Is your wellness program discriminatory?

It is no secret that health care costs for employers and their employees are out of control in this country. Many employers have attempted to hold down these rising costs by offering wellness-program incentives — insurance premium reductions to employees who meet certain health-related incentives such as tobacco-use cessation, BMI goals, or minimum cholesterol levels.

Yesterday, however, the Obama administration made these wellness incentives more difficult for employers to implement. Pursuant to the Affordable Care Act, the administration issued final regulations on Incentives for Nondiscriminatory Wellness Programs in Group Health Plans [pdf].

Among other restrictions, these regulations require companies to provide “reasonable alternatives” to employees who cannot meet health benchmarks but still want the discounts. The regulations further clarify that this “reasonable alternative” standard is different than an ADA-required reasonable accommodation, and providing a reasonable alternative to achieve a wellness-program incentive does not mean that an employer has met its obligations under the ADA. Note that earlier this month, the EEOC held a public meeting discussing the treatment of employer wellness programs under the ADA.

These new rules will affect all group health plans for plan years beginning on or after January 1, 2014.

If you are among the many of employers that has implemented a wellness program, these regulations are required reading to ensure that your program meets these new nondiscrimination rules.

(an)G(el)INA

The Earth stopped rotating on its axis earlier this month when Angelina Jolie announced that she is undergoing a voluntary double mastectomy. Her rationale? Because she carries the BRCA1 gene, she is 87 percent likely to contract breast cancer at some point in her life.

Have you heard of GINA, the Genetic Information Nondiscrimination Act? As Phil Miles points out on his Lawffice Space blog, Ms. Jolie “just became the poster-child for GINA.”

Among other things, GINA prohibits employers from:

• making an employment-related decision with respect to an employee because of genetic information; or
• requesting or requiring that an employee disclose their own genetic information, or that of a family member.

It is fortuitous for the EEOC that Ms. Jolie has done so much to raise the profile of genetic profiling, since earlier this month, that agency announced that it settled the very first case it ever filed alleging genetic information discrimination. In its lawsuit, the EEOC alleged that the employer violated GINA when it asked an employee for a family medical history as part of its post-offer pre-employment medical examination. The EEOC’s press release quotes EEOC Regional Attorney Barbara Seely, “Although GINA has been law since 2009, many employers still do not understand that requesting family medical history, even through a contract medical examiner, violates this law.”

Ms. Seely is correct. Even though GINA has been law for more the four years, it is seldom discussed or understood. Employers need to take this lesson to heart. Genetics—both an employee’s and that of one’s family members—is off limits in employment.

Photo by Georges Biard [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

This post originally appeared on The Legal Workplace Blog.

There are no magic words to invoke the FMLA

The Family and Medical Leave Act does not require an employee to use the word “FMLA” to request leave under, and invoke the protections of, the FMLA. Instead, an employee only needs to do the following:

• For foreseeable leave, an employee only needs to provide “verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave.”

• For unforeseeable leave, an employee only needs to provide “sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request.”

In either instance, this informal notification triggers an employer’s designation obligations under the FMLA.

How vague can verbal notice by an employee be to trigger an employer to consider the notice a request for FMLA leave? In Wiseman v. Awreys Bakeries LLC (6th Cir. 5/22/13) [pdf], the plaintiff, an employee with a history of back problems, verbally complained that he was “injured” and “couldn’t work.” The company fired him for unexcused absences, claiming that he provided no explanation or medical reason.

The appellate court reversed the trial court’s dismissal of the FMLA claim, finding that an issue of fact existed over whether the employee provided FMLA-qualifying notice. The court held that the employee’s verbal statement that he was “injured” and “couldn’t work,” coupled with the company’s knowledge of his history of back injuries and the employee’s request to see the company’s doctor, could lead a jury to conclude that the employee had invoked the FMLA.

Cases like Wiseman should rarely happen. The FMLA provides protections for employers who, in good faith, doubt whether the FMLA covers an employee’s request for time off. When there exists any doubt over whether an employee is seeking time off for a reason that could qualify under the FMLA, there is no harm in treating the request as one for FMLA leave. In fact, an employer has greater protection in an FMLA-covered scenario than not.

• If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

• If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools  to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

photo credit: ShellyS via photopin cc

“Fire me. … Make my day” does not equal protected concerted activity (thank god)

The Rolling Stones famously sang, “You can’t always get what you want.” One employee recently got exactly what she wanted (and needed) from her employer, yet filed a claim anyway. After taking to Facebook and pleading to be fired, she sought the help of the NLRB, claiming that she had been fired in retaliation for protected concerted activity. Thankfully, the NLRB concluded that she should not be entitled to proceed with her case.

In a group discussion with some co-workers, the employee said the following about her employer:

“They are full of shit … They seem to be staying away from me, you know I don’t bite my [tongue] anymore, FUCK … FIRE ME. … Make my day…”

When an annoyed colleague took a print-out of the rant to management, the disgruntled employee was fired.

Earlier this month, the NLRB Office of General Counsel issued an advice memo [pdf], opining that a termination under these circumstances is legal, and recommended the dismissal of the unfair labor practice charge:

In the instant case, the Charging Party’s comments merely expressed an individual gripe rather than any shared concerns about working conditions. … These comments merely reflected her personal contempt …, rather than any shared employee concerns over terms and conditions of employment. Thus, although her comments referenced her situation at work, they amounted to nothing more than individual “griping,” and boasting about how she was not afraid to say what she wished at work.

Even the NLRB had no sympathy for this devil of any employee. An employee who begs to be fired cannot seek satisfaction when her employer takes her up on her offer.

This case illustrates that a line of reasonableness does exist between protected concerted conversations about working conditions and a lone wolf spouting off at the mouth. Thankfully, the NLRB is not always a beast of burden for employers.

Regardless of the employer’s victory in this case, however, businesses should still tread carefully when considering terminating an employee for speech (online or offline) about working conditions. The NLRB remains active in this area, and a mis-step could prove costly (especially in light of Lafe Solomon’s recent re-nomination as general counsel of the NLRB).

For more on this case, you can read the following:

• Eric Meyer’s Employer Handbook Blog — Employee posts “FIRE ME…Make my day…” on Facebook. And guess what?
• Employer Law Report — When Employee Taunts Employer via Facebook to “FIRE ME. ...Make my day…” NLRB Memo Concludes the Employer Can Go For It

WIRTW #275 (the “reality bites” edition)

Last night, Fox debuted its new reality show, Does Someone Have To Go?, which Entertainment Weekly bills as Survivor meets The Office. Here’s the premise:

 

Needless to say, the New York Times is not impressed, unflatteringly calling the show “a victory” for companies and horrible for employees:

The squabbles are petty, ill-informed and sometimes personal, and seemingly dredge up unacknowledged tensions around race and age…. The stakes, as they are presented, are dramatic. For signing up to be on this show, employees … run the risk of conflict, humiliation and, possibly, unemployment. (Presumably, these workplaces are not unionized.)

As for me, I was glued to the TV, and will be through this show’s run. Yet, I couldn’t help but think about the scope of the release agreement these employees had to sign before appearing on the show.

Did you watch? Share your opinion in the comments below, or on Twitter with the hashtag #WorkplaceReality

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

Discrimination

• Dear Evil Skippy: Was It Harassment For My Boss To Talk My Underwear? — from Evil Skippy at Work
• When an Employer Provides More Parental Leave to Mom than Dad, is this Gender Discrimination? — from FMLA Insights
• Sixth Circuit Upholds Summary Judgment for Employers in Two Cases Brought by Terminated Pregnant Employees — from Employer Law Report
• EEOC: no post-offer inquiries about family medical history — from Overlawyered
• Inquiring about Family Medical History Violates Genetic Information Nondiscrimination Law — from Maryland Employment Law Developments
• Pointers on avoiding Diabetes Discrimination — from Mike Haberman’s Omega HR Solutions
• Lawffice Links - New EEOC Publications Galore! — from Phil Miles’s Lawffice Space
• EEOC talks employer wellness programs; provides an ADA Q&A — from Eric Meyer’s The Employer Handbook Blog
• A sanctions award in EEOC v. Spitzer, the “don’t have your lawyer investigate” case — from Warren & Associates Blog

Social Media & Workplace Technology

• The Latest Social Media Concern for Employers — from WSJ.com
• Can an LLC member violate the Stored Communications Act by accessing other members’ email? — from Internet Cases
• Using Computer Forensics to Investigate IP Theft — from Law.com
• SMBs embrace BYOD, but slow to manage mobile devices — from ZDNet
• Act On Clarifying Ownership of Work-Related Social Media Accounts Before You Become “Dinner” — from Dan Schwartz’s Connecticut Employment Law Blog
• Sitting on Big Data: The Evolution of the Mobile Workplace — from Innovation Insights

HR & Employee Relations

• Do You Know the Seven Factors That Comprise “Just Cause”? — from Trade Secret / Noncompete Blog
• What About Office Romances? — from Evil HR Lady
• The Price Of Being Pregnant at Work — from HuffPost Live
• Debunking The 'No Friends At Work' Rule: Why Friend-Friendly Workplaces Are The Future — from Forbes
• Bullying bosses beware: Your targets may undermine you — from Minding the Workplace

Wage & Hour

• USDOL "Misclassification" Focus Continues — from Wage and Hour Laws Blog
• W.H.D.?: Here We Go Again … Independent Contractors Targeted Once More — from The Wage and Hour Litigation Blog
• 8th Cir: FLSA Plaintiffs Must Spell It Out — from Molly DiBianca’s Delaware Employment Law Blog
• Proposed Overtime Legislation Passes House, Faces Uphill Battle in Senate — from Impact Litigation Journal
• Wages, Salaries & Overtime – Oh My! 4 Myths About Employee Pay — from TLNT

Labor Relations

• NLRB takes aim at employer electronic communications and social policies — from EmployerLINC
• Senate Committee Approves President’s Nominations to the NLRB — from Wyatt Employment Law Report
• It’s a Little Too Little: Is The NLRB Headed Towards Irrelevance? — from Employment Essentials

Until next week:

(Bonus points if you know the link between the new wave hit My Sharona, by The Knack, and this post.)

When state law conflicts with the EEOC on criminal background checks, who wins?

Last year, the EEOC issued its long awaited Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. While the Guidance was much more fair and balanced than many employer advocates (me included) expected, it does include some head-scratchers for businesses. One such conundrum is how regulated employers are supposed to act when across-the-board criminal background searches are required by state law, as the EEOC takes the position that a blanket requirement violates Title VII.

Per the EEOC:

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with records of certain criminal conduct. Unlike federal laws or regulations, however, state and local laws or regulations are preempted by Title VII if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII. Therefore, if an employer’s exclusionary policy or practice is not job related and consistent with business necessity, the fact that it was adopted to comply with a state or local law or regulation does not shield the employer from Title VII liability.

How is an employer supposed to handle this conflict? Waldon v. Cincinnati Public Schools, currently pending in the Southern District of Ohio, may provide some future guidance.

That case concerns the application of Ohio H.B. 190, which became law in 2007. That law requires criminal background checks of all current school employees, regardless of whether their duties involve the care, custody, or control of children, and mandates the termination of any employee with a certain number of historical convictions, regardless of the convictions’ age.

Two African-American employees challenge that H.B. 190 has an unlawful disparate impact because of race. Both were terminated based on decades-old convictions. All told, the Cincinnati Public Schools fired 10 employees as a result of background checks conducted pursuant to H.B. 190; nine of the 10 fired were African-American.

It is early in the litigation of the Waldon case. The court denied the employer’s motion to dismiss.

First, it concluded that it was clear that the Plaintiffs pleaded a prima facie case of disparate impact.

Although there appears to be no question that Defendant did not intend to discriminate, intent is irrelevant and the practice that it implemented allegedly had a greater impact on African-Americans than others.

The existence of statistically significant disparate impact, however, if only the first step in the analysis. An employer can avoid liability if the challenged practice is justified by business necessity. While the court believed this issue to be “a close call,” it ultimately concluded that it could not make that call on a motion to dismiss:

Obviously the policy as applied to serious recent crimes addressed a level of risk the Defendant was justified in managing due to the nature of its employees’ proximity to children. However, in relation to the two Plaintiffs in this case, the policy operated to bar employment when their offenses were remote in time, when Plaintiff Britton’s offense was insubstantial, and when both had demonstrated decades of good performance. These Plaintiffs posed no obvious risk due to their past convictions, but rather, were valuable and respected employees, who merited a second chance.… Under these circumstances, the Court cannot conclude as a matter of law that Defendant’s policy constituted a business necessity.

Talk about a tough position in which to place an employer. Does the employer violate state law or violate Title VII? Ultimately, I think the correct answer should be neither. Shouldn’t the need to follow state law provide the employer’s “business necessity?” If not, employers will be faced in the untenable position of following one law and violating the other.

photo credit: kevin dooley via photopin cc

This post originally appeared on The Legal Workplace Blog.

Email surveillance as evidence of retaliation

Employees should not operate under any false ideas that they enjoy an expectation of privacy in their work email accounts. Just because an employer has the right to snoop through an employee’s email, however, does not mean the practice does not carry some degree of risk.

Consider, for example, Fields v. Fairfield County Board of Developmental Disabilities (6th Cir. 12/6/12). Fields claimed that her employer retaliated against her after it discovered an email she sent to some co-workers threatening a lawsuit against the Board. The court concluded that the email surveillance was insufficient evidence of pretext.

Simple enough? What if, however, the claim was that the company only started watching her email after it learned of the protected activity, and used evidence of misconduct in the email to support the termination decision. Could the email surveillance, in and of itself, be an adverse action sufficient to support a claim of retaliation? The legal standard for an adverse action sufficient to support a claim of retaliation is very broad. Anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” qualifies as a retaliatory adverse action. If you don’t regularly review employee email accounts, and only start examining an employee’s electronic activities after that employee engages in some protected activity, might that dissuade others from engaging in protected activity?

If you are going to enforce a policy or exercise some employer right (like surveillance of corporate email or computer systems), do it consistently, not selectively and only after an employee complains about discrimination. Otherwise, you could change a legal and reasonable act (e.g., email surveillance) into evidence of unlawful retaliation.

Social media is the digital water cooler

Let’s say your business is located in a less-than-desirable neighborhood. Three of your employees engage in the following conversation on their personal Facebook pages:

Holli Thomas — needs a new job. I’m physically and mentally sickened.

Vanessa Morris — It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime we try to solve conflicts NOTHING GETS DONE!! …

Vanessa Morris — And no one’s doing anything about it! Big surprise!

Brittany [Johnson] — “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris — hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) see you tomorrow!

Can you fire these three employees? If you answered yes, you just bought yourself an unfair labor practice charge with the National Labor Relations Board, at least according to Bettie Page Clothing (4/19/13) [pdf]. Per the NLRB:

The Facebook postings were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns. The employees also discussed looking at a book about the rights of workers in California so that they could determine whether the Respondent was violating labor laws. Such conversations for mutual aid and protection are classic concerted protected activity.

Social media is today’s water cooler. Employees still might gather around the lunch table or coffee machine to gossip about work, but they are also just as likely, if not more likely, to carry over those conversations outside of the workplace through their personal social media accounts. If you wouldn’t fire an employee for a water-cooler conversation you happen to overhear, then don’t fire them for a similar conversation on a Facebook wall. In fact, you are much worse off with the social-media-based termination because the employee has a digital paper trail with which to hang you.

Employees gossip with and gripe to each other. Instead of firing these employees, maybe you need to look inward to figure out if their concerns are legitimate, and if there is something you can do about it.

[Hat tip: Employer Law Report]

Fired for suing an ex-employer? Court rejects public policy claim

Carcorp hired Barry Elam to work in its finance department. A few months into his employment with Carcorp, Elam sued his prior employer, Bob McDorman Chevrolet, claiming that it had wrongfully fired him in retaliation for his cooperating with an investigation by the Ohio Attorney General into fraudulent credit applications. A year later, Carcorp fired Elam.

Elam then sued Carcorp, claiming that it wrongfully fired him in retaliation for his lawsuit against his prior employer, in violation of Ohio’s public policy.

In Elam v. Carcorp, Inc. (4/23/13), the appellate court affirmed the trial court’s dismissal of Elam’s wrongful discharge claim.

For the uninitiated, some background on wrongful discharge in violation of public policy claims under Ohio law. These claims act as an exception to the presumption of at-will employment permitting a claim when an employee is discharged or disciplined for reasons that contravene a clear public policy. To establish a claim that an employer wrongfully discharged an employee in violation of public policy, the employee must demonstrate all of the following:

1. A clear public policy existed and was manifested in a state or federal constitution, statute or administrative regulation, or in the common law.
2. Dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy.
3. Conduct related to the public policy motivated the plaintiff’s dismissal.
4. The employer lacked overriding legitimate business justification for the dismissal.

After an extensive analysis of Elam’s claimed public policy—the Open Courts provision in the Ohio Constitution—the appellate court rejected Elam’s public policy claim, on the basis that “Elam did not articulate any clear public policy that his termination from employment violated.”

In the final analysis, Elam did not demonstrate the Open Courts provision represents a clear expression of legislative policy barring an employer from discharging an employee as a result of the employee’s lawsuit against a third party. To hold otherwise would expand the public policy inherent in the Open Courts provision beyond the provision's clear meaning and infringe upon the legislature's duty to make and articulate public policy determinations.

While academically interesting, this case raises a more interesting practical consideration. These “public policy” retaliation cases often hinge on the creativity of plaintiff’s counsel to find a legislative or constitutional hook on which to hang the alleged public policy, and the court’s willingness to approve of the creativity. Indeed, the more creative the public policy, the more unpredictable the outcome of potential litigation. For this reason, employers should treat all employees complaining about anything in the workplace as ticking time bombs, as if their complaints are protected by some law or another. If a court later rejects a public policy claim, all the better.

WIRTW #274 (the “Dunder Mifflin” edition)

Last night brought us the final episode of what may be the greatest ever satire of the American workplace—The Office. Seinfeld, that is how you do a series finale.

In its honor, I bring you one of my favorite clips from my favorite episodes from show’s nine-year run, Diversity Day. If this doesn’t make your employment law skin crawl, nothing will:

 

Here are 59 other reasons we’re going to miss The Office.

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

Discrimination

• Want to cut the line at the Disney park? Call my disabled friend — from Walter Olson’s Overlawyered
• “Bashful Bladder” As A Disability? Running Water The Accommodation? — from Employment Discrimination Report
• Horniest boss ever? His employee still can’t prove sexual harassment — from The Employer Handbook Blog
• Angelina Jolie and Employment Law — from Phil Miles’s Lawffice Space
• Bad Credit Could Cost You a Job — from Nolo’s Employment Law Blog
• EEOC Brings, Settles First Ever GINA Lawsuit — from Employer’s Law Blog 
• “My Prior Complaint Was One of the Reasons for the Adverse Employment Action”: Mixed Motive Theories for Retaliation Claims Under Title VII — from HR Defense Blog

Social Media & Workplace Technology

• Social Media By the Numbers — from Social Media Strategies Summit Blog
• How Can You Avoid Lawsuits While Using Social Media to Screen Applicants? 10 Steps to Consider — from The Emplawyerologist
• Social media and nonsolicitation agreements — from Technology for HR

HR & Employee Relations

• Asking to telework when you have your period — from Ask a Manager
• Should these employees have been terminated? Tell us what you think! — from Robin Shea’s Employment & Labor Insider
• Try Acting More Like a Kindergartner — from Evil HR Lady writing at Inc.com
• Dear Evil Skippy: Can I Refuse To Hire Someone With Tattoos? — from Evil Skippy at Work
• Hipster Bias > Another HR Hurdle? — from Fistful of Talent
• Fired For Voicing My Concerns — from Work Place Coach Blog News
• Using Standard Form Employee Handbooks; Damned if You Do, Damned if You Don’t — from damnedif
• Here’s Why Bullies Are Taking Over Your Organization — from TLNT

Wage & Hour

• To Be Or Not To Be An Independent Contractor — from San Antonio Employment Law Blog
• Congressional Roundup: Republican Comp Time Bill Gets a Vote — from Bloomberg BNA
• “They Owe You” Does Not Always Mean You Can Withhold — from Trade Secret / Noncompete Blog
• FLSA Compliance: Dispelling the Great Myths — from HR Daily Advisor
• Employers Play Whack-A-Mole with Internship Lawsuits — from The Wage and Hour Litigation Blog
• Is Time Spent Traveling to Trainings Outside of Normal Working Time — from Smart HR Manager

Labor Relations

• “The N.L.R.B.’s Contested Poster” — from How Appealing
• Senate Republicans Call for Hearing on NLRB's Budget Request — from Wisconsin Employment & Labor Law Blog

Patriots cutting of diabetic player raises serious ADA issues

The New England Patriots recently cut defensive tackle Kyle Love. This news is not worthy of consideration on an employment law blog until I tell you the reason the Pats cut him. According to FoxNews, the Pats cut him two weeks after his diagnosis with Type 2 diabetes out of a concern over his “recovery time.”

If I’m Kyle Love’s agent, I’m finding him the best employment lawyer possible to argue that the Patriots cut him because of his diabetes, a protected disability.

Yesterday, the EEOC conveniently published guidance on the employment rights of people with specific disabilities. One of the specific disabilities for which the EEOC published new guidance is diabetes.

According to the EEOC, there is little doubt that diabetes is a disability protected and covered by the ADA:

As a result of changes made by the ADAAA, individuals who have diabetes should easily be found to have a disability within the meaning of the first part of the ADA’s definition of disability because they are substantially limited in the major life activity of endocrine function. Additionally, because the determination of whether an impairment is a disability is made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin, medication, or diet controls a person’s blood glucose levels. An individual with a past history of diabetes (for example, gestational diabetes) also has a disability within the meaning of the ADA. Finally, an individual is covered under the third (“regarded as”) prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of diabetes or because the employer believes the individual has diabetes.

Given the timing of the Patriots’s decision, coupled both with its apparent failure to offer any kind of accommodation for Kyle Love’s disability, and the stated reason for its decision, Kyle Love appears to have a strong disability discrimination case. Had the Patriots called me, I would have counseled against cutting him, at least at this time and in this manner.

Consider Kyle Love’s problem in light of this hypothetical, provided by the EEOC in its diabetes guidance:

When an actor forgets his lines and stumbles during several recent play rehearsals, he explains that the fluctuating rehearsal times are interfering with when he eats and takes his insulin. Because there is no reason to believe that the actor poses a direct threat, the director cannot terminate the actor or replace him with an understudy; rather, the director should consider whether rehearsals can be held at a set time and/or whether the actor can take a break when needed to eat, monitor his glucose, or administer his insulin.

It is an understatement to characterize this termination—undertaken without any apparent consideration of whether the team could accommodate the diabetes—as high risk.

Jeffrey Nye made me aware of this story on Twitter last night, and asked, “The Patriots cut Kyle Love because he has diabetes. How can they do that?”

They can’t (or at least shouldn’t be able to in the manner in which they did it). It would not surprise me in the least if, given the high profile nature of this employment decision, the EEOC takes up Kyle Love’s cause to further its mission of disability-rights awareness.

Employee vs. independent contractor: do you know the difference

Employers take a risk when they classify someone performing services for them as an independent contractor instead of an employee. Because employers owe contractors far fewer obligations than employees, employers risk each of the following if a court determines that a mis-classification occurred:

• Unpaid overtime.
• Unpaid taxes.
• Un-provided benefits.
• A discrimination claim, or claims under other laws that protect employees but not contractors (i.e., the FMLA).

Do you know, however, how to spot the difference? Troyer v. T.John.E. Productions, Inc. [pdf], decided yesterday by the 6th Circuit, provides some insight.

The issue in the case was whether the company failed to pay overtime to three individuals who performed road crew services (setting up and breaking down displays) at the company’s collegiate and corporate events. The court determined that the company had mis-classified them, and owed them unpaid overtime as employees:

Plaintiffs testified that their working relationship with Defendants was relatively permanent, they worked hundreds of hours of uncompensated overtime over several months, and that Defendants exercised strict control over their schedule and day-to-day activities while out on the road. Defendants countered that Plaintiffs worked on a job-by-job, independent contractor basis, that the Plaintiffs had a great amount of autonomy regarding how they completed their work.

In determining whether an worker is an employee or an independent contractor, the IRS looks compares the degree of control exerted by the company to the degree of independence retained by the individual. Generally, the IRS examines this relationship in three ways:

1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)
3. Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

If you are considering classifying someone performing services for you as an independent contractor, your answers to these three questions will determine whether that individual is a bona fide contractor, or instead, is a employee. When in doubt, err on the side of caution. The government applies these tests aggressively to find employee-status whenever it can. You should too, and the risks are too high to make a mistake.

How much does it cost to defend an employment lawsuit?

Last Friday I had the pleasure of appearing on Huffington Post Live, in a segment entitled, “You’re Fired! No really.” We discussed the current state of employment at-will, and whether American workers need greater protections from being terminated without just cause.If you’ve read my blog for any length of time, you know what I have some pretty strong feelings on this topic. Heck, I’ve even written an entire book on this issue of employer rights.

If you missed the show, you can watch it here, or in the imbedded video below:

Following my appearance, Texas plaintiff-side employment lawyer Chris McKinney tweeted that he was surprised at my statement that it could cost a company $250,000 to defend an employment lawsuit:

Chris was responding to my comment that the myriad laws that already protect employees from arbitrary or capricious terminations (Title VII, ADA, ADEA, FMLA, etc.), coupled with the threat of defending an expensive lawsuit, serve as enough of a deterrent to most reasonable employers from firing an employee without a good reason.

The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment (which, much more often than not, is the case), the employer can expect to spend a total of $175,000 to $250,000 to take a case to a jury verdict at trial.

Most employers, if acting rationally, will chose to retain an employee instead of assuming the risk of a $250,000 legal bill with an uncertain outcome. Moreover, employers cannot avoid this risk simply by settling every claim that is filed, lest the company risk the perception of being an easy mark by every ex-employee.

If you must terminate an employee, however, the safest, most prudent course of action is to offer a severance package—but only in exchange for a waiver and release of claims, and covenant not to sue—for all terminated employees except those terminated for some egregious or intentional misconduct. By offering severance in exchange for a release, you are capping your exposure and buying off the risk of a costly, time consuming, and burdensome lawsuit.

Cruise-ing for a lawsuit: EEOC sues company for forced practice of Scientology

The EEOC has filed against a Miami, Florida, medical service provider, alleging that it has violated Title VII’s religious discrimination provisions by forcing its employees to practice Scientology. According to the agency’s lawsuit, Dynamic Medical Services required its employees, as a condition of their employment, to spend at least half their work days attending Scientology courses.

The EEOC’s complaint [pdf] details the bizarre job requirements, which included:

• Screaming at ashtrays.
• Staring at someone for eight hours without moving.
• Undergoing a “purification audit” by connecting to a Scientology religious artifact known as an “E-meter.”

Employees who refused to participate in the Scientology religious practices, or conform to Scientology religious beliefs, were terminated.

If any of the EEOC’s allegations in the lawsuit are true, the agency is going to have an easy time winning this case, which serves a good reminder that an employer cannot force its employees to conform to, follow, or practice, the employer’s chosen religious practices and beliefs.

Hat tip: Lowering the Bar

photo credit: Rob Sheridan via photopin cc

WIRTW #273 (the “NLRB, fuggetaboutit” edition)

Remember those posters explaining employees’ rights under the National Labor Relations Act that the NLRB wanted all employers (union and non-union) to post. Well, earlier this week, the D.C. Circuit Court of Appeals issued a broad ruling striking down the NLRB’s posting requiring as a violation both of the NLRA’s “free speech” provision and the 1st Amendment of the Constitution. Bravo D.C. Circuit. Here’s some of the commentary on this case from around the blawgosphere:

• Another Bad Day in the DC Circuit for the NLRB — from Jottings By An Employer's Lawyer
• Breaking: No NLRB Union Posters, Says Appeals Court — from Dan Schwartz’s Connecticut Employment Law Blog
• D.C. Circuit Strikes Down NLRB Notice Rule — from Workplace Prof Blog
• DC Circuit Strikes Down NLRB Poster Requirement — from Phil Miles’s Lawffice Space

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

Discrimination

• EEOC Announces Enforcement Priorities — from Maryland Employment Law Developments
• Is your company a target of the EEOC? — from Employment and Labor Insider
• Sexual Harassment Complaints By Males On The Rise: 2012 EEOC Enforcement and Litigation Statistics — from Outten & Golden Employment Law Blog
• Knock knock. Who’s there? The EEOC… — from Warren & Associates Blog
• 10 Reasons To Negotiate Instead Of Suing The Bastards  — from Negotiation Law Blog
• Should Employees Sign A Waiver To Protect Employers: “I Agree Not To Engage In Wild Sex On A Business Trip?” — from Employment Discrimination Report
• When an Employee Says: I’m Gay — from HR Examiner with John Sumser
• Sexual Orientation – Is Conduct Discrimination or Stereotyping? — from HR Gazette
• Pregnancy Disability Discrimination a KEY Target of EEOC — from Mike Haberman’s Omega HR Solutions

Social Media & Workplace Technology

• Rewriting the Employee Handbook for Social Media — from InhouseBlog
• Protecting Privacy or Enabling Fraud? Employee Social Media Password Protection Laws May Clash with FINRA Rules — from Privacy Law Blog
• Should Employers Ask Candidates for Their Facebook Passwords? — from employeescreenIQ Blog
• History of Terminations & Firings Because of Employee Social Media — from Blogging4Jobs
• Patchwork of Social Media Password Protections Laws Impacts Employers — from Digital Workplace Blog

HR & Employee Relations

• Employee Handbook Haiku — from Minnesota Employer
• Doctor Non-Solicitation Agreement Not Supported By Legitimate Business Interest — from Trade Secrets and Noncompete Blog
• Bullying in the Workplace: All Eyes on NBC — from Minnesota Labor & Employment Law Blog
• Beyond Words: How Generation Y is Redefining Learning For Everyone — from TLNT
• Is Your Company’s Customer List Still A Trade Secret If Your Company Uses Labeled Delivery Trucks? — from Trading Secrets
• Shocking examples of sexism in 1960s corporate newsletters — from Ragan.com
• Why You Shouldn’t Try to Match Yahoo’s Fabulous New Maternity Leave Policy — from Evil HR Lady, Suzanne Lucas
• The don of donut discipline — from PassiveAggressiveNotes.com
• Paid Sick Leave Has Some Business Owners Feeling Ill — from You’re the Boss Blog

Wage & Hour

• Wage Hour Lawsuits Continue to Skyrocket — from The Wage and Hour Litigation Blog
• California Federal Court Relies on Comcast to Deny Class Certification of Off-The-Clock and Meal Period Claims — from Wage & Hour Counsel
• DOL Audits Will Rise With New Funding Increases — from Wage & Hour - Development & Highlights

Labor Relations

• Fact or Fiction: It’s ok to fire an employee for pro-union Facebook posts to NON-employees — from Eric Meyer’s The Employer Handbook Blog
• The Union Is Knocking at My Door: What Can I Say? — from Labor & Employment Law Perspectives
• NLRB Continues to Get in Your Facebook — from Trade Secret / Noncompete Blog
• Being Tricked into Firing an Employee is Not a Defense – More From the NLRB on Facebook Firings — from netWORKed Lawyers
• NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act — from Management Memo

Debunking myths of a pro-business Supreme Court

Conventional wisdom says that the current iteration of the United States Supreme Court is pro-business. In support of this position, Adam Liptak penned an article in Sunday’s New York Times, arguing that the Court led by Chief Justice John Roberts is the most business-friendly since World War II. A recent study published in the Minnesota Law Review [pdf] by Judge Richard Posner of the 7th Circuit Court of Appeals, University of Chicago economist William Landes, and University of Southern California law professor Lee Epstein (h/t ABA Journal) makes the same argument, albeit in painstaking law-review detail.

In employment cases, however, the realities of the court’s rulings have often bucked this conventional wisdom. Repeatedly, this Court had sided with the employee in cases deciding substantive individual rights under the various federal anti-discrimination statutes:

• Crawford v. Metropolitan Gov’t of Nashville — Retaliation for participating in internal discrimination or harassment investigations
• Staub v. Proctor Hospital — The cat’s paw: holding employers liable for the discriminatory animus of non-decision-makers
• Kasten v. Saint-Gobain Performance Plastics Corp. — Protecting oral wage and hour complaints under the FLSA’s anti-retaliation provision
• Thompson v. North American Stainless — Protecting oral wage and hour complaints under the FLSA’s anti-retaliation provision
• Hosanna-Tabor Evangelical Lutheran Church and School — Allowing non-ministerial employees to sue religious organizations for discrimination

Mr. Liptak recognizes, “Employees suing over retaliation for raising discrimination claims have fared quite well, for example.” Yet, much of the rest of his nearly 3,000-word opus takes the Court to task for its pro-business leanings.

The most insightful comment in the entire Times article is courtesy of Case Western Reserve School of Law Professor Jonathan Adler, who notes that the distinction is not one between business and the individual, but instead between enforcing established rights versus creating new ones. Per Professor Adler, the Roberts Court has not been “particularly welcoming to efforts by plaintiffs’ lawyers to open new avenues of litigation, but it has not done much to cut back on those avenues already established by prior cases.”

Professor Adler is correct. Those who take too great of a license to brand this Court as pro-business are ignoring the Court’s protections of key individual liberties in employment decisions. In procedural matters, this Court has, time and again, sided with the employer (Genesis Healthcare: offers of judgment mooting wage and hour collective actions; Comcast v. Behrend: the scope of class actions for claims seeking individualized damages; AT&T Mobility v. Concepcion: the enforceability of arbitration agreements). These are procedural cases. In cases deciding the application of already established rights, such as the right to be free from retaliation by one’s employer, the Court, over and over, sides with the employee.

There are still two key employment cases pending this term—Vance v. Ball St. Univ., which will decide the meaning of “supervisor” under Title VII, and University of Texas Southwestern Medical Center v. Nassar, which will decide the proper causation standard for retaliation claims under Title VII. These two rulings will help determine this Court’s developing legacy as either pro-individual or pro-business in deciding employment cases.

You’d think we’d all know the dangers of “reply all” by now

Is there any more helpless feeling in today’s business world than sending an email, and then immediately realizing that you made a mistake? The biggest cause of an emailer’s stomach sinking through the floor—”reply all.” We’ve all had it happen. This story from the Toronto Star explains how a reply-all mistake brought one company an expensive wrongful discharge lawsuit:

Maria Fernandes … accidentally received an email discussing whether or not she should be fired.

Court documents allege that Linda Guerin, the company’s Director of Operations intended to send the email to the company’s lawyers. Too late she realized Fernandes was also on the list and she unsuccessfully sent three recall notices. She also sent an email to Fernandes asking that she delete the message without opening it.

Fernandes read it, treated the information in the email as a constructive dismissal and hired a lawyer. She had worked for the company for over six years and was earning $145,000 a year.

This case is a great reminder that a mis-addressed email can cost employers dearly in a wrongful discharge lawsuit. Other reply-all risks include the disclosure of trade secrets and other confidential information.

How do you protect against this problem affecting your business? The Toronto Sun article discusses some add-ons for Outlook that will either remove the “reply all” button or require an extra confirming step to use it.

Technology, however, will only mask the symptoms. It will not cure your workplace of this problem. To really attack the problem, you need to educate and train your employees.

• Do you train your employees on proper email etiquette, including when to use (and, more importantly, not use) “reply all?”
• Do you teach your employees to proofread entire emails carefully before they click “send,” including double-checking the “to,” “cc” and “bcc” boxes?

Taking issue with the term “wage theft”

Lately, I’ve read a lot of blogs that accuse employers of committing rampant wage theft (e.g., here, here, and here).

I have a huge problem with the term “wage theft.” It suggests an intentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not.

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better.

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win.

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft statutes that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation.

In my most recent book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law, I summarized this issue best:

Congress enacted the FLSA during the great depression to combat the sweatshops that had taken over our manufacturing sector. In the 70 plus years that have passed, it has evolved via a complex web of regulations and interpretations into an anachronistic maze of rules with which even the best-intentioned employer cannot hope to comply. I would bet any employer in this country a free wage-and-hour audit that i could find an FLSA violation in its pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive….

I am all in favor of employees receiving a full day’s pay for a full day’s work. What employers and employees need, though, is a streamlined and modernized system to ensure that workers are paid a fair wage.

Big verdicts might grab headlines, but it’s the final judgment that counts

I never thought I’d read about a case in which I could say to myself, “A $240 million jury verdict doesn’t seem all that out of whack.” Then I read about the EEOC’s recent $240 million jury verdict against Henry’s Turkey Service. The agency alleged that the farm subjected its 32 mentally disabled workers to decades of abuse:

The EEOC’s press release describes the horrible working conditions to which the turkey processing plant subjected these individuals:

Specifically, the EEOC presented evidence that for years and years the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.

Verbal abuses included frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  The Henry’s Turkey supervisors, also the workers’ purported caretakers, were often dismissive of complaints of injuries or pain.

Robert A. Canino, regional attorney of the EEOC’s Dallas District Office, which tried the case, … told the jury that Henry’s Turkey treated the men “like property.” … Canino urged the jury to think of the “broken lives of 32 hard-working but vulnerable intellectually disabled men” who were employees of Henry’s Turkey.

For more background on the Henry’s Turkey labor camps that this case helped bring to an end, I recommend this story from the Des Moines Register, which includes a timeline summarizing the camps’ 40-year history. In this context, the $7.5 million awarded to each of the 32 disabled employees ($5.5 million in compensatory damages, on top of another $2 million in punitive damages) begins to look more reasonable.

While the $240 million verdict is historically large (he biggest ever obtained by the EEOC), ultimately it will only serve as a symbol of the cruelty these 32 men endured. As the Des Moines Register articles points out, Henry’s Turkey’s assets cover less than two percent of the total verdict. Additionally, the Civil Rights Act of 1991 caps these non-economic damages, depending on the size of the employer:

• For employers with 15 – 100 employees, damages are capped at $50,000.
• For employers with 101 – 200 employees, damages are capped at $100,000.
• For employers with 201 –  500 employees, damages are capped at $200,000.
• For employers with more than employees, damages are capped at $300,000.

Thus, Henry’s Turkey maximum exposure for non-economic damages is $9.6 million.

Perhaps the lesson that employers should take away from this horrible story is that a verdict is only the first step in a plaintiff attempting to remedy a wrong. A verdict is simply the jury’s unfiltered opinion about what those eight people think the case is worth. That opinion, however, is not the final say; it is still subject to the law. A judge can lower the amount because of damage caps or for some other reason. A judge can take away the entire verdict by entering judgment notwithstanding the verdict for the defendant, or by ordering a new trial. A court of appeals can find some error in the case and reverse the judgment. Moreover, even if some or all of the verdict survives to a final judgment on which a plaintiff can execute, the plaintiff still has to be able to collect. A multi-million judgment against an insolvent defendant is not worth more than the paper on which it is printed.

We put so much effort into, and place so much emphasis on, the jury verdict that we can lose sight that often it is merely the end of the first act of a much longer play. The verdict might grab headlines, but for a defendant, the war is not over until the final judgment is entered.

WIRTW #272 (the “sensual harassment” edition)

We’ve all heard of sexual harassment. But, have you heard of “sensual harassment?”

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

Discrimination

• No, I am not from the Midwest. Sex Discrimination Lives On — from Molly DiBianca’s Delaware Employment Law Blog
• Third Circuit says VIPs cannot sue for Title VII discrimination — from Eric Meyer’s The Employer Handbook Blog
• Initial Discovery Protocols in Discrimination Cases: A Connecticut Update — from Dan Schwartz’s Connecticut Employment Law Blog
• First Circuit Rejects Age Discrimination Claim Based on Isolated Comment — from Employer’s Law Blog
• Sexual Harassment Complaints By Males On The Rise: 2012 EEOC Enforcement and Litigation Statistics — from Outten & Golden Employment Law Blog
• Ostracism and petty mistreatments may collectively rise to the level of hostile work environment — from Employment Law Matters
• Bills Would Extend Workplace Protections to LGBT Employees — from Washington D.C. Employment Law Update
• What It Takes To Win An Age Discrimination Suit — from Forbes

Social Media & Workplace Technology

• New Jersey Federal Court Issues Sanctions For Deletion of Facebook Profile — from Trading Secrets
• FireMe! App rescues tweeting employees from own indiscretions? — from Employment Law Worldview
• Time for those six second “selfies” with latest Vine update — from TiPb
• Twitter: A Sleeping Discovery Giant? — from Law.com
• The Mayo Clinic and Healthcare Social Media — from SocialFish
• The “Employee Tricked Me Into Firing Her” Defense — from Social Media Employment Law Blog
• NLRB Issues Facebook Firing Decision — from Phil Miles’s Lawffice Space
• “Catfishing” Gets Its First Legal Mention — from The Not-So Private Parts
• If a Tweet falls in the forest — from iFractal

HR & Employee Relations

• Workplace Violence, Part 2: Crisis management tips for employers — from Robin Shea’s Employment & Labor Insider
• When Uncle Sam calls your employees, what do you do – and not do? — from HR Cafe
• Alcohol Testing in the Workplace: An Employer’s Dilemma — from i-Sight Investigation Software Blog
• An Observation on Work-Life Balance — from Blogging4Jobs
• Paid Sick Leave Has Some Business Owners Feeling Ill — from You’re the Boss Blog
• The don of donut discipline — from PassiveAggressiveNotes.com

Wage & Hour

• DOL Audits Will Rise With New Funding Increases — from Wage & Hour - Development & Highlights
• Eighth Circuit Holds Plaintiffs Must Provide Evidence of Actual Damages Even when Employer Doesn't Keep Accurate Time Records — from Wage & Hour Counsel
• “Comp Time” Proposal: Be Careful What You Wish For — from Wage and Hour Laws Blog
• The Unpaid Internship Dilemma: Everyone Loses in This Crackdown — from TLNT