WIRTW #290 (the “magnificent seven” edition)

I’m not going to lie; it’s nice when an organization recognizes my blog. The ABA Journal has honored me for the last three years by including me in its preeminent list of lawyer blogs, the Blawg 100. LexisNexis has also honored this blog, as have several others.

With that, I want to say thank you to Paralegal 411, which has compiled its own list of the Top 25 Employment Law Blogs, based on “website popularity metrics including the number of websites linking to them, Google Page Rank, website authority, and Twitter followers.” I came in at number 7. The other 24, many of whom are friends, are worth your time checking out.

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

Discrimination

• Association Is Not A Protected Category or Is It? — from Blogging4Jobs
• Not Without Warning: The EEOC Continues To File Barrages Of Pregnancy Discrimination Lawsuits — from EEOC Year-End Countdown
• Does the ADA mandate transfer preferences for disabled employees? — from Eric Meyer’s Employer Handbook Blog
• Is body odor a real disability? — from Business Management Daily
• Parties Petition SCOTUS to Hear Corporate Free Exercise Issue — from Phil Miles’s Lawffice Space
• What??? Even Informal, Oral Complaints Can Support an Employee’s Retaliation Claim??!! — from The Emplawyerologist
• Does Paramour Favoritism Constitute Discrimination? — from Minnesota Employer

Social Media & Workplace Technology

• Why Employers Should Love, Not Loathe, Social Media — from Molly DiBianca’s Delaware Employment Law Blog
• “Liking” on Facebook – The Internet Equivalent of a Yard Sign — from netWORKed Lawyers
• Step Right Up to the Paperless Law Office — from Attorney at Work
• Building a Secure Corporate Culture from the Top Down — from i-Sight Investigation Software Blog

HR & Employee Relations

• Dear Evil Skippy: Should I Hire The Cocktail Waitress? — from Evil Skippy at Work
• Should I Give a Bad Coworker a Reference? — from Lifehacker
• Mr. Forthright’s Tips On How To Pretend To Work At Work — from The Huffington Post
• The 3 Common Hiring Practices That Are Completely and Totally Wrong — from TLNT
• A Background Check is More Than a Price Tag: 3 Methods for Valuable Criminal Background Checks — from employeescreenIQ Blog

Wage & Hour

• Holiday pay - five things you should know when calculating holiday pay — from Employment Law Watch
• DOL Issues ERISA Guidance on Same-Sex Marriage; Is FMLA Guidance Next? — from Jeff Nowak’s FMLA Insights
• Law firms need not pay student interns for pro bono work — from Ross Runkel Report
• FMLA Certifications: What Do With an Incomplete or Insufficient Certification — from Employer Defense Law Blog

Labor Relations

• NLRAA (the extra A stands for app) — from HR idiot
• “Minority Unionism” Targets Employee Rights — from LaborPains.org
• Authorization Cards are Awfully Tricky — from Matt Austin Labor Law
• HR: Be sure your dress codes don’t violate the NLRA — from Warren & Associates Blog

Creating alternate avenues for employees to complain key to harassment prevention

In a story that reads more like an un-filmed script from The Office instead of an actual workplace, the EEOC announced that it has settled a sexual harassment lawsuit against an Atlanta-area cargo and freight transportation company. The female manager on whose behalf the EEOC filed suit alleged that the company’s owner and CEO subjected her to the following:

The harassment included a barrage of lewd sexual comments, gestures, and e-mails about the employee’s breasts, many of which were sent to other employees in the office. The CEO also kept a pair of rubber breasts on his desk along with a jar of Vaseline, visible to all employees and customers who visited the company facility.

As is often the case when an allegation of harassment involves a senior executive at a company, she claimed that management ignored her complaints.

This story illustrates two important and related points about an effective harassment-prevention program:

1. A effective anti-harassment policy must provide multiple avenues for an aggrieved employee to complain. Otherwise, an employee will feel powerless if the person to whom a policy directs her to complain also happens to be the alleged harasser. At a minimum, a policy should state that an employee can complain to HR, or to any supervisor, manager, or executive. In an ideal world, a company should also provide a telephone hotline and email account into which an employee can send complaint.

2. No amount of avenues to complain will make any difference if a company has a culture of covering up complaints levied against members of senior management. A company must take all harassment complaints seriously. It cannot ignore a complaint just because the alleged harasser also happens to be the company’s CEO.

Ensuring that your harassment-prevention program incorporates these two ideas will position your organization to deter and investigate all levels of harassment in your workplace, even that which starts at the very top.

The biggest pitfall of social recruiting

Jobvite recently the results of its 2013 Social Recruiting Survey. According to Jobvite, almost all recruiters are using some form of social networking to source candidates for jobs. Ninety-four percent of recruiters use, or plan to use, social media to recruit, and 78 percent have hired via social media.

Yet, as more companies use social media information to source job candidates, more companies expose themselves to legal risk from those same hiring decisions.

Case in point—according to Jobvite, 28 percent of recruiters report that they would react negatively to overly religious posts or tweets on a candidate’s social media profile.

Here’s the problem. It’s illegal—under Title VII and myriad parallel state civil rights laws—for a company to make an employment decision based on one’s religion. Thus, if a recruiter passes on a candidate because of the religious nature of a Facebook post or Tweet, that recruiter has exposed the employer to potential liability under Title VII’s religious protections.

Yet, as the chart above reveals, there is lots of good information to glean from an applicant’s social trail: references to illegal drug use, sexual posts, profanity, and poor communication skills. Thus, the dilemma for employers is how to avoid the risk of exposure to protected information, while allowing valuable, lawful information to filter through to the decision makers?

The answer? Don’t let anyone in the chain of hiring view candidates’ social media profiles. Train an employee who is insulated from the hiring process to do your social media searches, scrub all protected information, and provide a sanitized report to those responsible for making the hiring decision. That way, no one can argue that protected information posted on a social network illegally influenced a hiring decision.

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

Is this legal? Employee fired for Instagramming paycheck

Wade Groom, a salesperson at Lacoste’s Midtown NYC store, posted this photo of his paycheck to his Instagram account. Included with the photo was the following caption:

Paycheck. Still silly to me. Ever since I was a kid I’ve thought it was completely insane that we have to work all our lives. I still feel that way. Especially when it’s only enough to live in a third world apartment with [sh**ty] everything. Which for some reason in NYC is ok. Anywhere else only trailer trash live this way. I’m done with it.

Despite the account being market “private,” a copy of the photo made its way to the corporate office. According to a report at metro.us, Groom was then summoned to meet with an HR manager, who fired him for breaking the company’s “confidentiality contract.”

I have two takeaways to share from this story.

1. Employees have an absolute right under the National Labor Relations Act to discuss with each other how much they make. It is violation of federal labor law to have a policy that prohibits wage discussions, or to fire an employee for engaging in such discussions. If Mr. Groom has any co-workers who follow him on Instagram (and it’s a safe bet that he does, since someone gave the private photo to management), then the company might have a big legal problem. Regardless of whether the termination is legal, a “confidentiality” policy that prohibits wage discussions violates the NLRA. Either way, Lacoste should be calling its labor counsel.

2. Nothing on social media in ever “private.” No matter how secure you believe your social media profiles are, all it takes is for one person to grab a screencap of something you think is private for it to become permanently public. If you don’t want your employer to see something, don’t post it.

Over the summer, I wrote how photo and video sites—like Instagram and Vine—could create huge headaches for employers with the NLRB. This story illustrates the risk employers take by ignoring these evolving technologies and their intersection with traditional labor and employment laws.

Can an employee assume the risk of harassment?

For the uninitiated, the Insane Clown Posse are rappers. They wear clown makeup, and perform songs titled, “Santa’s a Fat B**ch,” “Cherry Pie (I Need A Freak),” and “F**k the World.” It is an understatement to characterize their songs as violent and misogynistic. Don’t believe me? Then check out these lyrics, or this video (both decidedly NSFW).

So, here’s my question. What kind of workplace did Andrea Pellegrini think she would be getting when she took a job as attorney and publicist for ICP’s Psychopathic Records? According to her recently filed sexual harassment lawsuit, her bosses fired her after she complained, among other things, about being exposed to dildos and “vagina tighteners” in the workplace.

I believe that every employee has the right to a workplace free from harassment of any nature, including exposure to sexually explicit material. However, couldn’t Ms. Pellegrini have seen this coming before she accepted her job? Didn’t she know what she getting herself into? Her bosses are famous for writing and performing these lyrics:

F**k Celine Dion and f**k Dionne Warwick, you both make me sick, suck my d**k.

What did she expect!? Those who chose to work on a Quentin Tarantino movie should give up the right to complain about the language. Those who choose to work for Snoop Dog should give up the right to complain about second-hand smoke. And those who choose to work for Shaggy 2 Dope, Violent J, and Dirty Dan should give up the right to be free from sexually explicit content.

No employee should have to put up with a sexually harassing workplace. However, to succeed on a claim of sexual harassment, one must prove that she subjectively perceived the workplace as hostile. The trier of fact in this case should take a long, hard look at whether Ms. Pellegrini was really offended by this workplace, or whether she is taking advantage of a situation to file a lawsuit. Assumption of the risk is not a defense to a hostile work environment. Yet, maybe in this case it should be.

[Hat tip: Donna Ballman]

WIRTW #289 (the “now you see me” edition)

Every now and again I like to provide you an update on my upcoming speaking engagements. If you are attending one of these events, please stop and say hi. I love meeting readers.

• Think Before You Click: Strategies for Managing Social Media in the Workplace — Midwest Labor & Employment Law Conference (October 4)
• X+Y+Z = A Generational Mess for Your Workplace Policies — 2013 COSE Small Business Convention (October 24)
• New NLRB Requirements — NBI Teleconference (November 1)

As always, you can find all of my past and future speaking gigs by clicking on the Speaking Engagements tab at the top of the page.

Also, if you’re not tired of reading what I have to say, you can check out my column in this month’s issue of Law Practice Today, on managing generational issues in the workplace. Thanks to Molly DiBianca for inviting my participation.

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

Discrimination

• EEOC Sues Popeye’s for Failing to Hire Applicant with HIV — from Smart HR Manager
• GINA: Don’t Ask About Mom! — from Employment Law Lookout
• Workplace Revenge and the Equal Opportunity Jerk — from Molly DiBianca’s Delaware Employment Law Blog
• How ordering cheesesteaks can help employers with disability-accommodation requests — from Eric Meyer’s The Employer Handbook Blog
• Abercrombie & Fitch Loses Yet Another Religious Garb Case — from Wisconsin Employment & Labor Law Blog
• Why Employers Need to Respond to EEOC Subpoenas As Soon As Possible — from Minnesota Employer
• Top 5 tips for employers when managing pregnant employees — from Employment Intelligence
• Thou Shalt Not Retaliate Against Thine Employees—Ever!! — from The Emplawyerologist
• Transgender Discrimination: Update Your Company Policies — from In House

Social Media & Workplace Technology

• A “Like” is a Like, Court Says, and is Protected Free Speech — from Dan Schwartz’s Connecticut Employment Law Blog
• A Peak at Workplace Privacy Laws: 10 Things All Employers Need to Know — from The Sociable Lawyer Blog
• Twitter’s Counsel Helped Make Financial Tweets Legal — from WSJ.com Law Blog
• Non-Solicitation Clauses and Social Media — from Augmented Legality
• Here’s how Apple’s iPhone 5s fingerprint scanner might incriminate you — from Boy Genius Report
• Employment law app - check it out! — from Robin Shea’s Employment and Labor Insider
• Smartphones now account for almost two-thirds of all mobile phones in the U.S. — from Boy Genius Report

HR & Employee Relations

• Trade Secrets - Even if You Didn’t Use or Disclose Them You Can Be Liable — from Suits by Suits
• Workplace Threats? Kiss Your Job and Your Unemployment Compensation Goodbye — from Phil Miles’s Lawffice Space
• The Proper Way To Say Goodbye To Departing Employees — from Employment Essentials
• The Witness Files: The High-Risk Harasser — from i-Sight Investigation Software Blog
• Detroit’s bankruptcy: lessons for employers — from Michigan Employment Law Connection
• Employers’ evolving use of background and credit checks — from EmployerLINC
• 73% of Workers Want More Flexibility in the Workplace — from Blogging4Jobs

Wage & Hour

• Are Unpaid Interns and Law Clerks Illegal? — from Lawyerist
• 8th Cir.: Unauthorized Aliens May Sue Under the FLSA to Recover Damages for Work Performed — from Overtime Law Blog
• Labor Secretary Details Obama Administration Wage-Hour Agenda at AFL-CIO Convention — from Wage and Hour Law Update

Expanding my reach: Announcing my monthly column in Workforce magazine.

It’s been almost a year-and-a-half since I started my relationship with Workforce.com. Most days, Workforce.com republishes my blog at The Practical Employer.

Workforce.com is the website of Workforce magazine, the world’s oldest HR publication, clocking in at 91 years old.

I was honored when, early this year, Workforce’s editorial director asked me to expand my relationship with the magazine by joining its Editorial Advisory Board. In this role, I, along with a dozen other industry leaders, content experts, and HR executives from leading companies, provide input and guidance into the editorial strategy and execution of the publication.

Part of this editorial strategy was directed at this month’s relaunch of the print magazine. One of the key cogs in this relaunch is the inclusion of monthly columnists in the magazine. To this end, I’ll be anchoring the magazine’s legal section with a monthly column.

You can read my first column—Talkin’ ‘bout Retaliation—in the September issue of Workforce.

DOL expands wage and hour laws to home care workers

Do you employ home health aides, personal care aides, or certified nursing assistants? Do you pay them less than the minimum wage, or less than time-and-a-half for any hours worked in excess of 40 in a week? If you answered “yes” to both of these questions, then you will need to make a big change to your pay practices beginning January 1, 2015.

Yesterday, the Department of Labor’s Wage and Hour Division released its final rule [pdf] extending minimum wage and overtime protections under the Fair Labor Standards Act to home care workers.

Beginning January 1, 2015, third-party employers (such as home-care staffing agencies) will no longer be entitled to claim that home care workers are exempt under the FLSA’s companionship services or live-in domestic service exemptions.

Steven Greenhouse, writing in the New York Times (hat tip: Workplace Prof Blog), did a great job summarizing this new rule:

Under the new rule, any home care aides hired through home care companies or other third-party agencies cannot be exempt from minimum wage and overtime coverage. The exemptions for aides who mainly provide “companionship services”—defined as fellowship and protection for an elderly person or person with an illness, injury or disability who requires assistance—are limited to the individual, family or household using the services.

If an aide or companion provides “care” that exceeds 20 percent of the total hours he or she works each week, then the worker is to receive minimum wage and overtime protections.

In support of this change, the DOL has published various resources—including a Home Care web portal, a FAQ, various fact sheets, and interactive web tools—which are worth your time reading if you think you employ workers covered by this new rule.

Your company’s personnel files are not your employees’ personal property

One repeat question that I seem to receive is whether employees have a right to see their personnel files. At least in Ohio, the answer is “no”—with three key exceptions:

1. Medical Records. Ohio Revised Code 4113.23(A) provides employees access to their own medical records from physical examinations either that are required for employment or stem from a job-related injury or disease.

2. Wage & Hour Records. Ohio Revised Code 4111.14(G) provides employees (or their designated representative) access to their own wage and hour records, which must include their rate of pay, total gross wages per pay period, and hours worked each day.

3. Public Employees. Ohio Revised Code 149.43 provides employees of the state, or any county, city, village, township, or school district, access to their personnel files as public records.

Mileage may vary in your jurisdiction. According to The HR Café, 20 states require that employers provide employees periodic access to their personnel files. Thus, it is critical that you have a policy establishing rights and expectations in relation to personnel files. Something as simple as, “The Company will provide employees access to personnel files according to state law,” should suffice.

Also, unless a state law provides otherwise, if you permit access to personnel files you should make the following internal decisions about their handling:

• Will you permit access to an entire file, or only certain parts?
• Will you permit employees to photocopy parts of their files?
• Will you permit employees to designate their right to inspect (for example, to a family member, union rep, or lawyer)?
• Will you permit employees to challenge information, and if so, how?
• Will you place limits on access to confidential information (i.e., background checks or workplace investigation reports)?
• Will you limit how often an employee can access a personnel file?

How does state law interpret a “disability” after the ADAAA?

This coming January will mark the five-year anniversary of the ADA Amendments Act. The ADAAA expanded the definition of a “disability” by undoing decades of Supreme Court precedent.

One example is the distinction between a long-term ailment and a short-term or temporary disabling condition. Under the originally drafted ADA, as interpreted by the U.S. Supreme Court in Toyota Motor Mfg., Kentucky, Inc. v. Williams (2002), to be substantially limiting and meet the definition of a “disability” an impairment “must ... be permanent or long term.” With the ADAAA, Congress rejected the Williams construction of “substantially limiting” by requiring an individualized inquiry of an impairments limitations regardless of the duration of the impairment.

One lingering question, however, is whether courts interpreting state disability statutes will fall in line with the ADAAA, or chart their own course under their own separate state laws. Ohio courts, for example, have long held that they look to federal law to interpret Ohio’s employment discrimination statutes, including that which prohibits disability discrimination. Does this rule hold in state-law disability-discrimination claims in the absence of an intent expressed by the Ohio legislature to follow the changes in the ADAAA?

In Welch v. IAC Huron, LLC (N.D. Ohio 9/10/13), we get the beginnings an answer to this important question. Welsh involved an employee with a short-term, yet disabling, shoulder injury. She sued under Ohio’s disability discrimination statute after her employer terminated her during her medical leave. The employer argued that Welch was not disabled because Ohio’s disability discrimination law follows Williams and does not cover short-term medical conditions. The court, however, disagreed, tersely stating:

The Supreme Court of Ohio repeatedly has held courts considering disability discrimination claims under [Ohio law] may look to case law and regulations interpreting the ADA for guidance. The statutory definitions of “disability” under federal and Ohio law are nearly identical, and neither definition includes the temporal limitation Williams endorsed and Congress rejected.... I conclude Ohio courts no longer would apply the Williams temporary/permanent distinction Congress rejected, and that the temporal duration of Welch’s condition would not disqualify that condition as a disability under the meaning of [Ohio’s disability discrimination statute].

In other words, at least according to this court, Ohio courts follow the ADAAA in applying and interpreting Ohio’s disability discrimination statute. While the courts have yet to flush out this issue, employers should not hold out hope that Ohio courts will apply Ohio’s disability-discrimination protections more liberally than the ADAAA.

Instead of focusing on whether an employee is “disabled” under the ADA or its Ohio counterpart, employer should focus on reasonable accommodations and engaging employees in the interactive process. The distinction between who is (or is not) disabled is a legal issue to be worked out in costly and time consuming litigation. Attempting to accommodate a disabled employee is an issue to be worked out in the workplace in collaboration with the employee. I’ll let you decide which is the path of lease resistance.

WIRTW #288 (the “words of wisdom” edition)

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

Discrimination

• Top 5 tips for employers when managing pregnant employees — from Employment Intelligence
• Thou Shalt Not Retaliate Against Thine Employees—Ever!! — from The Emplawyerologist
• Obesity is Now a “Disease,” AMA says; What’s That Mean for HR? — from HR Gazette
• EEOC Commissioner Feldblum provides answers on obesity as a disability — from Eric Meyer’s The Employer Handbook Blog
• 7th Circuit embraces “no jerks” rule after mediation meltdown — from Work Matters
• Can The EEOC Troll For Plaintiffs By Sending A Blast Email To Business Email Addresses? — from Workplace Class Action Litigation
• 6 Ways To Prove You’re A Victim Of Age Discrimination — from Donna Ballman’s from Screw You Guys, I’m Going Home
• Employer not liable for shift leader’s bad acts — from EmployerLINC
• Retaliation is Reality TV — from EntertainHR
• What Happens AFTER a Remand from the Appellate Court? — from Dan Schwartz’s Connecticut Employment Law Blog

Social Media & Workplace Technology

• Do you follow terminated employees on Twitter? — from The Tim Sackett Project
• Is BYOD Right For Your Workplace? — from Washington Workplace Law
• “Your cellphone: private or not?” — from How Appealing
• More Facebook Issues: This Time, It’s the Stored Communications Act — from Trade Secret / Noncompete Blog
• Employer Failure to Preserve Employee Social-Media Evidence — from Delaware Employment Law Blog
• Can You Say Discrimination? 28% of Recruiters React Negatively to Religious Posts/Tweets — from WinWinHR

HR & Employee Relations

• What to expect when you return to work — from Evil HR Lady, Suzanne Lucas
• Well, That Stinks: Dealing With Smelly Co-workers — from Workplace Diva
• You Say Let’s Talk Severance/Your Employer Hears I Quit (Or, Employees Are From Pluto, Employers Are From Uranus) — from Workplace Fairness

Wage & Hour

• Dear Evil Skippy: My Employee Was Out Shopping When She Was Supposed To Be On Medical Leave — from Evil Skippy at Work
• Does employee use of DOL “timesheet” app mean we can’t ban cellphones? — from Business Management Daily
• “Protected Activity” No Shield for Insubordination — from Lawffice Space
• What Pink Floyd Can Teach Employers about FMLA: Enforce Call-In Procedures and Insist Upon Facts Supporting Need for Leave — from Jeff Nowak’s FMLA Insights

Bathroom breaks do not equal breaks in pay

Yesterday’s post on OSHA’s bathroom rules generated an interesting reader question: can an employer deduct bathroom time from an employee’s pay?

The answer is no. Under the FLSA, “Rest periods of short duration, running from 5 minutes to about 20 minutes … must be counted as hours worked.” The Department of Labor includes “restroom breaks” as an example of these short-duration rest period for which an employer must pay its employees.

Thus, failing to pay your employees for time spent taking care of their personal business will subject you to a claim for unpaid wages.

Moreover, if the employees are exempt, pay deductions will also jeopardize their exempt status. You are required to pay exempt employees a weekly salary. Taking short-time deductions from an employee’s pay treat them like hourly employees, which, in turn, destroys the exemption for that job class.

In addition to these legal reasons to pay your employees for bathroom time, there is also a good practical reason. Treating your employees like tagged wildlife—tracking and recording their every move within the workplace—will create an work environment of distrust and apathy. Instead, you should treat all employees like professionals, and address performance-based issues as they arise. Is an employee failing to produce because he or she is spending too much time in the bathroom (or taking smoking breaks, or hanging around the coffee machine, or looking at Facebook, etc.)? Then address the performance issue. Is there a medical reason for which the employee needs a reasonable accommodation? Is the employee not busy enough and is looking for other way to fill time? Or is the employee a slacker that needs counseling, and if necessary, discipline?

Address the underlying performance issue on an employee-by-employee basis; avoid implementing company-wide edicts that will alienate the majority of your employees.

When you gotta go, you gotta go: The right to workplace bathroom breaks

Do you know that OSHA protects the right of employees to go to the bathroom? OSHA’s sanitation standard states:

Toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment.

The OSHA standard tells you everything you would ever want to know about workplace bathroom facilities, including the minimum required per number of employees. Thankfully, it also forbids employees from “consum[ing] food or beverages in a toilet room.” (just in case your employees like to snack while taking care of business).

It’s not enough that employers provide toilets; they also must provide access for employees to use them. According an April 6, 1998, Director’s memorandum to the OSHA Regional Administrators, this OSHA standard mandates that “employers allow employees prompt access to bathroom facilities,” and that “restrictions on access must be reasonable, and may not cause extended delays.” Another issues to keep in mind when dealing with bathroom breaks is that the ADA might require extended or more frequent breaks as a reasonable accommodation.

What do “reasonable on restrictions on access” look like? Zwiebel v. Plastipak Packaging (Ohio Ct. App. 9/6/13) provides an answer. Plastipak terminated Mark Zwiebel, a production-line operator, for leaving his machine three times in one shift, which included once to use the bathroom.

Zwiebel claimed that his termination wrongfully violated the public policy embodied in OSHA’s restroom standard. The court of appeals disagreed:

While there is a clear public policy in favor of allowing employees access to workplace restrooms, it does not support the proposition that employees may leave their tasks or stations at any time without responsibly making sure that production is not jeopardized. In recognition of an employer’s legitimate interest in avoiding disruptions, there is also a clear public policy in favor of allowing reasonable restrictions on employees’ access to the restrooms.

Thus, the employee lost his wrongful discharge claim because his breaks unreasonably interfered with production. Going to the bathroom is one thing—abandoning one’s job is another.

Nevertheless, employers shouldn’t be the potty police. When an employee has to go, an employee has to go. Unless an employee seems to abusing bathroom rights, or, like in Zwiebel, the breaks interfere with performance or production, let employees be.

Lies, untruths, and protected concerted activity

Consider the following two posts, each made by an employee on his respective personal Facebook page, during non-working time.

• Commenting on the Facebook post by another employee posting about her termination for commenting to a patient about the condition of the employer’s vehicles, William Norvell posted the following: “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court.”
• Michael Rice posted the following: “Hey everybody!!!!! Im [f****n] broke down in the same [s***] I was broke in last week because they don’t wantna buy new [s***]!!!! Cha Chinnngggggg chinnng-at Sheetz Convenience Store.”

In Butler Medical Transport (9/4/13) [pdf], an NLRB Administrative Law Judge concluded that Norvell’s post was protected concerted activity, while Rice’s post was not.

Norvell’s Facebook posts … was advising … a fellow employee to obtain an attorney/and or contact the Labor Board. What I find particularly important is that Norvell was responding to a post in which Zalewski stated she had been terminated for commenting to a patient about the condition of Respondent’s vehicles. The condition of Respondent’s vehicles was a matter of mutual concern to Respondent’s employees…. Thus, I find his post to be protected….

Respondent’s Chief Operating Officer … testified without contradiction that he reviewed Respondent’s maintenance records and determined that Rice’s vehicle had not broken down when he made this post…. As a result I conclude on the basis of Respondent’s uncontradicted testimony that the allegations made in his Facebook post were maliciously untrue and made with the knowledge that they were false.

Thus, the employer’s termination of Norvell was illegal, while its termination of Rice was perfectly lawful.

What does this case teach us? That there is a line between protected complaining and unprotected lying. Both employees posted about the condition of their employer’s work vehicles. The ALJ protected Norvell’s post because he was voicing a legitimate concern for a coworker, but failed to protect Rice’s post because he was caught lying about his vehicle breaking down. Thus, despite the belief of some that the NLRB is pushing the bounds of what qualifies as protected concerted activity vis-à-vis social media, one universal truth remains the same—liars do not win cases.

Hat tip to Molly DiBianca at her Delaware Employment Law Blog.

photo credit: Express Monorail via photopin cc

Failing to communicate with disabled employees is an easy way to buy an ADA lawsuit

Two ADA lawsuits filed by the EEOC over the past two weeks illustrate the risk that employers take when they fail to talk to employees about possible accommodations.

• The EEOC brought suit against Kmart, claiming that the retailer refused to consider alternate per-employment drug testing other than urinalysis for an applicant with kidney issues.
• The EEOC also brought suit against an Arkansas car dealer that declined a salesperson the use of a golf cart following spinal surgery. 

In both instances, the EEOC’s press releases make it clear that part of each employer’s violation was the employer’s failure to “engage in any discussions … about the suggested accommodations.”

The ADA does not guarantee an employee his or her preferred accommodation. It only guarantees a reasonable accommodation. The statute does guarantee, however, that employers engage disabled employees in an interactive process to determine the appropriate reasonable accommodation (if any).

If an employer dismisses an individual’s accommodation request outright, it will be difficult, if not impossible, for that employer to show that it engaged in the required interactive process. In that case, even if the employee’s request is absurd, burdensome, or otherwise unreasonable, it is likely that the employer nevertheless violated the ADA.

Communication between an employer and a disabled employee is the key to avoiding problems under the ADA. Do not commit the cardinal ADA sin of having a failure to communicate.

WIRTW #287 (the “save me, San Francisco, part 2” edition)

Cable car rides, hiking and biking to and over the Golden Gate Bridge, sailing the harbor, reuniting with my college roommate, the “Full House” house, hugging a giant redwood tree in Muir Woods, scenic drives with the top down, and lots of great food and wine. All in all, I’d say my four days in San Francisco and Napa was a huge success.

Huge props to Napa’s Kuleto Estate (the most beautiful winery you’ll ever see — the view is the bottom left below) and Frog’s Leap for their tasty wines. Too bad I had to return to reality this week.

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

Discrimination

• No Ifs, Ands, or Buts: “But For” Standard Requires New Trial, Court Rules — from Dan Schwartz’s Connecticut Employment Law Blog
• Boston Globe tackles attractiveness discrimination — from Walter Olson’s Overlawyered
• Big Red and Fried Chicken: Dallas Law Firm Sued for Discrimination — from Texas Employer Handbook
• Employers beware: You are liable for discrimination on the part of your staffing agencies — from Employment Law Bits
• 70% of Sexually Harassed Workers Say They Didn't Report it to Their Employers — from Wisconsin Employment & Labor Law Blog
• EEOC Charge Handling Process — from Employment & the Law

Social Media & Workplace Technology

• Too Creepy to Win: Employer Access to Employee Email — from Molly DiBianca’s Delaware Employment Law Blog
• NJ passes a business-friendly workplace social media privacy law — from Eric Meyer’s The Employer Handbook Blog
• Social Media is Paralyzing HR — from HR Examiner with John Sumser
• Who is Watching You When You BYOD? — from netWORKed Lawyers

HR & Employee Relations

• How Much Employee Turnover Really Costs You — from Evil HR Lady, Suzanne Lucas
• Handbook essentials: Auditing your policies the right way — from HR Gazette
• Does Your Employment Application Need To Be Updated? — from Employment Essentials
• How long do I have to keep HR records? — from Mike Haberman’s Omega HR Solutions
• What if Ryan Braun Was an “At Will” Employee? — from Wisconsin Employer Lawyer Blog

Wage & Hour

• What Pink Floyd Can Teach Employers about FMLA: Enforce Call-In Procedures and Insist Upon Facts Supporting Need for Leave — from Jeff Nowak’s FMLA Insights
• IRS Issues DOMA Guidance — from Employer’s Law Blog
• Shouldn’t the White House Be Paying Its Interns, Too? — from TLNT
• New York Times Op-Ed on Future of FLSA: A Provocative Read — from Employment Lawyer Blog

Labor Relations

• NLRB app review: Not perfect, but not half bad — from Robin Shea’s Employment and Labor Insider
• Are Employers Listening? Twitter Hash Tags in Support of Raising #MinimumWage — from Blogging4Jobs
• Is “Management Rights” an Oxymoron? — from We Know Next
• Labor and Obamacare — from Workplace Prof Blog
• A Labor Day Present from the NLRB — from i-Sight Investigation Software Blog

Big verdict underscores danger of recording devices in the workplace

A couple of years ago, I asked the following question: Are your employees recording you? In that post, I discussed an ABC News story, which noted that employees are using their smartphones to digitally record workplace events to gather evidence for future discrimination lawsuits.

Yesterday, news broke of a $280,000 verdict against a New York non-profit in a racial harassment case, in which the African-American plaintiff claimed that her boss, also African-American, called her a n****r. Her evidence? A four-minute audio recording the employee surreptitiously made on her iPhone. (If you’re curious, you can listen to some of audio on CNN.com).

With the proliferation of iPhones and Androids, most employees have a high-tech, high-clarity recording device in their pockets. How do you protect your business against the possibility of employees using these devices to gather damaging evidence against you?

1. If you do not have a policy against employees recording conversations in the workplace, you might want to consider drafting one. You never know when an employee is going to try to smuggle a recording device into a termination or other meeting. The proliferation of smart phones has only made it easier for employees to make recordings, both audio and video. Why not address this issue head-on with a policy? Unless, of course, the NLRB gets its way and renders these policies per se illegal.

2. If the legality of workplace recording bans is up in the air, then you need to train your managers and supervisors to understand and assume that everything they say is being recorded, if not electronically, then via a mental note that an employee can later jot down. You would be surprised how many plaintiffs keep copious, contemporaneous journals of the goings-on in the workplace. Managers and supervisors need to be vigilant in making sure that they do not say anything that could come back and bite your company in later litigation.

Or, just use the cone of silence for all workplace conversations.

More companies offer pet insurance as an employee benefit

We love our pets. This year, it is estimated that we will spend more than $55 billion on them. More than $14 billion of that total will be for veterinary care alone. Vet bills are expensive, and often unplanned and unbudgeted. Given our emotional attachment to our pets, we pay them, regardless of the cost. To mitigate the unexpected nature of these costs, after losing our last dog we opted for vet insurance for our current one.

Corporate America is following suit by beginning to offer pet insurance as an employee benefit.

According to Yahoo, one out of every three of the Fortune 500, plus 3,400 other smaller companies, now offer pet insurance as a benefit to their employees. Ohio employers offering this benefit include Procter & Gamble, Cliffs Natural Resources, and Quest Diagnostics.

Employee recruitment and retention is difficult. Companies struggle to locate, attract, and retain the best employees. Thinking outside the box with employee benefits is one way to attract, and keep, good employees.

FMLA now covers same-sex spouses (sort of)

Ever since the Supreme Court invalidated the Defense of Marriage Act in U.S. v. Windsor, there has been a lot of hand-wringing over what the decision actually means and its impact on our employment laws.

Windsor held that DOMA’s interpretation of “marriage” and “spouse” to apply only to heterosexual unions is unconstitutional. Because this decision is limited to one provision of one federal statute, many have wondered how it will be applied to private insurance plans, and to other federal statutes, such as the FMLA.

Last month, we started to get an answer.

The Department of Labor’s Wage and Hour Division amended its Fact Sheet 28F, entitled Qualifying Reasons for Leave under the Family and Medical Leave Act. As best as I can tell, the DOL amended the Fact Sheet to make one material change — to add “same-sex” marriage to the definition of spouse. Thus, according to the DOL’s definition of “spouse,” an otherwise eligible employee of a covered employer is now entitled to take FMLA leave to care for a same-sex spouse with a serious health condition.

It is important to note that this Fact Sheet is not the law. It is not part of the text of the FMLA, or even part of the DOL’s regulatory interpretation. It is merely the agency’s informational interpretation of the statute in light of Windsor.

Because courts do not have to accept this Fact Sheet as gospel on the meaning of “spouse” under the FMLA, neither should employers. It is an important first step, however, in the evolution of this issue and the development of same-sex leave rights under the FMLA.

While this issue develops in the DOL and the courts, employers need to remember that the FMLA is a floor, not a ceiling. Employers are free to provide leave of absence rights greater than the baseline the FMLA requires. Thus, employers that want to extend leave of absence rights, and other rights (such as benefits or employment-discrimination protections), to same-sex couples, need not wait for a legislative blessing. They were free to do so before the Windsor decision, and remain free to do so now. This Fact Sheet, however, signals that we are thankfully moving down a path to where someday, thankfully, this issue will no longer be open to debate or discussion.

WIRTW #286 (the “save me, San Francisco” edition)

If money was endless, and I wouldn’t miss my kids, I’d never come back… Enjoy your holiday weekend. I know I’ll be enjoying mine.

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

Discrimination

• The Times Says “Most Lawyers” Won’t Take Age Discrimination Cases Anymore. Really? — from Dan Schwartz’s Connecticut Employment Law Blog
• Victimless Harassment? — from Workplace Prof Blog
• Paula Deen Case Ends with a Whimper — from Phil Miles’s Lawffice Space
• Employee Who Left Drug Rehab Not Entitled to ADA, FMLA Protections — from Smart HR Manager
• Louisiana Federal Court Denies EEOC’s Request To Put Punitive Damage Cart Before the Compensatory Damage Horse — from EEOC Year-End Countdown

Social Media & Workplace Technology

• Decision Shines Light on How Not to Investigate Employees Online — from Workplace Privacy Counsel
• Infographic Explores BYOD Pros and Cons — from HR Daily Advisor
• Three Important issues about your BYOD policy — from Mike Haberman’s Omega HR Solutions

HR & Employee Relations

• The WWE’s Triple H on Moving Into Management: Your Company and Wrestling are the Same — from The HR Capitalist
• John Deere in Trade Secrets Dispute with Former Factory General Manager — from Trade Secrets Blog
• Noncompete Agreements – More Harm than Good? — from Texas Employment Law Blog
• You Say Let’s Talk Severance/Your Employer Hears I Quit — from Donna Ballman’s Screw You Guys, I’m Going Home
• Sudden severance switch raises bias red flags — from Business Management Daily
• Employers Should Confront Threats Of Workplace Violence — from Washington Workplace Law
• Eradicating Workplace Bullying through Policies and Training — from i-Sight Investigation Software Blog

Wage & Hour

• Working for Nothing — from The New York Times
• DOL offers the definitive word on FMLA and same-sex marriage. Kinda sorta. — from Eric Meyer’s The Employer Handbook Blog
• Ohio Court Finds FMLA Is Subject to Arbitration Agreement — from Employment Essentials
• The Dangers Lurking in the Treacherous Waters of FMLA Intermittent Leave Strike Again — from Labor & Employment Law Perspectives

Labor Relations

• Twelve arrested in protest of Walmart firings and retaliation against activists — from Workplace Fairness
• NFLPA Goes To Bat For Aaron Hernandez's Unpaid Bonus — from Deadspin
• 4th Circuit Revives “Sham Litigation” Suit Against UFCW — from Labor Relations Today

Until next week…