from a physical or mental impairment that substantially limited a major life activity, recovered from the impairment, but nonetheless faced employment discrimination because of it.”

Yet, Ms. Lupo’s claim under this provision of the ADA is not clean. As the Blosser court noted, when a brain tumor is temporary and resolved by surgery, and the employee is able to return to work without restriction, a “record of” disability claim fails. Ms. Lupo will have a hard time establishing this claim because of the short duration of her underlying medical condition, coupled with her return to work free of any residual medical issues. Also, if Ms. Lupo does not have a protected record of a disability, Hooters has no obligation to provide any reasonable accommodation.

While Hooters will take a beating in the press over its treatment of Ms. Lupo, it is not a slam-dunk that such mistreatment violates the ADA.

[Hat tip: Eve Tahmincioglu]

photo credit: greenfaerietree via photopin cc

28 days later? Passage of time justifies recertification of intermittent FMLA leave

The FMLA permits an employer to “require that [an] eligible employee obtain subsequent [medical] re-certifications on a reasonable basis.” The FMLA’s regulations define what constitutes a “reasonable basis.” Under the regulations, and employer cannot ask for a recertification more than once every 30 days, unless “[c]ircumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications).”

In Graham v. Bluecross Blueshield of Tenn., the 6th Circuit recently held that the passage of time alone can constitute sufficiently changed circumstances to justify an employer’s early request for a recertification:

We agree with the district court's ruling as to the reasonableness of BCBST’s request for recertification after Graham’s 28 consecutive absences, in that they constituted “significantly changed circumstances….” As the district court observed, this period of absenteeism was twice as long as Graham’s longest previous episode in March 2007.

Because the employee failed to respond to a lawful recertification request, the leave was not FMLA leave, and the employer was entitled to consider the absences as unexcused.

Managing FMLA leave, and particularly managing intermittent FMLA leave, is one the most challenging tasks for employers. What qualifies as “significantly changed circumstances” will vary from case to case. Do not mistake this case as carte blanche to demand a recertification after every prolonged period of absence. Instead, consult with your employment counsel to determine the best course of action before your hasty actions get you in trouble under the FMLA.

A “wet one” renders him gay? 5th Circuit to reconsider same-sex harassment case

In EEOC v. Boh Brothers Constr. Co., ironworker Kerry Woods (male) asserted that his supervisor, Chuck Wolfe, subjected him to all of the following:

• Called Woods names such as “faggot” and “princess.”
• Approached Woods from behind to simulate sexual intercourse.
• Exposed his genitals to Woods numerous times.
• Accused Woods of being girlish because he used “Wet Ones” instead of toilet paper to clean himself after using the bathroom.

Neither Woods nor Wolfe is homosexual. According to the Court, the workplace was full of this type of misogynistic and homophobic epithets, and the recipients, including Woods, responded in kind.

After Woods’s termination, he filed a discrimination charge with the EEOC, claiming, among other things, same-sex harassment. In the subsequent lawsuit filed the EEOC, the jury returned a verdict in Woods’s favor, awarding him $200,000 in compensatory damages (statutorily reduced to $50,000) and $250,000 in punitive damages.

The 5th Circuit, however, reversed:

Title VII protects employees against workplace discrimination, not against all forms of mistreatment. The EEOC alleges that Woods was unlawfully harassed because he was not stereotypically masculine. Because the only evidence of non-stereotypically masculine behavior in the record is Woods’s use of “Wet Ones,” we conclude that the evidence is insufficient to support the jury’s verdict that Woods was discriminated against “because of … sex.”

In other words, Woods could not establish unlawful same-sex harassment because Wolfe was not homosexual, was not hostile to men in the workplace, and worked in a single-sex workplace. The 5th Circuit left for another day the question of whether sex stereotyping is a cognizable form of same-sex harassment under Title VII.

It appears that day is upon us. Last month, the 5th Circuit agreed to rehear this case en banc.

The issue will resolve tension between two Supreme Court opinions:

• Price Waterhouse v. Hopkins, the seminal case on the illegality of sex-based stereotypes under Title VII.
• Oncale v. Sundowner Offshore Services, which permits same-sex harassment claims, but only if the harasser: (i) is homosexual, (ii) is motivated by a general hostility to the presence of the same sex in the workplace, or (iii) comparatively treated members of one sex differently than members of the other in a mixed-sex workplace.

If the 5th Circuit reverses course and permits the EEOC to pursue Woods’s claim for general same-sex harassment, it will signal a giant step towards doing that which Congress has refused—protecting sexual orientation from discrimination as a class.

[Hat tip: Workplace Prof Blog]

WIRTW #268 (the “… in a box” edition)

One of the stops my wife and I made when we honeymooned in Ireland was the Irish Jewish Museum in Dublin. Because Ireland is not necessarily known for its rich Jewish history, I joked before our trip that all we’d find at the museum was a small Plexiglas box, and that I would become the exhibit, locked inside until the next unsuspecting Jew stopped by to visit. 

Little did I know how prescient I was. The Today Show is reporting that the Jewish Museum Berlin has opened a new exhibit that is being called “Jew in the Box”:

To help educate postwar generations, an exhibit at the Jewish Museum in Berlin features a Jewish man or woman seated inside a glass box for two hours a day through August to answer visitors’ questions about Jews and Jewish life. The base of the box asks: “Are there still Jews in Germany?” “A lot of our visitors don’t know any Jews and have questions they want to ask,” museum official Tina Luedecke said. “With this exhibition we offer an opportunity for those people to know more about Jews and Jewish life.”

Yes, our country has a problem with discrimination, a lot of which is tied to some deep historical baggage. In other words, we are no different than the rest of the world.

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

Discrimination

• Mutant Discrimination: GINA, Genetics and How Professor Xavier is Breaking the Law — from Law and the Multiverse
• Calling a Co-Worker “Stupid” Not Enough to Prove “Disability”, Court Says — from Dan Schwartz’s Connecticut Employment Law Blog
• Fifth Circuit Agrees to Hear Appeal Regarding Same Sex Discrimination — from San Antonio Employment Law Blog
• Bell's Palsy Sufferer Fired Because Employer Believed That She Had A Stroke — from Employment Discrimination Report
• Straight Talk on Harassment from EEOC Regional Attorney, Robert Canino — from Texas Employment Law Blog
• Does Pre-Employment Testing Increase an Employer’s Exposure to Potential Lawsuits? — from The Emplawyerologist
• Minding Discrimination — from HR Examiner
• A Simple, Legal Way to Help Stop Employment Discrimination — from The Atlantic

Social Media & Workplace Technology

• Whom Do Social Media Followers Belong to—You, or Your Business? — from Knowledge@Wharton
• FireMe! app outs Twitter users who talk smack about their jobs — from Eric Meyer’s Employer Handbook Blog
• How To Stop Employers Digging Your Digital Dirt — from The Undercover Recruiter
• Social Media Rant by Employer Results in Retaliation Claim Added to Pending Litigation — from Michigan Employment Law Advisor
• BYOD plz — from HR idiot

HR & Employee Relations

• Hostile Environment: Porn in the Workplace – More Often Than We Know — from HR Gazette
• Being an Abusive Boss can get you Fined by OSHA — from Mike Haberman’s Omega HR Solutions
• Is It Unethical to Not Hire Smokers? — from Freakonomics
• Kim Jong-un in the workplace — from Michigan Employment Law Connection
• Should I Give References After Separation? — from Texas Employer Handbook
• Sometimes a “confidential” label doesn't hold up — from Work Matters
• Does your lawyer have to disclose your non-compete? — from Smooth Transitions

Wage & Hour

• The Dangers of Using Two Different Time Clocks — from Overtime Advisor
• How the Police Are Getting into the FLSA — from Compensation Café
• Pennsylvania Federal Court Decertifies FLSA Off-the-Clock Collective Action Against Citizens Bank — from Wage & Hour Counsel
• Obamacare for Employers in 87 Minutes — from Phil Miles’s Lawffice Space

Labor Relations

• Has The NLRB “Jumped The Shark”? — from Employment Essentials
• Court Overturns NLRB; Protects Company's Confidential Financial Information — from The Employment Beat
• Is There a Face-Off Under Way Over NLRB Decisions? — from Human Resource Executive Online

Photo credit: RustyTheDog (Own work) [CC-BY-SA-3.0 or GFDL], via Wikimedia Commons

The results are in: social media password survey

Last month, in response to the introduction of social media password legislation in the Ohio Senate, I posed a survey to gauge whether this is a problem that needs to be fixed, or an illusion created by the media.

Thanks to the hundreds who responded, I am happy to share my (very unscientific) findings, some of which are expected and some of which are surprising.

First, the not surprising. Employers are not engaging in this practice:

Has your company ever asked a job applicant or employee to provide the login or password to a social media or other online account?

• No: 90%
• Yes, an employee: 5%
• Yes, an applicant: 3%
• Yes, both: 1%

Have you ever been asked by an employer to provide the login or password to a social media or other online account?

• No: 95%
• Yes: 5%

Has your company ever denied employment, or fired an employee, because an individual refused to disclose the login or password of a social media or other online site?

• No: 98%
• Yes: 2%

It is fair to conclude that this supposed practice is not much more than an answer in search of a problem.

Nevertheless, despite the low incidence of these practices occurring, more than one-third of you still think we need this legislative answer to prohibit employers from requiring the disclosure of passwords and logins.

Do you believe that we need legislation to prohibit employers from asking or requiring individuals to disclose login or password information of social media and other websites?

• No: 64%
• Yes: 36%

How do I explain this apparent incongruence? Perhaps it’s the strong feelings that we hold about personal privacy, despite the very un-private nature of social media.

I believe that when one posts something online, that person forsakes any privacy he or she otherwise might have enjoyed in that communication. The majority of you, however, disagree:

Do you believe that employers have a legitimate interest in viewing social media accounts of job applicants before hiring?

• No: 71%
• Yes: 29%

Do you believe that employers have a legitimate interest in viewing social media accounts of employees during the term of their employment?

• No: 62%
• Yes: 38%

Do you believe that employees should have an expectation of privacy in what they post in their personal social media accounts?

• No: 45%
• Yes: 55%

As these survey results poignantly illustrate, there exists a tangible tension between the open nature of communications on social networks and personal privacy. It is going to be fascinating to watch these issues evolve over the coming years as the wall that separates the public and private continues to erode on social networks.

Can you hear me now? Unilateral deafness is not an ADA disability

I’ve long argued that 2009’s ADA Amendments Act changed the game for how employers defend disability discrimination cases. Because the ADAAA defines “disability” broadly, with the express goal of making it easy for employees to establish the existence of a protected disability, it is now exceedingly difficult for employers to win cases on summary judgment by arguing that an employee is not “disabled.” Here is the prediction and guidance I provided on this issue nearly two years ago:

Employers should give up hope that they will be able to prove that an employee’s medical condition does not qualify as a disability. Instead, employers should focus their ADA compliance efforts on the two issues that now matter in these cases: avoiding discrimination and providing reasonable accommodations.

Because every rule is defined by its exception, I bring you Mengel v. Reading Eagle Co. (E.D. Pa. 3/29/13) [pdf].

Christine Mengel worked as a copy editor and page designer for Reading Eagle. In 2007, she became deaf in one ear following successful surgery to remove a brain tumor. 18 months later, Reading Eagle terminated Mengel’s employment as part of reduction in force. She claimed that she was included in the RIF because of her disability—deafness in one ear.

The district court disagreed, concluding that Mengel could not proceed on her ADA claim because she was not disabled.

However, Ms. Mengel only provided evidence of hearing loss in one ear rather than bilateral deafness…. Ms. Mengel failed to present evidence that her hearing loss in one ear substantially limited her hearing. She testified that her deafness in her left ear was not a distraction, and she did not mention any specific instances where her hearing loss caused a problem other than that she “didn’t hear some things.”

It is refreshing to see that courts are still examining the merits of a claim of disability, instead of glossing over it and assuming that the ADA protects all medical conditions. This case is significant because it proves the exception—that a subset of diagnosed medical conditions exists that does not qualify as an ADA-protected disability.

The key takeaway for employers, though, is to know that this subset is very small, and act accordingly when presented with an employee suffering from a diagnosed medical condition.

Deploy the Girl-Scout-cookie offensive to ward off labor unions

NewsOK reports that some employers have started banning their employees from promoting their kids’ fundraisers at work. At least one story has gone viral about a mom fired for hawking her daughter’s Girl Scout cookies to coworkers:

Tracy Lewis … was called into her boss’s office while working as a retail service manager for Bon Appetit, which provides various food services to the American University campus. Lewis claims her boss told her she was being fired for selling the cookies for her 12-year-old daughter’s Girl Scout troop out of her food cart, even though Lewis says she has done so for the past three years with no reprimand. 

This reaction may not be as outrageous as you might think. In fact, there is a great legal reason to ban Girl Scout cookie sales and other similar solicitations in your workplace. As crazy as it sounds, it might prove to be one of your best weapons against a union organizing campaign. The catch is that you need both a sufficient broad no-solicitation policy, and the enforcement of it in a non-discriminatory manner.

A lawfully drafted and sufficiently broad no-solicitation policy prohibits anyone from soliciting during work time and in work areas. To the contrary, an overly restrictive policy would either ban union-related communications on its face, or operate to treat union-related communications differently than similar non-union solicitations.

The former is easy to spot. What does the latter look like?

Consider an employer with a strict no-solicitation policy that ignores Girl Scout cookie sales or March Madness brackets. If that employer disciplines an employee for engaging in union-related solicitations, has it enforced its no-solicitation policy discriminatorily?

The answer depends on whether the exceptions are so common that they swallow the rule, or are merely isolated incidents.

• For example, in United Parcel Service v. NLRB, the 6th Circuit concluded that because employees “routinely distributed such materials as fishing contest forms, football pool material, and information about golf tournaments,” the employer could not enforce its no-solicitation rule against union-related distributions.
• However, in Cleveland Real Estate Partners v. NLRB, the same court concluded permitting occasional and sporadic distributions did not demonstrate discriminatory enforcement of a no-solicitation rule.

I am immune the charms of the Girl Scout cookie. While I love a Thin Mint as much as next person, my son has Celiac Disease, so I avoid bringing into my home glutened treated that he can’t enjoy. For the rest of you, however, consider whether permitting your employees to sell cookies or engage in other innocent solicitations is worth the risk that if a union organization drive rears its head, you will be left powerless to engage one of your key weapons—the no-solicitation policy.

photo credit: nettsu via photopin cc

Congress enacts the Americans with No Abilities Act

According to a trusted news source, Congress has enacted the Americans with No Abilities Act:

The act … is being hailed as a major victory for the millions upon millions of U.S. citizens who lack any real skills or uses.

The ANAA will:

• Prevent discrimination again the non-abled.
• Provide corporations with tax incentives to hire non-abled workers.
• Create more than 25 million important-sounding “middle man” positions in the white-collar sector for non-abled persons.

Employers best ready their businesses and HR practices for this important piece of legislation.

(Happy April Fools’ Day)

WIRTW #267 (the “may the font be with you” edition)

I’m a font geek. When I read a brief that has been drafted in Times New Roman, I get mad. It’s lazy, I think, to use a font just because you can’t figure out how to hit Ctrl-D, pick one more pleasing to the eye, and then click the “Set As Default” button.

Typography for Lawyers agrees with me:

When Times New Roman appears in a book, doc­u­ment, or adver­tise­ment, it con­notes apa­thy. It says, “I sub­mit­ted to the font of least resis­tance.” Times New Roman is not a font choice so much as the absence of a font choice, like the black­ness of deep space is not a color. To look at Times New Roman is to gaze into the void.

For the record, any document you receive under my signature will have been written in Constantia.

In which font do you draft, or are you a lazy Times New Roman writer? Leave a comment below, or tweet your answer using the hashtag #LawyerFont

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

Discrimination

• Sex(y?) Discrimination in Vegas — from Workplace Prof Blog
• Handling Complaints of Harassment Made Against Non-Employees — from Labor & Employment Law Perspectives
• Can A Corporation Sue For Hostile Work Environment, Or What Is A “Making-The-Owners-Miserable” — from Employment Discrimination Report
• The one thing an employer can do to prevent pay equity claims that’s easy, cheap, and doesn’t involve lawyers — from Employment and Labor Insider
• Sexual orientation discrimination: be ahead of the curve — from Sindy Warren
• Mandatory Employee Medical Exams — from Phil Miles’s Lawffice Space

Social Media & Workplace Technology

• Donglegate: HR Gone Wild — from Blogging4Jobs
• Survey Says: Are Facebook Profiles Fair Game for Employers? — from EmployeeScreenIQ Blog
• Social media and nonsolicitation agreements — from Work Matters
• Do You Have A Social Media Will? — from The Mac Lawyer
• Social Media’s Real Legal Issues — from HR Examiner
• BYOD: What’s Your Policy? — from Attorney at Work
• Who Owns Your Online Persona? Re: Social Media and Employment Litigation — from The National Law Review

HR & Employee Relations

• Non-competes: HR’s version of the Prenup — from Steve Boese at Fistful of Talent
• How to Conduct a Termination Meeting that Won’t Invite a Lawsuit — from i-Sight
• Your Employees Are Stealing Your Data — from Molly DiBianca’s Delaware Employment Law Blog
• Why I Don’t Fire the Jerks — from Evil HR Lady, Suzanne Lucas
• The Importance of Documentation in HR — from Mike Haberman’s Omega HR Solutions
• Lies Your Employer Tells You — from Donna Ballman’s Screw You Guys, I’m Going Home
• You’ll Get Sued Over the Office March Madness Pool? — from New Jersey Employment Law Blog

Wage & Hour

• Key Wage-and-hour Language to Have in Your Employee Handbook — from SmartHR
• The Beginning of the End for Wage & Hour Class Actions Through Arbitration Agreements? — from Dan Schwartz’s Connecticut Employment Law Blog
• Actual Duties Define Exempt Status of Managerial Retail Employees and Precludes Class Certification — from Wage & Hour Defense Blog
• Worker Misclassification: A Tough Issue, and Getting Tougher Every Day — from Workplace Insights
• Did The Earth Just Move? Comcast Suggests Individual Damage Calculations Prevent Class Certification — from The Wage and Hour Litigation Blog
• Feeling “maybe overworked” is not an FMLA “serious health condition” — from Eric Meyer’s The Employer Handbook Blog
• FMLA FAQ: How Long Can an Employer Rely on a Second or Third Opinion under the FMLA? — from Jeff Nowak’s FMLA Insights
• Employee on FMLA leave fired for “moonlighting” — from EmployerLINC