Happy 10th Anniversary to my best friend

Ten years ago today, I married my best friend. To celebrate, enjoy this “greatest hit” from the archives — Accommodating religions starts at home (a love story).

Private eyes, they’re watching you…

No one likes the idea of a workplace in which managers keep a constant eye on employees. Workers find it creepy, and it’s not as if ambitious managers clawed their way up the ladder just to snoop on their underlings all day. Still, much of the surveillance now takes place electronically—in theory, freeing bosses to focus on other matters while monitoring software keeps everyone in line. So office spying isn’t going away.

So says this article on Businessweek.com, which nevertheless concludes that “electronic surveillance in the workplace is strikingly effective,” citing a survey [pdf] jointly conducted by professors at Washington University, BYU, and MIT.

I’m pretty sure, however, the type of workplace surveillance noted in a lawsuit filed by the EEOC falls on the creepy side of the line, as opposed to the effective. From the EEOC’s press release:

According to the EEOC’s lawsuit, between March and July 2010, Davis Typewriter Company’s operations manager commandeered the company’s security camera system to stream hours of footage of former employee Tracey Kelley’s breasts and body onto his office computer.

Surveillance and privacy have been hot topics of discussion of late. How you handle these issues in your workplace will depend, in large part, on how you want your employees to perceive  you as an employer—as a partner in trust, or as a distrustful watchdog.

Rather than watching everyone, the more prudent course of action is only to watch when an employee gives you a reason to do so. Do you have reason to believe an employee is stealing from you? Then watch that employee. Do you think an employee is fraudulently using FMLA leave? Then watch that employees. Do you believe an employee is leaking secrets to a competitor? Then watch that employee.

To watch everyone, however, without reason, leads to “distrust, conformity, and mediocrity,” three traits to which you should not want your employees to strive, and which will not help you run a successful business.

Life imitating art? Pregnant and fired — when will employers learn?

The Ohio Chamber of Commerce brings us this funny video about how not to fire pregnant employee:

Sadly, life sometimes imitates art.

Last week, the EEOC announced that it had sued a Mississippi hotel operator for … you guessed it … pregnancy discrimination:

According to the EEOC’s suit, Te’Shawn Harmon informed her manager of her pregnancy on her first day of work.  That evening, the manager terminated Harmon and replaced her with a non-pregnant employee.

Ugh. Some call it stupidity. I like to think of it as job security.

Litigation publicity as an adverse action for retaliation

Ray v. Ropes & Gray LLP [D. Mass. 8/16/13) [pdf] teaches a valuable lesson about what can go wrong when a dispute between an employer and a former employee goes public.

John Ray is a former associate of Boston white-shoe law firm Ropes & Gray. When the firm passed him over for partner, he first filed an EEOC discrimination charge, and then a lawsuit, claiming that the firm had illegally passed him over for partner. After Ray leaked to a legal blog a copy of an EEOC probable-cause finding on his retaliation claim, the blog sought comment from Ropes & Gray. The firm responded by providing a copy of an earlier EEOC no-probable-cause finding—which the blog published, and which included details about Ray’s performance reviews and an internal investigation into Ray’s alleged criminal conduct while at the firm.

In the subsequent litigation, Ray claimed that the release of the EEOC’s no-probable-cause finding was a sufficient adverse action to support a claim for retaliation under Title VII. The district court agreed:

Title VII prohibits an employer from responding to protected activity by taking an action that would “dissuade[] a reasonable worker from making or supporting a charge of discrimination.” The threat of dissemination of derogatory private information, even if true, would likely deter any reasonable employee from pursuing a complaint against his employer.

On her Employment & Labor Insider blog, my friend, Robin Shea, takes issue with this aspect of the decision.

I don’t consider it “retaliatory” for the firm to want to protect its reputation by releasing, in pure self-defense, a document that is a public record. Mr. Ray had a right to file a charge and a lawsuit, but once he started bad-mouthing Ropes & Gray…, he opened a door that he shouldn’t have opened.

I agree with Robin. Ropes & Gray did not start the public war of words with its former employee. Ray took his issues public first. An employer should have the right to defend itself in the sphere of public opinion. If the employer fired the first publicity shot, I could better understand a finding of retaliation. Merely responding to a smear that someone else started, however, should not be viewed as an adverse action, no matter how wide Title VII’s retaliation lens might be.

Nevertheless, this case illustrates that retaliation comes in all shapes and sizes, and employers must act with extreme care when dealing with any employee who engaged in protected activity. If something such as responding to publicity started by a disgruntled ex-employee can constitute an adverse action, the scope of what acts fall outside Title VII’s definition of “adverse” is getting smaller and smaller, which makes these claims all the more dangerous for employers.

WIRTW #285 (the “back to school” edition)

(Yes, I’m “that” dad).

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

Discrimination

• Fox Sports 1 Launched With A Major Discrimination Lawsuit Problem — from Deadspin
• Fifth Circuit Reverses Summary Judgment in Win for Employees — from Texas Employment Law Blog
• Old Workers Rule! (Age Discrimination Drools) - Guest Post — from Screw You Guys, I’m Going Home
• “My Disability Made Me Do It,” Seems to Say The San Diego Mayor: Sexual Harassment vs. Disability Discrimination — from WinWinHR
• Paula Deen Ruling Reminds Us: Title VII Protects White Employees Who Are Discriminated Against for Their Association with Black Employees — from Suits by Suits
• Clearing up Sexual Harassment — from Mike Haberman’s Omega HR Solutions
• Another harassment myth, debunked: “If we don’t have a policy, we can’t get in trouble for violating it” — from Warren & Associates Blog
• EEOC Provides Guidance on when a “Partner” is an Employee — from Washington D.C. Employment Law Update

Social Media & Workplace Technology

• Stop Asking for Candidate Facebook Passwords — from Fistful of Talent
• Four easy ways to break the law by viewing an employee’s Facebook posts — from Eric Meyer’s Employer Handbook Blog
• Doctor sued for $1.5 million for allegedly photographing patient without consent and posting on Facebook — from Shear on Social Media Law

HR & Employee Relations

• 7 Lawsuit-Inviting Mistakes Managers Make — from i-Sight Investigation Software Blog
• 8 Things You Should Never Say in a Termination Meeting — from California Employment Law
• Where Can Employers Find “Beautiful” Employees? — from Phil Miles’s Lawffice Space
• How Should (and Shouldn’t) You Conduct a Workplace Investigation? — from The Emplawyerologist

Wage & Hour

• For Same-Sex Couples: If You’re Married in CT, You Have a ‘Spouse’ Under FMLA — from Dan Schwartz’s Connecticut Employment Law Blog
• DOL Updates Guidance on FMLA and Same-Sex Marriage — from Jeff Nowak’s FMLA Insights  
• FMLA Leave or ADA Accommodation (Or Both)? Overview of Beyond the Basics — from Stoel Rives World of Employment
• Unpaid Volunteer Files Unpaid Wage Lawsuit Against MLB — from Overtime Lawyer Blog
• Check Your Math! Fluctuating Workweek Damage Calculation Approved Yet Again — from The Wage and Hour Litigation Blog
• Affordable day care? One lawyer earns 50 cents after footing the child-care bill — from ABA Journal Daily News
• Head’s Up For Employers: (New) Confusion over Affordable Care Act Delays — from Employment Matters Blog
• The Common Sense Solution to Unpaid Internships — from The HR Capitalist, Kris Dunn

Labor Relations

• Why the NLRB Is Its Own Worst Enemy — from Molly DiBianca’s Delaware Employment Law Blog
• Overtaken by Events — from Labor Relations Update
• Employer waived issue of NLRB’s lack of quorum — from Ross Runkel Report
• Confidentiality policies: The NLRB weighs in — from HR Cafe+

Relying on stereotypes will put a target on your back

According to The Huffington Post, a group of Hispanic employees is suing Target for national origin discrimination. Their evidence—an internal memo that included the following “Multi-Cultural Tips” for its managers:

a. Food: not everyone eats tacos and burritos;

b. Music: not everyone dances to salsa;

c. Dress: not everyone wears a sombrero;

d. Mexicans (lower education level, some may be undocumented);

e. Cubans (Political refugees, legal status, higher education level); and

f. They may say ‘OK, OK’ and pretend to understand, when they do not, just to save face.

That’s a pretty good smoking gun, if you ask me.

It served as a good reminder about the dangers of stereotypes in the workplace.

There is no hiding that stereotypes—both positive and negative—exist. To some degree we all harbor them (and anyone who tells you differently is lying to you and themselves). The better job you do of insulating your business’s personnel decisions from stereotypes, the less often you will find yourself in need of my services—which is a positive stereotype you can embrace.

This post originally appeared on The Legal Workplace Blog.

Where’s Waldo? She’s teaching you a lesson on the high cost of sexual harassment

While employed as an electrical line worker for Consumers Energy Company from 2001 through 2005, Theresa Waldo claimed that she suffered the following incidents of sexual harassment, about which she complained to her supervisor, union rep, and HR manager, each of whom allegedly ignored her:

1. She was repeatedly called derogatory and demeaning names, such as “bitch” and “wench.”
2. Coworkers threw her purse out of a work truck and into the dirt, telling her that “there were no purses allowed in these trucks.” When she responded by carrying a smaller purse in her pocket, she was called a “dike.”
3. Her coworkers refused to let her travel to a bathroom, instead telling her that if she “wanted to work a man’s job,” she had “to pee like a man.”
4. Coworkers locked her in a porta-potty with duct tape.
5. Coworkers isolated her at work sites by excluding her from lunch trips and forcing her to walk instead of riding in trucks with the male employees.
6. There were sexually explicit pictures on the work trucks.

Based on the foregoing, a jury awarded Waldo $400,000 in compensatory damages and $7,500,000 in punitive damages on her sexual harassment claim. Applying Title VII’s damage caps, the trial judge reduced those awards to a combined $300,000. In addition to the capped damage award, the judge also awarded Waldo $684,506 in attorney’s fees, which the 6th Circuit affirmed.

Who wins these cases? According to Judge Sutton’s dissenting opinion, it’s the lawyers, not the litigants:

I join all sections of the majority’s opinion save one: its decision to uphold the district court’s award of $684,506 in attorney’s fees—all but $1,000 of the fees requested by Waldo’s attorney without any additional reduction for time or rate, including for all work incurred to lose the first jury trial, all work incurred to lose six of the seven claims (four of them state law claims) and for all work incurred to win $300,000 in the second jury trial. One can be forgiven for thinking that Waldo’s two attorneys, not Waldo, were the true winners. This is good work if you can get it.

Harassment takes a toll. It exactly a high emotional cost on the victim. It exacts a steep legal cost on the company defending a lawsuit that can be salacious and unpopular. Yet, as this case illustrates, the people that often win are the lawyers. It may sound odd for a lawyer to argue against litigation. Yet, as I’ve heard one of my partners espouse more than once, “When you’re litigating you’re losing.” This case is the perfect example. From start to finish, Theresa Waldo spent more than 8 years of her life (from June 2005 until August 2013) litigating. For that time and aggravation, not to mention the on-the-job harassment that she suffered, she was awarded $300,000. Her lawyers, on the other hand, pocketed more than double that amount.

Who really won, and what does this case teach us about the benefit of evaluating the risk of cases and resolving those that have merit.

Why you should take all harassment complaints seriously

Today I am going to discuss two racial harassment cases decided by the same court, on the same day, but with different results.

• In Paasewe v. Action Group, Inc. (6th Cir. 7/17/13), the plaintiff alleged that he was called “boy,” threatened because he wore a Barack Obama t-shirt, and was demeaned because he was a black man driving a nice car. The court concluded that a jury question existed on whether Paasewe’s allegations gave rise to a racially hostile work environment.
  
• In Nicholson v. City of Clarksville (6th Cir. 7/17/13), the plaintiff alleged that co-workers repeated used the n-word and other offensive phrases to describe African-Americans, in addition to incidents of profanity directed at African-American employees. The court concluded that no jury could reasonably concluded that Nicholson had been subjected to a racially hostile work environment, and affirmed the trial court’s dismissal of his harassment claim.

You can read each of these cases for yourself, and come up with good arguments for, and against, the employer in each. The point I want to make, however, runs deeper than any analysis of the legal merits (or lack thereof) of each case. Deciding whether a workplace is sufficiently “hostile” to support a harassment claim under the civil rights laws is highly subjective. One judge’s or jury’s illegal hostile environment is another’s workplace triviality.
An employer’s primary goal should not be to win these cases on their merits when filed, but to prevent them from being filed in the first place. How does a business accomplish this goal?

• Have a written anti-harassment policy.
• Provide periodic anti-harassment training.
• Foster open channels of communication between employees and management.
• Take all workplace complaints seriously by investigating each (no matter how trivial it may seem), and by imposing effective remedial action if necessary.
• Maintain a diverse workforce.

Cherry picking only those complaints that you believe are serious or legitimate opens up to scrutiny those complaints that are buried or ignored, which, in the hands of the right plaintiff could prove to be an expensive omission.

How to draft an enforceable noncompete agreement in 5 steps

According to the Wall Street Journal, litigation over noncompete agreements is rising:

More employers are requiring their new workers to sign “noncompete” agreements, which they say are needed to prevent insiders from taking trade secrets, business relationships or customer data to competing firms when they leave.… 

The number of published U.S. court decisions involving noncompete agreements rose 61% since 2002, to 760 cases last year…. Since most cases are settled out of court and most opinions aren’t reported, that tally is likely low.

Yet, having an employee sign a noncompete agreement and being able to enforce that agreement against that employee are two completely different animals. In today’s job market, courts have become increasingly skeptical of agreements that limit an employee’s ability to find employment.

Thus, what steps can you take to maximize your ability to enforce the agreements that your employees sign? Here are 5 practical steps.

1. Pick the right type of covenant. What type of competition are you trying to protect? Are you trying to protect your company’s most guarded secrets from you biggest competitors, or are you trying to prevent a salesperson from cherry picking your customers? If all you need is an agreement prohibiting an employee from soliciting customers, clients, or vendors, then limit the agreement to protect that interest. Putting it another way, if all you need is a no-solicitation agreement to protect your legitimate interests, then only require such an agreement as a condition of employment. Do not cast too wide a net, or a court will either narrow it for you, or, worse, toss out the entire out to sea.

2. Know your jurisdiction. Different states have different laws pertaining to the enforceability of noncompete agreements. California, for example, will only enforce such agreements in very limited circumstances, while Ohio will enforce any agreement reasonable in time, geographical scope, and the legitimate interest you seek to protect. Picking the right state’s law to apply to your agreement could make the difference between and enforceable contract and a worthless piece of paper.

3. Provide consideration. An employee must receive something of value in exchange for giving up the right to compete. If the covenant is signed at the beginning of employment, the hiring itself usually meets this requirement. For current employees, though, what qualifies as “value” varies from state to state. In Ohio, for example, a keeping an at-will employee employed is enough. Other states, however, require something of monetary value, such as a raise, bonus, or extra vacation days.

4. Enforce, enforce, enforce. Do not be selective in enforcing your contracts. Suppose Employee A and Employee B are subject to the same noncompete covenants. Employee A quits and works for a competitor, and you ignore it. If Employee B does the same, but you sue to enforce that noncompete, you will have a hard time proving the legitimacy of the business interest you are seeking to protect in light of the fact that you chose to ignore the same as to Employee A.

5. Ask for help. The Internet is a wonderful tool. A wealth of information is a world away. In the click of a mouse you can learn who led the National League in stolen bases in 1971 (it’s Lou Brock), or you can find examples of noncompete agreements. Be wary, though, of using these examples in your business without first having your counsel vet them. As noted above, laws vary from state to state. They also change from year to year as new statutes are passed, old statutes are amended, and court pass judgment on various legal issues. No matter the quality of the appearance of the form you locate or the trustworthiness of site on which you find it, you have no idea when it was drafted, which state’s law under which it was drafted to comply, or if counsel ever reviewed it. There is nothing wrong with a little DIY legal work on the Internet. There is a lot wrong, however, with all your legal work being DIY. If you don’t want to pay your lawyer to start from scratch, at least let him or her review your forms and offer an opinion on their viability in your specific jurisdiction.

These five steps aren’t the only considerations in drafting a strong, enforceable noncompete agreement. But, they are a good foundation to placing you in the best position to protect your business from an employee trying to work for a competitor.

WIRTW #284 (the “help if you can” edition)

I’ve never used this space to ask anyone to donate to anything. This week is an exception.

My niece had a scare. After months of knee pain, doctors found a 6 cm mass on her tibia. We feared the worst. After Wednesday’s surgery we received the best possible news—a benign giant cell tumor that had eaten away her leg until her tibia resembled Swiss cheese. She is on the road to recovery, which includes long and difficult rehab coupled with the risk that her repaired and rebuilt leg could fail.

She also faces crippling out-of-pocket medical expenses that will saddle her family for years, which includes my 1- and 2-year-old great-nieces, and her husband, a veterinary resident who’s taken an unpaid leave of absence to be with his family.

If you want to read the entire story, jump over to EncouragingErin.com, a blog/donation site we established to help my niece and her family. All help, thoughts, and words of encouragement are appreciated. Thanks for reading.

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

Discrimination

• “Race-based claims thrown out in Paula Deen lawsuit” — from Walter Olson’s Overlawyered
• How The EEOC’S Scrutiny Of Background Check Practices Has Employers Between A Rock & A Hard Place — from Employment Essentials
• Interactive Process is Two-Way Street — from Dan Schwartz’s Connecticut Employment Law Blog
• The EEOC Is Now Officially An Employee Side Employment Law Firm — from The Labor and Employment Law Blog
• NFL player’s racist comment sparks debate — from John Phillips at HR Hero Line (welcome back old friend)
• Go Figure: The EEOC Clears Itself on Discrimination Charges — from Labor & Employment Law Perspectives
• Are EEOC Guidelines for Employment Background Checks Still Confusing? — from employeescreenIQ Blog
• When it comes to ADA accommodations, reasonable is good enough — from Eric Meyer’s The Employer Handbook Blog

Social Media & Workplace Technology

• Kansas Court Mitigates the Risks of a BYOD Workforce — from Molly DiBianca’s Delaware Employment Law Blog
• Online in 60 seconds — from SocialFish
• 72% of Adults Online (Your Employees) Use Social Networking Sites — from EmployerBrief
• Legal implication for employers when employees download apps on work devices — from Employment Law Bits
• More than a third of Americans use Facebook every day — from The Verge
• HR: Corporate America’s social media cops — from Business Management Daily

HR & Employee Relations

• An Employee Says She's Being Sexually Harrassed. Now What? — from The Evil HR Lady, Suzanne Lucas, writing at Inc.com
• Who Should Conduct Your Workplace Investigation and Why Does it Matter? — from The Emplawyerologist
• Is it Harassment or Just Questionable Behavior in the Workplace? — from i-Sight Investigation Software Blog
• Most Embarrassing Termination Ever — from The Tim Sackett Project
• “Hell or High Water” or Fraud: Court Rules That Supermarket Scion Was Entitled To ‎Post-Termination Benefits Despite Misconduct ‎— from Suits by Suits
• How to Bust the Most Common Age-Related Stereotypes at Work — from Lifehacker
• Are you prepared for very old workers? — from Mike Haberman’s Omega HR Solutions
• Working Fathers Need Balance, Too — from Harvard Business Review
• The One Sentence HR Handbook — from Fistful of Talent
• Have you taken a personality test for a job or any other reason? If so, was it a useful tool? — from ABA Journal Daily News

Wage & Hour

• Take 2: Does Annual FMLA Certification First Require an Employee's Absence? — from Jeff Nowak’s FMLA Insights
• DOL Recognizes Same Sex Marriage for FMLA — from Phil Miles’s Lawffice Space
• Independent contractor’s email was key factor in finding he had apparent authority to bind principal — from Internet Cases

Labor Relations

• Text “FRONTGROUP” to … — from LaborPains.org
• Members-Only Collective Bargaining: Get Ready for an Old Concept for a New Use — from Ross Runkel Report
• NLRB Judge Says Employer’s Baseball Cap Logo Restriction Violates Employees’ Section 7 Rights — from Labor & Collective Bargaining

Clearing up some misconceptions on social media and privacy

“Bosses force woman to show Facebook page to prove she's not lying,” reads this headline on the venerable technology website, CNET. According to the article, the New Zealand Employment Relations Authority has required a fired flight attendant to provide her ex-employer with access to her Facebook page to prove, or disprove, the fact that her use of sick leave was legitimate.

What follows are three incorrect statements in an attempt to deconstruct this issue:

1. “If such precedents continue to be set, everything that is digitally accessible may become evidence if an aggressive litigator decides that it might be useful.” In reality, the precedents are wildly inconsistent. Courts across the country are weighing the privacy rights of a litigant versus the relevance of the requested social media information. In this case, the judge favored the latter. A different judge could have reached a different result. One case, however, cannot be read as an indictment of the erosion of personal privacy rights.
   
2. “Employers all over the world have begun to demand Facebook access to private accounts—some at the job interview stage.” This statement is not one of fact, but instead one of hyperbolic opinion. In reality, my research reveals that very few employers engage in this practice. Don’t just take my word for it. Also take the word of an Australian law firm that conducted a similar survey, with similar results.
   
3. “Six U.S. states have now deemed it illegal for employers to do this.” In gross over-reaction to this issue, it’s sadly 11 states that have banned employers from requiring access to an employee’s social media account. Regardless, these laws do not prohibit a judge from providing access as part of the discovery process.

Employers are not requiring employees to turn over access to their personal social media pages. Court sometimes require litigants to turn over social media information when it might be helpful to prove or disprove a claim. End of story.

6th Circuit permits employers to enforce reasonable call-in rules for FMLA leave

In Cavin v. Honda of America Manufacturing, he 6th Circuit held that “the FMLA does not permit an employer to limit his employee’s FMLA rights by denying them whenever an employee fails to comply with internal procedural requirements that are more strict than those contemplated by the FMLA.” Six years later, however, the Department of Labor amended the key FMLA regulation that underpinned the Cavin decision. 

That regulation, 29 C.F.R. § 825.302(d) now reads as follows:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.… Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.

So, what happens now when an employer has a call-in rule that is more strict than the FMLA? According to White v. Dana Light Axle Manuf. (6th Cir. 8/7/13) [pdf]:

An employer may enforce its usual and customary notice and procedural requirements against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the employer’s requirements.

What does this case mean for you? It means that you should consider implementing reasonable call-in requirements to help curb FMLA abuse and over-use. If the statute allows you to take advantage of these policies, why not help level the playing field against a statute that, more often than not, favors the employee.

Federal court slams the door on EEOC’s criminal background check lawsuit

In EEOC v. Freeman (D. Md. 8/9/13) [pdf], the U.S. District Court for the District of Maryland dismissed a race discrimination lawsuit filed by the EEOC. Consistent with its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII, the EEOC alleged that Freeman’s criminal background checks on all job applicants violated Title VII by disparately impacting African-American job seekers.

In dismissing the lawsuit, the Court focused on the factual failings of the EEOC’s statistical expert. Eric Meyer’s Employer Handbook Blog has the details of the Court’s opinion.

The opinion also provides the most scathing indictment to date of the EEOC’s position on the use of criminal background checks by employers. Despite its length, it’s worth reprinting in its entirety.

For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable….

The present case is only one of a series of actions recently brought by the EEOC against employers who rely on criminal background and/or credit history checks in making hiring decisions. For example, in two recent complaints filed against discount retailer Dollar General Corp. and car manufacturer BMW, the EEOC claimed that those employers improperly used criminal background checks to bar potential employees, resulting in a disparate impact on African-American applicants….

Indeed, the higher incarceration rate [of African-Americans than Caucasians] might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90 percent of its positions….

By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

This case is an important first step towards a reasoned and rational understanding of the role of criminal background checks for employers. The Freeman case, however, will not be the final word. District courts nationwide will face this issue and, depending on the judge hearing the case, will agree or disagree with the EEOC’s hard-line position. It will then be up to the appellate courts, and, hopefully, the Supreme Court, to have the final say.

In the meantime, employers need to understand that criminal background checks are the EEOC’s hit list. Regardless of how this issue ultimately plays out, using a conviction record as a disqualifying factor for employment without engaging in the individualized inquiry required by the EEOC’s Enforcement Guidance will raise the EEOC’s ire and could subject an employer to an enforcement lawsuit.

I am hopeful that, in the end, common sense will prevail and rescue employers from the Hobson’s choice recognized by the Freeman court. Until then, these practices remain risky. Employers will have to balance the risk of an EEOC enforcement action against the benefit to be gained from the access to and use of criminal conviction records in hiring and employment.

6th Circuit rejects contract that shortens statute of limitations for wage claims

Twice in the last three years, the 6th Circuit has signed off on contracts between an employer and employee that shortened the time for an employee to bring a discrimination claim (here and here). 

Last week, however, that same court reversed course and refused to recognize a contractual clause that limited an employee’s right to file a wage and hour claim.

In Boaz v. FedEx (6th Cir. 8/6/13) [pdf], the 6th Circuit reviewed the following clause in an employment agreement:

To the extent the law allows an employee to bring legal action against Federal Express Corporation, I agree to bring that complaint within the time prescribed by law or 6 months from the date of the event forming the basis of my lawsuit, whichever expires first.

Boaz sued FedEx in 2009—both for wage and hour violations and violations of the Equal Pay Act—that she alleged occurred between 2004 and 2008. FedEx moved to dismiss the lawsuit, claiming that the six-month limit in her employment agreement barred her claims.

The 6th Circuit disagreed:

An employment agreement “cannot be utilized to deprive employees of their statutory [FLSA] rights.” That is precisely the effect that Boaz’s agreement has here. Thus, as applied to Boaz’s claim under the FLSA, the six-month limitations period in her employment agreement is invalid.…

Congress enacted the Equal Pay Act as an amendment to the FLSA. By then the Supreme Court had already held that employees cannot waive their FLSA claims for unpaid wages and liquidated damages. We therefore presume that, by folding the Equal Pay Act into the FLSA, Congress meant for claims under the Equal Pay Act to be unwaivable as well.

FedEx argued to the 6th Circuit that this holding establishes a split among the statutory limitations periods that employers can contractually limit.

FedEx responds that courts have enforced agreements that shorten an employee’s limitations period for claims arising under statutes other than the FLSA—such as Title VII. And FedEx argues that the discrimination barred by Title VII (i.e., racial discrimination) is just as bad as the discrimination barred by the FLSA, and hence that, if an employee can shorten her Title VII limitations period, she should be able to shorten her FLSA limitations period too. 

The 6th Circuit rejected FedEx’s argument for two reasons. 

     First, unlike claims under the FLSA, employees can waive their claims under Title VII. 

     Secondly, an employer that violates the wage and hour laws gains a competitive advantage that does not exist by violating the FLSA.

Despite this case, I still believe that agreements that lessen statutes of limitations are an important tool to limit risk, especially in a state like Ohio, which has a six-year statute of limitations for discrimination claims (except age). If nothing else, you can limit your risk for discrimination and other employment claims, even if your wage-and-hour risk might carry forward longer. 

WIRTW #283 (the “vaycay” edition)

According to a recent survey conducted by TeamViewer, 52 percent of employed Americans plan on working during their summer vacations. While it will be impossible for me to get away from email, I will be taking the week off from writing blog posts.

I’ll see everyone with fresh content on Monday, August 12. In the meantime, however, do not forget that the deadline to submit your nominees for consideration in the ABA Journal’s Blawg 100 is Friday, August 9.

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

Discrimination

• An employee who sleeps on the job may still be qualified under the ADA — from Eric Meyer’s The Employer Handbook Blog
• State AGs Warn The EEOC: Your “Misguided” Position On Criminal Background Screens Is “Gross Federal Overreach” — from EEOC Year-End Countdown
• Workers in “The Twilight Zone” — should you offer them harassment training? — from Robin Shea’s Employment and Labor Insider
• 5 Sticky Legal Situations Employers Should Avoid — from employeescreenIQ Blog
• Protecting Older Workers Against Discrimination Act Reintroduced in Both Chambers — from Washington D.C. Employment Law Update

Social Media & Workplace Technology

• Which Employees Are the Biggest Security Risk? — from Fox Small Business Center
• Most Social Media Users Unaware Posts Can Be Used in Court — from Lawyers.com
• The Perils of Being a Social Media Holdout — from Harvard Business Review
• Recruiting Socially, But Not Allowing Employees to Be Social is a Classic Bait and Switch — from Acacia HR Solutions
• Court Holds That Employer Did Not Have “Possession, Custody or Control” of Text Messages Sent or Received on its Employees' Personal Cell Phones — from Employer Law Report
• BYOD: is personal information visible over corporate networks? — from First Reference Talks
• Manage BYOD Risks with an Effective Mobile Device Policy — from i-Sight Investigation Software Blog

HR & Employee Relations

• First Day of Work: An Employment Lawyer’s Perspective of Onboarding — from Dan Schwartz’s Connecticut Employment Law Blog
• An Employment-Law Perspective on the Anthony Weiner Story — from Molly DiBianca’s Delaware Employment Law Blog
• Five Tips for Conducting Lawful Employment Background Checks — from Michigan Employment Law Advisor
• How to Avoid Becoming Part of “No Vacation Nation” — from Lifehacker
• The 5 Things You Need to Communicate During a Layoff — from TLNT
• Improve Your Workplace Documentation Practices: When to Document? Immediately! — from Southwest Florida HR Law & Solutions
• Can I Tape My Employer If I Have Poor Memory? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• Often Asked - Never Resolved - Who owns my LinkedIn Contacts? — from Smooth Transitions
• Wanted: Fair Wages Mobile App — from InformationWeek
• Does The FMLA Protect a Supervisor’s Right To Defend a Subordinate’s Leave Of Absence? — from Hunton Employment & Labor Law Perspectives™
• In Its Most Surprising About-Face To Date, DOL Abandons Administrator's Interpretation and Sides With Employer — from The Wage and Hour Litigation Blog

Labor Relations

• The NLRB Is Back — from Workplace Prof Blog
• A whopper about fast-food wages — from Walter Olson’s Overlawyered
• Fast Food Strikes Catch Fire — from Workplace Fairness
• Your Social Media Policy Can't Be Too Restrictive, Says NLRB — from In House
• The NLRB Could Learn From the Seventh Circuit — from The Employment Brief

What to look for in the coming year from the EEOC

Yesterday, I had the pleasure of speaking on social media at ACI’s Employment Discrimination Conference in New York City. One of the benefits of speaking at such an event is the ability to hear the other great speakers. Yesterday was no exception.

The conference’s keynote speaker was Constance Barker, one of the EEOC’s two Republican Commissioners. She was thoughtful and eloquent in sharing her personal opinion on the direction of her Agency.

One of the highlights of her remarks was the sharing of four issues on the Agency’s radar that she expects will appear as formal, written Enforcement Guidance in the coming year.

• Reasonable accommodations of disabilities
• Reasonable accommodation of pregnancy under Title VII
• Unemployment as a “protected class” under Title VII
• Credit history as a “protected class” under Title VII

Needless to say, the EEOC’s activism is not going away (at least between now and 2016). Employers need to keep an close eye on these issues as the develop in the future at the Agency.

Fired news reporter, Shea Allen, illustrates the meaning of “profersonal” for today’s workers

It’s exactly a year to the day that I first wrote about the disappearing line between the professional and personal online. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal, social media’s intertwining of our professional and personal personas.

Yesterday, the Today Show brought us a textbook example. Shea Allen, a Hunstville, Alabama, television news reporter, lost her job because of a post she wrote on her personal blog. The post, entitled, “No Apologies: Confessions of a red headed reporter,” included the following:

• I’ve gone bra-less during a live broadcast and no one was the wiser.
• My best sources are the ones who secretly have a crush on me.
• I am better live when I have no script and no idea what I’m talking about.
• I’m frightened of old people and I refuse to do stories involving them or the places they reside.
• I’ve taken naps in the news car.
• If you ramble and I deem you unnecessary for my story, I’ll stop recording but let you think otherwise.

That an employee was fired for something she posted on her personal blog is not necessarily newsworthy. However, it makes for an interesting juxtaposition with a recently published report on business ethics and social media.

According to the National Business Ethics Survey® of Social Networkers:

• 79 percent of social networkers (defined as an employee who has an account on at least one social network) consider how their employer would react before posting something work-related on a personal social networking site
• 64 percent consider how their employer would react to personal information posted to a personal site
• 26 percent believe it is acceptable to post about their job even if they do not identify their employer.

It is comforting to read that nearly 8 out of 10 social networkers consider their employer before posting. Yet, when one considers that according to the Today Show, 53 percent of Americans side with Shea Allen and feel that she shouldn’t have lost her job, it is clear that there still is work to be done in educating employees about what it means to profersonal.

Thus, I’ll leave you with my words on this topic from one year ago, which bear repeating:

Employees need to realize that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination (even if employers can overreact in these situations). Until people fully understand that social media is erasing (has erased?) the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in a “profersonal” world.

The DOL’s “Fair Labor Data Challenge” presents an interesting strategy, but is it fair?

The Department of Labor is asking for help to create an iPhone/Android app to aid employees in tracking corporate wage-and-hour compliance.

The DOL Fair Labor Data Challenge will “help consumers locate … establishments and view their federal enforcement and violations history as well as read consumer reviews to help them decide where to spend their hard-earned wages.”

According to the DOL, the “app … would work with existing social media and would allow consumers to see if an establishment that they want to frequent has been in compliance with federal labor laws.” Its hope is that by “providing consumers with information at their fingertips about which businesses have treated their workers fairly and lawfully, the app will empower them to make informed choices about where to shop, eat, or even vacation.” Thankfully, in addition to flagging underpaying scofflaws, it “also will recognize those employers who are doing the right thing and playing by the rules.”

In other words, the DOL wants to shame employers into wage-and-hour compliance. The DOL itself says, “Our investigators can’t be in every workplace, and we’ll never reach every establishment through our traditional forms of outreach.” So, to compensate for its enforcement black-hole, the DOL is turning to viral outreach to create a way for people to soft-boycott those businesses that employees say do not comply with the wage-and-hour laws.

I will be very curious to see what this final product looks like if it ever hits the App Store. For this app to live up to its “fair” name, it must provide employers the ability to rebut negative comments. Otherwise, this app will be nothing more than a one-sided vent for disgruntled employees. Regardless, employers should keep this issue on their radars as yet another reason to get their wage-and-hour practices in line.

Court rejects use of social media evidence in defense of wage-and-hour claim

One of the difficulties employers face in defending wage and hour lawsuits alleging “off-the-clock” work is how to prove a negative. The employees say, “We worked during our lunch breaks,” (for example), and the employer says, “No they weren’t.” The trick, however, is how to prove that negative.

Could social media provide some help? If employees are posting to Facebook, Twitter, etc. at time during which they claim to have been working, can an employer argue that the posts help establish that the employees could not have been “working” during those times?

In Jewell v. Aaron’s, Inc. (N.D. Ga. 7/19/13) [pdf], the employer attempt to make that exact argument. To help prove its claim that the employee-class members did not work through their lunch breaks, Aarons sought an order compelling the production of the plaintiffs’ social media activities “during their working hours.”

Despite the limited nature of the request to “working hours” only, the district court still rejected this request:

Even though certain social media content may be available for public view, the Federal Rules do not grant a requesting party “a generalized right to rummage at will through information….” Defendant has not made a sufficient predicate showing that the broad nature of material it seeks is reasonably calculated to lead to the discovery of admissible evidence…. The exemplar evidence of Kurtis Jewell’s Facebook activity does not persuade the Court that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods. The Court agrees with Plaintiff that whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period….”

If this employer was merely guessing that there might exist something useful in the plaintiff’s Facebook account, I would have a easier time understanding the Court’s belief that the employer was fishing. This employer, however, was relying on actual time-stamped examples from the lead plaintiff’s Facebook profile [pdf].

I applaud this employer’s attorneys attempted creative use of social media to defend this wage-and-hour claim, and am troubled by this Court’s unfair hamstringing of that effort.

WIRTW #282 (the “shut yo’ mouth” edition)

Language and race have been in the news lately. From Trevon Martin to Paula Deen, it seems that everyone is talking about the meaning of race in 2013-America. It seems appropriate, I suppose, to share this video, and, maybe, bring a little levity to a very serious topic. 

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

Discrimination

• If you want to win your retaliation case, don’t be a donkey. — from Robin Shea’s Employment and Labor Insider
• EEOC suits claim employers violated genetic bias law by asking for family history in required exams — from ABA Journal Daily News
• Zimmerman Trial Leads to Whistleblower Lawsuit — from Phil Miles’s Lawffice Space
• EEOC Lawyers Discuss Misconceptions, Guidance About Criminal History Checks — from Bloomberg Law
• Sexual Harassment Claim Allowed Based On Spankasaurus And Gabbygail Comments — from Atlanta Employment Lawyer Blog
• Male Employee Who Wears “Girly” Shirts May Have Sexual Harassment Claim — from The Employment Brief
• Sexual Harassment: Crowdsourcing advice — from Mike Haberman’s Omega HR Solutions
• Illegal or Ill-Advised? More on Pre-Employment Interview Questions — from The Emplawyerologist

Social Media & Workplace Technology

• The Nasty Side of Social Media … And What Employers Can Learn From It — from Dan Schwartz’s Connecticut Employment Law Blog
• Is There a Reasonable Expectation of Privacy In Your Tweets? — from Molly DiBianca’s Delaware Employment Law Blog
• Facebook “tagging” adds a new wrinkle to social media discovery — from Eric Meyer’s The Employer Handbook Blog
• What Bosses Can and Can’t See On Your Smartphone — from Yahoo! News
• From Crisis 1.0 to Crisis 2.0: The Need for Social Media Responsible Use Training — from Social Media Today
• Proper Etiquette For Online Lurking When You’re the Boss — from from Workplace Diva

HR & Employee Relations

• Courts Continue Chipping Away at Employees’ Rights — from Texas Employment Law Blog
• More Answers To Your Noncompete Questions — from Donna Ballman’s Screw You Guys, I’m Going Home
• Five Year Non-Compete Enforced In Indiana — from Trade Secrets and Noncompete Blog

Wage & Hour

• 7 do’s and don’ts to keep wage-and-hour lawsuits at bay — from Business Management Daily
• First Circuit Federal District Court Holds Automatic Meal Break Deduction Policy Does Not Satisfy Commonality Requirement for Class Certification — from Wage & Hour Counsel
• Wage and Hour Violations at Restaurants — from Nolo’s Employment Law Blog
• Knock, Knock…It’s The Department of Labor! — from Work Place Coach Blog News
• Can you fire an employee on FMLA leave? — from Warren & Associates Blog

Labor Relations

• What to Expect From the Incoming National Labor Relations Board : Labor Relations Today — from Labor Relations Today
• The “new” NLRB: much ado… — from Michigan Employment Law Connection
• What is this in my email? Oh, just the NLRB — from HR idiot