Giving Employee the “Milton Treatment” Leads to Discrimination Claim

And I said, I don’t care if they lay me off either, because I told, I told Bill that if they move my desk one more time, then, then I’m, I’m quitting … I’m going to quit. And, and I told Dom too, because they’ve moved my desk … four times already this year, and I used to be over by the window, and I could see … the squirrels, and they were merry, but then, they switched … from the Swingline to the Boston stapler, but I kept my Swingline stapler because it didn’t bind up as much … and I kept the staples for the Swingline stapler and it’s not okay because if they take my stapler then I’ll have to … I’ll set the building on fire...

– Milton Waddams, Office Space

I love the movie Office Space. One of the movie’s best sub-plots involves Milton Waddams. Milton works for Bill Lumbergh, and is Lumbergh’s punching bag. Lumbergh belittles him, steals his red Swingline stapler, continuously reduces the size of his cube, and, ultimately, transfers him to a basement storage closet. All the while, Milton mumbles under his breath that he’s going to set the building on fire. True to his word, Milton ultimately gets his revenge by burning down the office.

Why am I telling you the plot of Office Space? Because, according to this story in the St. Joseph, Missouri, News-Press, a former employee of the Missouri Department of Transportation is alleging that the department discriminated against her because of her age by … are you ready … moving her out of her office and forcing her to work from a moldy storage closet.

While there are two sides to every story, generally it is a bad idea to react to an employee’s internal complaint about age discrimination by moving her workspace from an office to a storage closet. Milton earned his revenge by arson. This employee is seeking hers via the courts. Either way, giving any employee the Milton treatment, let alone doing so on the heels of a complaint about discrimination or some other protected activity, is a horrendous idea.

This post originally appeared on The Legal Workplace Blog.

Is this the worst fake doctor’s note ever? And what could you do about it?

Buzzfeed recently published the above note, which an employee provided asking his boss for a day off from work. Not only did the employer refuse the time off, but, as you can see above, the employer edited the note, remarked on all of the typos, errors, and misspellings, and returned it to the employee with the caption, “How NOT to fake a doctor’s note.”

Even though an employer might have every reason to believe that a doctor’s note is fake, an employer runs the risk of an FMLA violation by summarily denying time off without following the FMLA’s procedures for authenticating a medical certification.

Authentication

• The FMLA permits an employer to contact the medical provider who purported to provide the certification to authenticate the document.
• Authentication means providing the health care provider with a copy of the certification and requesting verification that the health care provider who signed the document completed or authorized it.
• An employer may not request any additional medical information.
• An employer must first provide the employee with the opportunity to authenticate the note.
• If, however, the employee fails or refuses, the employer, through a health care provider, human resources professional, leave administrator, or management official—but not the employee’s immediate supervisor—may contact the employee’s health care provider directly for purposes of authentication.

Second and Third Opinions

An employer who has reason to doubt the validity of a medical certification may require the employee to obtain a second (and possibly third) opinion:

• The second opinion must be at the employer’s expense.
• Pending receipt of the second opinion, the employee is provisionally entitled to all of the benefits of the FMLA, including intermittent leave. If the certifications do not ultimately establish the employee’s entitlement to FMLA leave, the employer then has the right to retroactively designate the leave as non-FMLA.
• An employer is permitted to designate the health care provider to furnish the second opinion, but the selected health care provider must be one that it does not regularly contract with otherwise regularly use the services of.
• If the opinions of the employee’s and the employer’s designated health care providers differ, the employer may require the employee to obtain certification from a third health care provider, again at the employer’s expense. This third opinion is final and binding.
• Upon request by the employee, an employer is required to provide the employee with a copy of the second and third medical opinions within five business days of such request.

Your gut instinct might say fire this employee, but following that instinct could get you in trouble under the FMLA if note turns out to be legit. Following the FMLA’s rules for authentication, and second and third opinions, will give you the legal ammo to fire the offending employee. In the meantime, place the employee on conditional FMLA leave, which is unpaid. A few weeks down the road, once you confirm that the note is inauththentic, you can fire the employee without having incurred much expense or burden in the interim (save a couple of medical exams if you have to go the route of second and third opinions).

For more on verifying FMLA leaves of absence, I recommend Jeff Nowak’s recent post on his FMLA Insights Blog, entitled, Is Your Employee Paying a Deception Service to Provide You a Fake Doctor's Note or FMLA Certification?

Instagram, Vine, and … the NLRB (uh-oh)

Are you concerned about the impact of micro photo and video sites such as Instagram and Vine on your workplace? For the past few months, Dan Schwartz, writing at his Connecticut Employment Law Blog, has been all over this issue, suggesting that in light of the growing popularity of these sites, now more than ever employers need social media policies, while also cautioning that the regulation of workplace photos and videos would be the next social media enforcement frontier for the NLRB.

It appears that Dan’s prediction was right on the money. Last week, the NLRB’s Office of General Counsel published an Advice Memorandum [pdf] (dated March 21, 2012, but, for reasons unknown, which sat unpublished for 16 months).

Among other issues, the memo took up the following prohibition in a supermarket chain’s social media policy:

Do not use any … photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval.

According to the NLRB Office of G.C., that policy is, on its face, an overly restrictive ban on employees’ rights to engage in protected concerted activity:

We further find that the portion of the rule prohibiting employees from photographing or videotaping the Employer’s premises is unlawful as such a prohibition would reasonably be interpreted to prevent employees from using social media to communicate and share information regarding their Section 7 activities through pictures or videos, such as of employees engaged in picketing or other concerted activities.

Amazingly, the only citation provided in support of this broad legal statement is a 22-year-old case, which held that an employee’s tape recording of a jobsite to provide evidence in a Department of Labor investigation is protected. Folks, there is a huge difference between recording something at work to gather evidence for a government investigation, and this.

The NLRB needs to allow employers to promulgate reasonable rules that protect their legitimate interests (e.g., confidentiality, or ensuring that employees are actually working during working hours), while protecting the rights to employees to engage in legitimate protected activity (e.g., complaining about discrimination or working conditions, or gathering evidence for a government investigation). Otherwise, the NLRB is attacking facially neutral policies because of an imagined parade of horribles that could never materialize, all the while making it exceedingly difficult for businesses to draft policies that establish reasonable baseline expectations for workers and management.

Hat tip: Labor and Employment Law Perspectives

“That guy” has a valid retaliation claim?

Every workplace has “that guy.” The employee who can’t quite seem to keep his mouth shut, who says inappropriate things, the one you know will someday lead to a harassment lawsuit. (Hint: If you can’t think of who “that guy” is in your workplace, it might be you).

Dunn v. Automotive Finance Corp. (M.D. Tenn. 7/2/13) is about “that guy,” but with a twist. “That guy” was Robert Dunn, a manager terminated by Automotive Finance Corp. for making inappropriate racially based comments during a social gathering following a training session. Present for Dunn’s alleged comments were four other white managers, along with one African-American assistant manager, Rick Hopkins. Several of those present complained about Dunn’s comments; the company investigated and fired Dunn.

Dunn was accused of making three racially insensitive comments:

• A comment that Tiger Woods was being judged by a white man’s standard, as compared to Michael Vick, who went to prison.
• A comment that his mother was Indian and not allowed to sit with White people back in the day.
• In reference to a statement that Hopkins would be the next manager at the company, Dunn said, “Good luck. Have you seen a family photo of this place?” and that the company had very few African-American managers “walking the halls.”

What was Dunn’s explanation when a co-worker expressed her discomfort at his statements? “That’s just how I am, because I’m a country boy.” When that same co-worker complained to management about Dunn’s comments; the company investigated and fired him.

Here’s the twist. Dunn sued for retaliation, claiming that Title VII protected his comment about a lack of upward mobility for African-Americans within the company. Incredibly, the court agreed that Dunn’s statement at least presented a question for a jury to determine as to whether that comment is protected from retaliation under Title VII.

Dunn made one comment or a set of comments that could reasonably be construed as protected activity: complaining in front of the Branch Managers that AFC discriminated on the basis of race with regard to promoting black managers. There are competing accounts as to precisely what Dunn said, although the witnesses who recall the incident appear to agree that Dunn accused AFC of being a racist company and/or that Dunn stated that AFC would not promote Hopkins because he is black…. The fact that Dunn made this comment in front of a black Assistant Branch Manager and that it made the white employees “uncomfortable” was just a side effect of speaking his mind that the company had and would continue to practice illegal racial discrimination.

The company argued that Dunn was merely seeking “to insulate himself from the consequences of [his] inappropriate conduct by concocting a post hoc rationalization that he had actually engaged in some form of ‘opposition’ activity.” I agree.

Cases like this one undermine the protections offered by the anti-retaliation laws, and send the wrong message to employers. The company fired Dunn because a co-worker complained about inappropriate race-based comments. The employer met is obligation under Title VII to investigate the allegations, and implement corrective measures to ensure that the comments stopped. Yet, the employer got punished for meeting its anti-harassment obligations. If the employer retained Dunn, it could have faced a potential harassment lawsuit. An employer should not have to choose between a harassment lawsuit by an offended employee, or a retaliation lawsuit by an alleged harasser who appears less than genuine in his “complaints.”

This case also is a perfect example of the maxim that any employee can sue at any time for any reason, and helps illustrate my point that because of the risk of lawsuits, employers are exceedingly gun-shy about firing employees.

photo credit: foreverdigital via photopin cc

WIRTW #281 (the "is it live or is it Memorex" edition)

Earlier this week, I appeared on Huffington Post Live, in a segment discussing discrimination laws, at-will employment, and the rights of employers to terminate employees. If you missed it live, here’s your chance to see me live and in Internet-buffered color:

Also, if you missed this month’s Employment Law Blog Carnival, hosted by Robin Shea, it is worth a trip down Route 66 to read the best employment-law posts from the past month.

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

Discrimination

• Roadmap for Responding to an Employee’s Request for Religious Accommodation — from Employment Law Lookout
• What Do You Mean I Can’t Ask That Question????!!!! — from The Emplawyerologist
• Boss fired breast-feeding mother: Was it pregnancy discrimination? — from HR Café
• Dear Evil Skippy: Was It Harassment For My Supervisor To Give Me A Massage? — from Evil Skippy at Work
• Court Resists “Irresistible” Employee’s Lawsuit... Again — from Phil Miles’s Lawffice Space
• Beware the Dark Side: “But For” Doesn’t Mean “Sole Cause” In Retaliation Claims — from Donna Ballman’s Screw You Guys, I’m Going Home
• What Exactly Does Vance v. Ball State University Mean to Employers? — from Employment & the Law

Social Media & Workplace Technology

• How 3 NFL players’ mea culpa will improve your social media policy — from Eric Meyer’s The Employer Handbook Blog
• You, Too, Can Move Your Company Into the Cloud — from Harvard Business Review
• What Are Your Rights to Life, Liberty and the Pursuit of Privacy? — from The Sociable Lawyer Blog
• Security is Key to “BYOD” Policies — from Pennsylvania Labor and Employment Law Blog
• BYOD: Do You Feel Lucky? Well, Do Ya Punk? — from Ride The Lightning
• Employers, Facebook, and the SCA Do Not a Love Triangle Make — from Molly DiBianca’s Delaware Employment Law Blog
• Service of Process Via Social Media – a Comparative Approach — from Augmented Legality
• What happens to your smartphone after it’s stolen — from The Verge
• Electronic media use policies must be applied evenly and consistently — from EmployerLINC

HR & Employee Relations

• Top Ten Things to Consider When Drafting A Non-Compete Agreement — from Trade Secrets & Non-Compete Blog
• Would You Hire Someone With a Visible Tattoo? — from hr bartender

Wage & Hour

• When using temps, make sure temp agency retains control of employment relationship — from Business Management Daily
• Why Interns Are Suing ‘Saturday Night Live,’ Hollywood, and Other Dream Employers — from Businessweek
• Sixteen Types of Wage & Hour Records Employers Need to Keep — from Dan Schwartz’s Connecticut Employment Law Blog

Labor Relations

• NLRB General Counsel Keeps Unfriending Employer Social Media Policies — from Employment Law Watch
• “Nuclear Option” Averted (For Now), NLRB Likely To Reach Full Strength Soon — from Labor Relations Institute
• NLRB Truth: 10 Reasons Why the National Labor Relations Board Matters — from Workplace Fairness
  
  
  
  
  
  
  
  
  
  
  

Ohio Supreme Court strikes blow to class action lawsuits

In recent terms, the U.S. Supreme Court has shown some hostility to class action lawsuits. 

• In Wal-Mart v. Dukes, the Court concluded that a district court must examine the underlying merits of a claim to determine if class certification is appropriate, and that a class must have some glue binding disparate decisions to justify certifying all of those decisions for consideration in one class. 
• In Comcast v. Behrend, the Court expanded upon Dukes by concluding that a class that requires individualized proof to establish damages for each class member cannot survive as a class action.

The impact of these two decisions might to send class litigants, if possible, to state court. Dukes and Comcast are federal decisions under Federal Civil Rule 23. If a state’s class-action-certification rules are more lenient, then the class’s attorney will do whatever it takes to keep the class in state court. 

Yesterday, however, the Ohio Supreme Court made this strategy much more difficult. Stamcco, LLC v. United Telephone Co. of Ohio [pdf], is not an employment case. It involves allegations of cramming — claims that the defendant added unauthorized charges the class members’ telephone bills. Yet, this case has huge implications for how all class actions are litigated under Ohio law, including classes alleging, for example, violations of Ohio’s employment discrimination or wage and hour laws.

With extensive citations to, and discussion of, Dukes, the Court held:

At the certification stage in a class-action lawsuit, a trial court must undertake a rigorous analysis, which may include probing the underlying merits of the plaintiff’s claim, but only for the purpose of determining whether the plaintiff has satisfied the prerequisites of Civ.R. 23.

Implicitly adopting the logic of Comcast, the Court also held:

We now recognize that the need for individualized determinations is dispositive in concluding that the class does not comport with Civ.R. 23.

Rejecting the plaintiff’s claim that a court could apply a simple formula to data provided by the defendant to determine each member’s claim, the Court concluded that this case cried out for individualized determinations:

Unauthorized third-party charges are better resolved on an individual basis with the third party or UTO. UTO’s phone bills identify third-party charges, the entity responsible for the charge, and a toll-free number for billing inquiries. Moreover, UTO claims that it has a policy of removing third-party charges for the purpose of maintaining good will with its clients. Finally, for larger charges or where the charge cannot be resolved over the phone, small-claims court is also an option. Accordingly, because ascertaining whether third-party charges are authorized will require individualized determinations, common issues do not predominate.

One could apply the same logic to wage and hour claims. If an employer has, for example an open-door policy, and will consider providing redress to employees on a case-by-case basis for complaints about missing wages, one cannot apply a simple formula to calculate class-wide damages. Moreover, while the plaintiffs’ bar will lose their minds over the idea of small-claims court, it remains a viable option for employees to inexpensively litigate their right to missing wages. The $3,000 limit for small claims will cover the vast majority of individual wage and hour claims.

Stamcco is a huge victory for Ohio businesses. It is now that much harder to establish a class action, confirming that Ohio’s class-action rules fall in line with their federal counterparts.

Who owns personal email on an employer-issued smartphone?

The following scenario is playing out in companies all over America. A company issues a smartphone to an employee. The company owns and pay for the device, but allows the employee to use the device for personal reasons, including accessing a personal email account, such as Gmail. The employee returns the phone, but does not first erase her personal email from the device. Is it legal for the employer, who owns and pays for the phone, to access the employee’s personal email account after the device’s return?

According to Lazette v. Kulmatycki (N.D. Ohio 6/5/13), the answer is no. In Lazette, the facts alleged are significantly worse than my fact-pattern above. After Lazette returned the phone, her supervisor, over the course of 18 months, surreptitiously read 48,000 of Lazette’s personal emails, including those involving her family, career, financials, health, and other personal matters.

The meat of the decision concerns whether the employer violated the Stored Communications Act (although Lazette also brought federal- and state-law wiretap claims, and common law claims for invasion of privacy and intentional infliction of emotional distress. The Stored Communications Act prohibits the unauthorized access of personal email and other Internet accounts. Think of it as an anti-wiretapping law for the Internet. The court refused to dismiss the Stored Communications Act claim, concluding that Lazette had pleaded sufficient facts in her complaint for the case to proceed to discovery. if you are at all interested in the SCA, what it covers, and how it works, I commend this case to your reading list.

Aside from the legal intricacies of the Stored Communications Act, this case raises important practical considerations about the risks companies are taking via the use of mobile devices at work. Smartphones aren’t going away. Indeed, if you’re anything like me, it’s become more of an appendage than a phone. So, how should companies manage the risks of these devices under increasing judicial scrutiny and application of the Stored Communications Act? Let me offer three practical tips:

1. Draft a policy. Under the Stored Communications Act, personal data is sacred. Telling employees that they do not have any expectation of privacy in company-owned mobile devices might not save you from a Stored-Communications-Act claim if one employee surreptitiously accesses another employee’s personal email account. For sure, have a policy that spells out an employee’s reasonable lack-of-privacy expectations, but have a similar policy statement prohibiting employees from accessing the personal email or other Internet account of others.
2. Wipe the device. Curiosity might have killed the cat, but you shouldn’t let it kill your company. Left to their own devices, people will snoop. Don’t give them the opportunity to do so. When a mobile device is returned by an employee, wipe it clean of all personal information and data.
3. But, quarantine it first. I suggest, however, that before you wipe a device you pause to make sure that you don’t need any data on the device. Once it’s wiped, it’s going to be very hard, if not impossible, to recover that data. Are there pending lawsuits for which data on that phone might be discoverable? If so, you better save it until you can determine what, if anything, needs to be preserved or produced. Are you concerned that the ex-employee might have been talking to a competitor or walked off with your trade secrets or other confidential or proprietary information? if so, you better check the phone to see if there is any evidence you can use to build your claim before you wipe it clean.

(Hat tip: Privacy & Information Security Law Blog)

The one thing you can never release in a settlement agreement

Legal disputes end in one of two ways—either with a judgment by a court or an agreement between the parties. The vast majority of cases follow the latter course.

When parties enter an agreement to settle a dispute—either in a settlement agreement ending litigation or a severance agreement ending one’s employment—the goal is to release all claims brought, or that could have been brought. An employer is paying the employee, in part, for the certainty that the employee will not file other claims against it in the future for past acts. Thus, these agreements typically contain general releases, along with covenants not to sue.

Do not, however, make the mistake of including in your agreement a covenant forbidding the employee from filing a discrimination charge with the EEOC or other agency. The EEOC will view such a provision as retaliatory under Title VII.

Last week, the Agency announced that it had reached a settlement with Baker & Taylor over claims that the company “violated Title VII by conditioning employees’ receipt of severance pay on an overly broad, misleading and unenforceable severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC.” The EEOC alleged that the company required employees “to sign a release agreement that could have been understood to bar the filing of charges with the EEOC and to limit communication with the agency” in order to receive their severance pay.

The offending provisions (taken from the EEOC’s Complaint) were as follows:

• “I further agree never to institute any complaint, proceeding, grievance, or action of any kind at law, in equity, or otherwise in any court of the United States or in any state, or in any administrative agency of the United States or any state, country, or municipality, or before any other tribunal, public or private, against the Company arising from or relating to my employment with or my termination of employment from the Company, the Severance Pay Plan, and/or any other occurrences up to and including the date of this Waiver and Release, other than for nonpayment of the above-described Severance Pay Plan.”

• “I agree that I will not make any disparaging remarks or take any other action that could reasonably be anticipated to damage the reputation and goodwill of Company or negatively reflect on Company.  I will not discuss or comment upon the termination of my employment in any way that would reflect negatively on the Company. However, nothing in this Release will prevent me from truthfully responding to a subpoena or otherwise complying with a government investigation.”

How could this problem have been avoided, while still providing the employer relative certainty that it will not have future legal dealings with the releasing employee? A simple disclaimer tacked onto the back-end of the release language, stating that nothing in agreement prevents, or is intended to prevent, the employee from filing a charge of discrimination with the EEOC, or with a state or local civil rights agency. You can couple that language with a covenant providing that in the event that the employee files such a charge, the employee disclaims the right to seek or recover money damages from such a filing.

With this language, the employee retains the right to file a charge (minus damages), the EEOC retains the right to seek redress of civil rights violations, and the employer retains peace of mind that the employee has signed as strong of a release as Title VII allows.

Fight the power! A timeless lesson on employee relations from "What's Happening!!"

As I settled in for a quiet Friday night in front of the TV, I stumbled upon one of my guilty pleasures — “What’s Happening!!” If your unfamiliar with this late 70s sitcom gem, it tells the story of three high-school friends growing up in the Watts section of Los Angeles, Raj, Dwayne, and Rerun, along with Raj’s pest of a little sister, Dee, their strong-willed single mom, Mabel, and the wise-cracking waitress at the local diner, Shirley.

The episode upon which I stumbled is called One Strike and You’re Out. It’s not as good as the classic “Doobie Brothers” episode, but, beggars can’t be choosers, right?

Here’s the synopsis, courtesy of Wikipedia:

Rerun being fired from the supermarket is the last straw for Raj, who rallies the rest of the workers to take some action against their boss Mr. Pronson. However, when the staff goes on strike, Raj finds himself in a jam, since Mama has lost her job and the family now has no source of income.

Enjoy this little slice of sitcom history, which teaches the important and timeless lesson that appearances aren’t always what they seem with your employees, what motivates their actions might not be what you think, and employees have lives outside of work that can, and often do, impact how they behave on the job.

Part One:



Part Two:

WIRTW #280 (the “has it been a year already” edition) #blawg100

The ABA Journal is, again, seeking nominations for its list of the 100 best legal blawgs, the “Blawg 100.” The nomination process is simple. Go here and answer a few simple questions touting your favorite blawgs. If you are so inclined, please take a few moments between now and August 9 to show some love for the blawgs you regularly read. If you take a look at this week’s list of links below, you’ll get a flavor for some the blawgs I’ll be nominating.

Also, I cannot let the week go by without giving a huge thank you to fellow blawger, Phil Miles, who, at his Lawffice Space blog, posted a review of my book, The Employer Bill of Rights. Phil’s words are much appreciated. The best compliment anyone can pay a lawyer is that you don’t write like a lawyer. Phil, from one to another, thanks.

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

Discrimination

• Is Obesity a Disability? — from WSJ.com: Law Blog [Thanks for the link to my earlier post]
• Obesity as a workplace disability? One court bucks the trend and says no. — from Eric Meyer’s The Employer Handbook Blog
• Gays And Lesbians Turn Fight To Workplace Discrimination Ban — from NPR’s All Things Considered
• No Brazilian Wax, No Job — from Phil Miles’s Lawffice Space
• An Employee Is Stealing Company Documents … That Can’t Be Protected Activity, Right? — from Trading Secrets
• The SCOTUS Decisions Every Employee Should Be Talking About — from Harvard Business Review
• Whole Foods Revises Its English-Only Policy — from Employer's Law Blog [background here]

Social Media & Workplace Technology

• Is a Candidate’s Profile Picture Worth a Thousand Words? — from EmployeeScreenIQ Blog
• The 2013 Social Media Landscape — from Social Media Today
• What Google Glass Means for Workplace Policy — from Mashable
• School board axes law firm after attorney’s viral video rant — from ABA Journal Daily News
• Are “Sent From My Phone” Signatures Useful or Annoying? — from Lifehacker
• Happy Birthday George Orwell, here's your surveillance society — from The Verge
• Common Law Invasion of Privacy Claims in Social Media — from Augmented Legality

HR & Employee Relations

• Restaurant Wars: Restrictive Covenants for Chefs & Tandoori Chicken Tikka — from Dan Schwartz’s Connecticut Employment Law Blog
• An Introduction to Background Checks for Employers — from ERC Insights Blog
• A cautionary tale about out‑of‑state telecommuting — from EmployerLINC
• Is bullying in the workplace legal? — from Mike Haberman’s Omega HR Solutions

Wage & Hour

• The Last Word: In Defense of Unpaid Internships — from Rick Bell at Workforce.com
• Supremes' DOMA decision may simplify some spousal FMLA administration — from Robin Shea’s Employment and Labor Insider
• The Questions to Ask Before Adopting an ESOP — from You’re the Boss Blog
• FLSA Status of Mortgage Loan Officers Remains Unsettled — from Minnesota Employment Law Report
• The “Fluctuating Work Week” — An FLSA Mirage — from New York Labor and Employment Law Report
• Are Mortgage Loan Officers Exempt or Non-Exempt? That's an Excellent Question. — from Wage & Hour Defense Blog
• Avoiding Court by Calculating “Regular Rate of Pay” the Right Way — from Blogging4Jobs
• Failing to Recognize an Employee's Need for FMLA Leave Can be A Costly, Painful Mistake — from Jeff Nowak’s FMLA Insights

Labor Relations

• Supreme Court to Consider Labor Issues Next Term — from Washington D.C. Employment Law Update
• Does Your Email Policy Pass Muster? New NLRB Decision Offers Guidance — from Labor & Employment Law Perspectives
• No Changing of the Guard: NLRB Continues to Uphold Policies Barring Union Use of Employer Email Systems — from Labor Relations Counsel
• NLRB: Employee’s Outburst In Calling Manager “Trouble” Not So Egregious As To Render Conduct Unprotected — from Labor Relations Update

The long and short of height discrimination under the ADA

A couple of week ago I wrote about why the ADA likely protects against obesity as a disability (thank you Wall Street Journal Law Blog for the linkage).

If the ADA is starting to protect physical characteristics such as weight, what about height? McElmurry v. Arizona Dept. of Agriculture (D. Ariz. 6/11/13) offers some guidance, and employers will not be happy about it.

Barbara Joy McElmurry, 4'10" tall, worked for the Arizona Department of Agriculture as a lab technician fighting the Asian citrus psyllid. Her job consisted of screening traps set by her co-workers in the field. Over time, tension developed between McElmurry and her supervisor, Mary Garman. After McElmurry threatened to file harassment charges against Garman, the supervisor accused her of sabotaging lab results and demoted her to field work. McElmurry demurred, protesting that at 4'10" she was too short to drive the vehicles necessary to do field work. Garman, however, forced the demotion. Ultimately, McElmurry was injured in the field, and Garman terminated her.

Among other claims, McElmurry sued her ex-employer for disability discrimination, claiming that the ADA protects her shortness of stature.

The district court refused to dismiss the disability discrimination claim, concluding that McElmurry had stated enough in her complaint for her disability discrimination claim to proceed to discovery:

McElmurry, however, has alleged that her height is outside the normal range. She stands around 4'10". The Department has claimed that height can never be a disability…. The Court is unable to make such a conclusion on the very limited record before it on this Motion to Dismiss. It is plausible that "short stature" could, in some contexts, "substantially limit[ ] one or more of the major life activities of an individual."

Typically, height is not a disability protected by the ADA. As this case illustrates, however, the ADA (as amended in 2009) is now sufficiently broad such that an employee can plausibly argue that a host of normal physical characteristics can become protected disabilities if they fall "outside the normal range." This case concerns height. But, it is not a stretch for one to imagine similar claims of discrimination based on other typical characteristics that fall outside the norm—weight, for example.

This case is a good illustration of how dangerous the ADA has become for employers, and how carefully businesses must tread when dealing with any physical or mental condition.

This post originally appeared on The Legal Workplace Blog.

6th Circuit’s definition of “supervisor” under the NLRA has broad implications

In Vance v. Ball St. Univ., the U.S. Supreme Court held that for purposes of vicarious liability for harassment under Title VII, a supervisor must have taken a tangible employment action (i.e., hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits) against the victim.

In footnote 7 to the opinion, the Court noted that the meaning of supervisor can vary depending on the federal statute being applied:

Petitioner argues that the NLRA’s definition supports her position in this case to the extent that it encompasses employees who have the ability to direct or assign work to subordinates.... The NLRA certainly appears to define “supervisor” in broad terms. The National Labor Relations Board (NLRB) and the lower courts, however, have consistently explained that supervisory authority is not trivial or insignificant: If the term “supervisor” is construed too broadly, then employees who are deemed to be supervisors will be denied rights that the NLRA was intended to protect.

Indeed, the NLRA applies a less strenuous definition than Title VII to determine supervisors status. The question is how much less strenuous.

In GGNSC Springfield LLC v. NLRB (7/2/13), the 6th Circuit concluded that charge nurses who have the authority to exercise their independent judgment to discipline subordinate employees are supervisors under the NLRA. In reaching this conclusion, the 6th Circuit rejected the Board’s argument that the power to discipline must involve an immediate suspension, termination, or other employment action:

The Board’s position on discipline is essentially that, to be considered “discipline,” the employee must suffer some immediate adverse employment action as a result of receiving an employee memorandum, such as suspension or termination, and because RN charge nurses cannot suspend or terminate a CNA’s employment unilaterally, they lack authority to discipline.... The term discipline must capture something less....

Generally, where an employer maintains a defined progressive discipline policy, and cited violations of company policy count toward the number of missteps permitted before termination, those with independent authority to issue the citations are supervisors....

The larger question is whether the RNs must consult with a superior and obtain approval before issuing a memorandum; if they must, their judgment is unlikely “independent.” The record shows that consultation and approval is neither required nor typical.

Thus, as a general rule, an employee who possesses sufficient authority to issue any disciplinary action (even warnings that could lead to later suspension or termination) without consulting with a superior, qualifies as a “supervisor” under the NLRA. The immediate decision need not result in a tangible employment action.

Make no mistake, this holding is significant. The NLRA does not cover or protect “supervisors.” Given the scope of the NLRA’s current agenda to further employees’ rights to engage in protected concerted activity, broadening the scope of who qualifies as a supervisor removes those employees from the Act’s protections. Thus, for example, a “supervisor” fired for complaining on Facebook about wages, benefits, or other goings-on in the workplace cannot claim that the termination violated the NLRA’s prohibitions against adverse actions for engaging in protected concerted activity.

In a political environment that is broadening the NLRB’s power, GGNSC Springfield’s broad interpretation of the definition of “supervisor” is a big win for employers.

Is your company looking at the wrong info to screen candidates using social media

According to recent survey by CareerBuilder.com (hat tip: The Employer Handbook Blog), 39 percent of companies use social media sites to research job candidates, up only two percent from last year. Yet, there was a nine percent jump (from 34 to 43 percent) in the number of hiring managers who report using information found on a social media site to disqualify a candidate from consideration.

Among the types of disqualifying information found on social media sites:

• Provocative/inappropriate photos/info — 50 percent
• Info about drinking or drug use — 48 percent
• Bad mouthing a previous employer — 33 percent
• Poor communication skills — 30 percent
• Discriminatory comments related to race, gender, religion, etc. — 28 percent
• Lying about qualifications — 24 percent

Interesting, North Carolina State University’s Journal of Cyberpsychology, Behavior, and Social Networking just published an article entitled, “Big Five Personality Traits Reflected in Job Applicants’ Social Media Postings.” According to a press release announcing the article’s publication, “Companies may have a fundamental misunderstanding of online behavior and, as a result, may be eliminating desirable job candidates.”

To compile data for the article, researchers tested 175 people to measure the personality traits that companies look for in job candidates (such as conscientiousness, agreeableness and extraversion), and then surveyed their Facebook behavior to link it to the specific personality traits.

The findings were eye-opening:

• There is no significant correlation between conscientiousness and Facebook posts about alcohol or drug use.
• Extroverts are significantly more likely to post about drugs or alcohol of Facebook.

In other words, the 48 percent of the companies in the CareerBuilder survey that reported disqualifying a job candidate because of social media posts about drinking or drug use may have done themselves a disservice. That disservice might be compounded if the position for which the company is hiring favors extroverted personalities (such as a sales position).

All is not bad news from the NC State survey. Study participants who rated high on both agreeableness and conscientiousness were also very unlikely to “badmouth” other people on Facebook, including their former bosses. So, the one-third of companies in the CareerBuilder survey who reported disqualifying a job candidate for bad mouthing a previous employer are likely making a good hiring decision.

Stats are just stats, and should not be taken as the bible on the issue on which they are reporting. Indeed, there are reasons other than agreeableness and conscientiousness for which a company might consider disqualifying a candidate who posts about drug use or drinking. For example, I would question the judgment of anyone posting any info or pictures of drug use, and question the judgment of active job seekers posting photos or other information on excessive drinking.

These two surveys, however, make for an interesting juxtaposition, and show that there might be some science behind how employers are using social media posts to screen applicants and hire employees.

Moreover, regardless of how you use the information you find online, the guidance for the process you should be using the obtain the information remains the same — companies need to ensure that the information upon which they are making hiring decisions is lawful, and that appropriate screens are in place to prevent protected information (such as EEO information) from leaking into the hiring process.

Why Paula Deen loves gay marriage

Lost amid the news of salacious allegations of workplace misconduct, historically bad depositions, a food empire going down in flames, and the meaning of the N-word in 2103 American society is the fact that the employee suing Paula Deen and accusing her of racial harassment is White. 

The fact a White employee is complaining about harassment against African-Americans, in and of itself, does not bar the plaintiff’s harassment claim. As the 6th Circuit held in Barrett v. Whirlpool Corp., a White employee can bring a lawsuit asserting racial harassment against an African-American co-worker, but only if the employee claiming the harassment was also discriminated against because of his or her race.  In other words, it’s not enough for the plaintiff in the Paula Deen case to show that Ms. Deen created a racially hostile work environment in her restaurant. She must also prove that Ms. Deen discriminated against her because of her race (White).

Last week, Ms. Deen’s lawyers supplemented an earlier-filed motion seeking the dismissal of, among other claims, the racial harassment claim. They claim that the plaintiff cannot seek the protections of Title VII because she is not claiming that she was discriminated against, but merely that a racially hostile work environment existed targeting other races.

In support of this argument, Ms. Deen cites to Hollingsworth v. Perry, the recent U.S. Supreme Court case that dismissed, on the basis of a lack of standing, the challenge to the illegality of California’s gay marriage ban. Ms. Deen claims that per Hollingsworth, the plaintiff lacks standing to claim racial harassment. Per Hollingsworth:

Article III of the Constitution confines the judicial power of federal courts to deciding actual “Cases” or “Controversies.” One essential aspect of this requirement is that any person invoking the power of a federal court must demonstrate standing to do so. This requires the litigant to prove that he has suffered a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision…. In other words, for a federal court to have authority under the Constitution to settle a dispute, the party before it must seek a remedy for a personal and tangible harm. “The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III’s requirements.”

In other words, Paula Deen argues that a White employee lacks standing to claim racial harassment against her African-American co-workers because she is not seeking a remedy for a harm personally against her.

Regardless of how the court decides this issue, employers should not use the standing issue as carte blanche to ignore certain harassment complaints. When an employer handles a harassment complaint, the race, gender, religion, national origin, etc. of the employee complaining should not matter. An employer should still investigate and take prompt and appropriate remedial measures to ensure that any harassment that occurred ceases.

The Constitutional argument raised by Paula Deen’s legal team is a nice weapon to have once you are in the thick of litigation, but following my practical tip will help keep you out of litigation in the first place.

Hat tip: Deadline

A reminder about holiday pay

Tomorrow’s July 4th holiday is a paid day off for many American workers. Last year, I wrote a post entitled, “8 things you need to know about holiday pay.” In light of tomorrow’s holiday, I thought it was a good idea to revisit that list.

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1. Do you have to pay for holidays? You are not required to pay non-exempt employees for holidays. Paid holidays is a discretionary benefit left entirely up to you. Exempt employees present a different challenge. The Fair Labor Standards Act does not permit employers to dock the salary of an exempt employee for holidays. You can make a holiday unpaid for exempt employees, but it will jeopardize their exempt status, at least for that week.

2. What happens if holiday falls on an employee’s regularly scheduled day off, or when the business is closed? While not required, many employers give an employee the option of taking off another day if a holiday falls on an employee’s regular day off. This often happens when employees work compressed schedules (four 10-hour days as compared to five 8-hour days). Similarly, many employers observe a holiday on the preceding Friday or the following Monday when a holiday falls on a Saturday or Sunday when the employer is not ordinarily open.

3. If we choose to pay non-exempt employees for holidays, can we require that they serve some introductory period to qualify? It is entirely up to your company’s policy whether non-exempt employees qualify for holiday pay immediately upon hire, or after serving some introductory period. Similarly, an employer can choose only to provide holiday pay to full-time employees, but not part-time or temporary employees.

4. Can we require employees to work on holidays?Because holiday closings are a discretionary benefit, you can require that employees work on a holiday. In fact, the operational needs of some businesses will require that some employees work on holidays (hospitals, for example).

5. Can we place conditions on the receipt of holiday pay? Yes. For example, some employers are concerned that employees will combine a paid holiday with other paid time off to create extended vacations. To guard again this situation, some companies require employees to work the day before and after a paid holiday to be eligible to receive holiday pay.

6. How do paid holidays interact with the overtime rules for non-exempt employees? If an employer provides paid holidays, it does not have to count the paid hours as hours worked for purposes of determining whether an employee is entitled to overtime compensation. Also, an employer does not have to pay any overtime or other premium rates for holidays (although some choose to do so).

7. Do you have to provide holiday pay for employees on FMLA leave? You have to treat FMLA leaves of absence the same as other non-FMLA leaves. Thus, you only have to pay an employee for holidays during an unpaid FMLA leave if you have a policy of providing holiday pay for employees on other types of unpaid leaves. Similarly, if an employee reduces his or her work schedule for intermittent FMLA leave, you may proportionately reduce any holiday pay (as long as you treat other non-FMLA leaves the same).

8. If an employee takes a day off as a religious accommodation, does it have to be paid? An employer must reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. One example of a reasonable accommodation is unpaid time off for a religious holiday or observance. Another is allowing an employee to use a vacation day for the observance.

Here comes the disclaimers. The laws of your state might be different. If you are considering adopting or changing a holiday pay policy in your organization, or have questions about how your employees are being paid for holidays and other days off, it is wise to consult with counsel. Also, these 8 tips assume that your company lacks a collective bargaining agreement.

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Friday, July 5 is also a paid holiday for me. WIRTW will not run this week, and will return on Friday, July 12, with WIRTW #280.

The FMLA, the ADA, and no-fault attendance policies

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues. These policies, however, carry, a certain degree of risk—namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy.

• In Green v. Wal-Mart Stores (S.D. Ohio 6/25/13), the district court denied the employer’s motion for summary judgment on an employee’s FMLA claim because the employer admitted to counting FMLA-days for purposes of progressive discipline under its no-fault attendance policy.
• In July 2011, the EEOC reached a $20 million settlement with Verizon Wireless over claims that the wireless company denied reasonable accommodations to disabled employees by disciplining or firing them pursuant to its no-fault attendance policy.

Employers have a lot to gain from no-fault attendance policies, both in ease of personnel management and certainty in attendance calculations. In deciding whether to adopt or continue a no-fault attendance policy,however, employers must carefully to balance those benefits against the risk of FMLA or ADA violations. Moreover, with a no-fault attendance policy in place, employers must be careful to train those responsible for administering the policy with the exceptions required by the FMLA and ADA for protected absences.

Today’s post is brought to you by the letters W, A, R, and N

Last week, CNNMoney reported that the Sesame Workshop is laying off approximately 10 percent of its employees. The layoff will not affect enough employees to trigger the WARN Act, the federal statute that governs advance notice for certain plant closing and mass layoffs. It does, though, provide a good jumping-off point for a short discussion about the WARN Act and its requirements.

WARN Act is shorthand for the Worker Adjustment and Retraining Notification Act. In general, it requires 60-day advance notice of either a plant closing or a mass layoff.

It covers all employers with 100 or more employees, not counting those who worked less than 6 months in the last 12, and those who work less than 20 hours per week. Even though short-term and part-time workers are not counted for purposes of determining WARN Act coverage, they still must receive notice if affected by an otherwise qualifying plant closing or mass layoff.

For purposes of WARN Act notice, a plant closing is the shut-down of an employment site that will result in an employment loss for 50 or more employees during over 30-day period.

The WARN Act covers a mass layoff that will result in an employment loss at the employment site during any 30-day period for 500 or more employees, or for 50-499 employees if they make up at least 33 percent of the employer’s active workforce.

An employment loss for purposes of the WARN Act means either (1) a termination, other than a discharge for cause, voluntary departure, or retirement; (2) a layoff longer than 6 months; or (3) a reduction in an employee’s hours of work of more than 50 percent in each month over any 6-month period.

The WARN Act requires employers to provide 4 different notices—to the affected employees, to the employees’ union representative (if any), to the State dislocated worker unit, and to the chief elected official of the unit of local government. The Act’s regulations detail the information that must be included in each notice.

An employer who violates the Act by closing a plant or affecting a mass layoff without providing sufficient notice is liable to each aggrieved employee for back pay and benefits for the period of violation, up to a maximum of 60 days. An employer can reduce its liability, however, by paying employees during the period of the violation. For example, if an employer is worried about employee sabotage after announcing a layoff, the employer can lay off the employees immediately and pay in lieu of providing the WARN notice.

The Act provides exceptions for faltering companies, unforeseeable business circumstances, and natural disasters that, if met, would excuse an employer from providing the 60-day written notice required by the WARN Act.

If you are near or above the WARN Act’s 100-employee threshold, and you are considering closing a plant or laying off a large number of employees, it behooves you to check with employment counsel to determine whether the WARN Act will be triggered, and, if so, what specific notices you must provide and to whom.

photo credit: Looking Glass via photopin cc

WIRTW #279 (the “stand your ground?” edition)

Having recently settled a nasty harassment case on the day of trial, I read with great interest Molly DiBianca’s post, Why Employers Settle Lawsuits, at her Delaware Employment Law Blog. One of the key reasons Molly provides to consider settlement is the employer’s ability to return to normal:

Often times, employers find that the most attractive part of settlement is the ability to put an end to the drain on resources that litigation absolutely involves. Litigation is costly in attorney’s fees and other expenses. But there are other critical costs, too, including the time key decision makers must devote to the case and the general distraction that it causes in the workplace. Every hour spent in depositions and discovery is an hour that cannot be devoted to achieving the organization’s objectives. I’ve never had a client who didn’t take a deep sigh of relief once the case was resolved and they realize they’re able to return to running their business.

Molly’s thoughtful post is worth reading by any business facing the decision of whether to stand its ground and litigate, or move on and settle.

I’ve also previously covered this issue, in Fight or flight? When an employee sues you, should you litigate or settle?

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

Discrimination

• Vance v. Ball State: the press miscoverage begins — from Walter Olson’s Overlawyered
• Are Employers Racist for Conducting Employment Background Checks? — from employeescreenIQ Blog
• The Government Checks Criminal Records. Why Can’t Private Employers? — from Forbes
• When a hostile work environment isn’t a hostile work environment — from Eric Meyer’s The Employer Handbook Blog
• Breast Feeding on the Job — Is a Mother Protected? — from Maryland Employment Law Developments
• What Not To Do When An Employee Is Pregnant — from Employer’s Corner Blog
• Q&A: Five Areas of Employment Discrimination Law Sparking Scholarly Interest — from Bloomberg BNA
• The Employment Non-Discrimination Act might actually pass in 2013 — from Employment Law Bits
• Paula Deen, Racism and Employment Lawyers — from The Cynical Girl

Social Media & Workplace Technology

• Facebook Introduces Instagram Video Which Promises New Social Media Headaches for Corporations — from from Technology Law Source
• Can You Control Your Employees’ LinkedIn Profiles? — from Evil HR Lady, Suzanne Lucas
• “Tweet” becomes an official word — from Ragan
• The Five Rudest Things You Can Do Online — from Wall Street Journal
• Laid-Off ESPN Employee Of 26 Years Fights Back On Facebook — from AOL Jobs

HR & Employee Relations

• Can I fire an employee by phone or email? — from Ask a Manager
• The Internal Struggle When We Must Make Make Ridiculous Terminations — from TLNT
• The New Rules of Tattoos In the Workplace — from The HR Capitalist, Kris Dunn
• How to “Listen In” to Workforce 2.0 — from Fox Business
• Rogue Employees - What to do? — from Smooth Transitions

Wage & Hour

• If Unpaid Interns Don’t Like Their Bosses, They’ll Hate Justice Alito — from Above the Law
• Smartphone Overtime: The FLSA Knows No Bounds — from Corporate Counsel
• The Perils of “Rewarding” FLSA Exemption — from Compensation Force
• Why the New Internship Ruling is Bad For College Students — from Inc.
• Employer Obligations Under the Affordable Care Act — from Inhouse Blog
• How Does the Fall of DOMA Impact the FMLA and Other Employee Benefits? — from Jeff Nowak’s FMLA Insights

Labor Relations

• The Next Frontier for NLRB: Videos & Photos in the Workplace? — from Dan Schwartz’s Connecticut Employment Law Blog
• Union 2.0: how a browser plug-in is organizing Amazon's micro-laborers — from The Verge
• SCOTUS to Decide Noel Canning (NLRB Recess Appointments) — from Phil Miles’s Lawffice Space
• Cheat Sheet: A guide to the NLRB recess appointment controversy — from Inside Counsel

Happy 75th Birthday, FLSA

75 years ago yesterday, President Franklin D. Roosevelt signed the Fair Labor Standards Act. By establishing a minimum wage, setting an overtime premium for any hours worked in excess of 40 in any week, and creating child-labor protections, the FLSA is one of the most important pieces of employment legislation ever enacted.

In the 75 years since its passage, the FLSA has morphed into one of the most confounding statutes with which employers must comply.

To celebrate the FLSA’s Diamond Jubilee, please take a walk through 10 of my greatest wage-and-hour hits from the archives (in no particular order):

1. Taking issue with the term “wage theft”
2. We ♥ our phones, but should employees be paid for using them off-duty?
3. Are employers screwing up the FLSA’s lactation mandate? Probably not.
4. The 5 little words that will cause your company a huge headache
5. SCOTUS rules pharmaceutical reps are exempt outside salespeople
6. “Eat Shop Sleep” underscores the importance of proactively addressing wage and hour issues
7. “If I could press a button and instantly vaporize one sector of employment law?”
8. Paying overtime to salaried, non-exempt employees
9. Administrative employees vs. the administrative exemption
10. The ticking time bomb of overtime

 

 

Vance v. Ball St. narrows employer liability for harassment

In its prologue to yesterday Supreme Court opinion in Vance v. Ball. St. Univ. [pdf], Justice Alito, writing for the five-member majority, frames the importance of the issue facing the Court:

Under Title VII, an employer’s liability for such har­assment may depend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action, the employer is strictly liable. But if no tangible employ­ment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the em­ployer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unrea­sonably failed to take advantage of the preventive or corrective opportunities that the employer provided. Under this framework therefore, it matters whether a harasser is a “supervisor” or simply a co-worker.

Ultimately, the Court held that to qualify as a supervisor for purposes of vicarious liability for harassment, one must be able to impart a “significant change in [the] employment status” of the plaintiff:

An employer may be vicariously liable for an employee’s unlawful harassment only when the em­ployer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “sig­nificant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a signifi­cant change in benefits.”

Make no mistake, this is a huge victory for employers. Vicarious liability for unlawful harassment is a huge problem for employers. It means that that if the unlawful harassment occurred, the employer is liable, whether or not it knew about it, should have known about, or even took efforts to stop it from occurring. This case limits that vicarious liability only to those are in an actual position to affect the plaintiff’s terms and conditions of employment/

The majority made it clear that it was drawing this bright line to aid parties embroiled in harassment litigation:

The interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervi­sor, and in others, the alleged harasser’s status will be­ come clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolv­ing the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.

In other words, the court’s bright-line rule is meant to weed out for resolution those cases in which vicarious liability exists. As Kevin Russell correctly pointed out at SCOTUSblog, these cases “will provide judges greater authority to prevent the case from getting to a jury in the first place.”

To ensure that employers avail themselves of the benefits of this decision as often as possible, it is best that businesses review organizational charts, chains of authority, and job descriptions. Businesses should spell out, in detail, those supervisors who have the authority to effect a “sig­nificant change in employment status.” They should also spell out which supervisors have the express authority to hire, fire, demote, or reassign which employees. Businesses should spell out which supervisors lack that authority. By establishing clear chains of authority, employers will place themselves in the best position to limit the risk of vicarious liability.

The importance of Vance as a win for employers cannot be understated. When you couple this decision with the Court’s retaliation decision in Nassar, it’s fair to say that yesterday, employers had their best day in recent memory at the Supreme Court.