Lessons from children’s lit: A New Year’s resolution

Among the toys and the clothes, my kids always receive books for Christmas. This year, the books included The Day the Crayons Quit. This book tells the story of a boy’s box of crayons, and the colors inside that have quit their jobs, each for a different reason. Blue no longer wants to be known just for bodies of water. Black is tired of outlining objects to be filled in by other colors. Yellow and Orange are no longer speaking to each other, each believing it is the true color of the sun. And Beige, his wrapper having been peeled off, is too embarrassed to exit the box naked. It’s a very clever book, and the sounds of both my kids cackling during it’s telling is their gift to me.

The lesson to draw from this story is important for all employers to take to heart. Employees are unique. Each has his or her own personality, needs, and wants. For this reason, an employer cannot treat all employees the same. To appease Black by re-wrapping it will not address its concern of only being used for outlining, and by using Beige to fill in the ocean will not fix its fear of being naked. Similarly, your employee-mother-of-two is going to value flexibility and work-life-balance a whole lot more than a 22-year-old employee fresh out of college.

This year resolve to learn what makes each of your employees unique. Resolve not to treat your employees as fungible commodities, but as special assets, each with his of her own talents and concerns. Recognizing each employee’s individuality will result in a more engaged workforce, which, in turn, will repay you with happier, more productive, and more loyal employees.

The 12 Days of Employment-Law Christmas

This time last year, I published a song, “The 12 Days of Employment Law Christmas.” In the last year, though, I’ve gained a lot of new readers. So, since Christmas is almost upon us, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2013. I’ll see everyone with fresh content on January 2.

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(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Merry Christmas!

WIRTW #301 (the “shattered dreams” edition)

When I was 9 years old, I ruined Christmas for a neighbor when I spilled the beans that Santa Claus wasn’t real. I still feel bad about it to this day.

Flash forward thirty years. Buzz Lightyear has played a huge role in my family. He’s my 5-year-old son’s hero. He helped get Donovan through some tough medical issues in his young life. To Donovan, Buzz is very real … or was very real until his Kindergarten teacher thought it was a good idea to share with the class that the characters at Disney World aren’t real, but just people wearing costumes.

I was stunned. Where the hell does anyone get the right to ruin my kid’s dream. If he wants to think Buzz Lightyear is as real as President Obama, who am I to say otherwise. What’s the harm in a little boy having a dream? When did kids stop having the right to be kids?

After talking to the teacher, I learned that it’s part of the “common core curriculum” to discuss the difference between real and imaginary, and some of the kids asked about Disney as an example. Could she have handled it differently? Absolutely. Should have softened the blow or deflected the question so that the kids who still want to believe in the Disney magic can do so? Yup. Regardless, I remain bummed that part of my child’s childhood has been taken away.

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

Discrimination

• Smoking: Many States Try Snuffing Out Employment Bias Against US Smokers — from Employment Intelligence
• Telling An Employee They Need to Lose Weight is NOT Discrimination — from TLNT

Social Media & Workplace Technology

• The Spy Who Loved Me? IKEA and Surveillance Laws — from Dan Schwartz’s Connecticut Employment Law Blog
• Ownership of Business-Related Social Media Accounts — from Socially Aware Blog
• Does BYOD = Bring Your Own Dangers? — from Corporate Counsel
• Employee Owned Tablets and Technology Devices: Managing the Risks and Rewards Starts with BYOD Policy — from Jason Shinn’s Michigan Employment Law Advisor
• Non-competes in the world of social media: LinkedIn notifications are not “solicitation” — from Warren & Associates Blog

HR & Employee Relations

• The Risk of Fishing for Support in an Employee Discipline Matter — from Molly DiBianca’s Delaware Employment Law Blog
• Sometimes you have to fire your “star.” Here’s why. — from Robin Shea’s Employment and Labor Insider
• Next Year’s Headache for Employers — from Jottings By An Employer’s Lawyer
• What A Christmas Party Can Reveal About Company Culture — from Compensation Café
• Crowdsourcing Illustrative Examples of “At-Will Employment” — from Workplace Prof Blog
• Can My Employer Trash Me In References? 6 things you need to know about job references — from Donna Ballman’s Screw You Guys, I’m Going Home
• Never Say Goodbye to a Great Employee — from Harvard Business Review

Wage & Hour

• Wage and Hour Compliance: Look Out, Here Comes 2014! — from Workplace Insights
• Supreme Court May Hear FLSA Case Finding Owner Personally Liable For FLSA Violations — from Overtime Lawyer Blog
• To Moot Or Not To Moot—The First FLSA Case In Texas To Grapple With The Genesis Healthcare Ruling — from The Wage and Hour Litigation Blog
• Wage & Hour Division Obtains Nearly $250 Million in Back Wages — from The Wage and Hour Litigation Blog
• Can Employees Sue Over 401(k) Losses? Supreme Court to Decide — from WSJ Law Blog
• SCOTUS on ERISA Plan Limitations Provisions — from Phil Miles’ Lawffice Space
• Two Ohio Cases Highlight That When It Comes to the FMLA, Employers Need to Set Their Radars to Detect Potential Interference Claims — from Employer Law Report

Labor Relations

• NLRB’s New Top Attorney Threatens to Overturn Employer-Friendly E-Mail Decision — from The Blue Ink
• Department of Labor’s Persuader Rule Postponed to March 2014 — from Labor Relations Today
• Employers Beware: 2014 NLRB is Unrestrained and Ready for Activism — from Employment Law Watch
• What is “Just Cause” Termination for Unionized Employees? — from Minnesota Employer

Accuracy counts in drafting job descriptions (a lesson on ADA reasonable accommodations)

Do you have written job descriptions for all of your employees? Henschel v. Clare County Road Commission (6th Cir. 12/13/13) illustrates that if you’re going to claim that a job function is essential, you should probably include it in a written job description.

Wayne Henschel worked as an excavator operator for Clare County Road Commission. He lost his left leg above the knee in a motorcycle accident. His employer refused to permit him to continue operating the excavator, claiming that the ability to haul the excavator to the job site was an essential function of the position. Among the factors that the court of appeals used to reverse the trial court’s grant of summary judgment to the employer on Henschel’s ADA reasonable accommodation claim was the fact that it had omitted the hauling function from its Operator-Excavator job description.

Whether a job function is included in a job description is only one of seven factors courts consider in determining whether that function is essential to the job:

1. The employer’s judgment as to which functions are essential;
2. Written job descriptions prepared before advertising or interviewing applicants for the job;
3. The amount of time spent on the job performing the function;
4. The consequences of not requiring the incumbent to perform the function;
5. The terms of a collective bargaining agreement;
6. The experience of past incumbents in the job; or
7. The current work experience of incumbents in similar jobs.

In this case, the exclusion of hauling from the Operator-Excavator job description was not dispositive in the case, but it certainly didn’t help the employer’s cause.

Here are the practical takeaways for employers:

1. You should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also helps set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions.

2. Accuracy counts. It is hard to establish a job function as essential if it’s omitted from a written job description.

3. Conversely, just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors cut against you, you’ll have a hard time showing that a job function is essential no matter what your document says.

4. As jobs change, so should their written descriptions. It’s not enough to file away a job description after it’s prepared. You should periodically review it to make sure it’s current, and updated when needed because of changes to the job.

FAMILY Act would provide paid leave for employees

Tony Soprano once said, “Family: they’re the only ones you can depend on.” If Congressional Democrats get their wish, American workers will be able to depend on the FAMILY Act to provide up to 12 weeks of paid leave each year for the birth or adoption of a new child, the serious illness of an immediate family member, or a worker’s own medical condition.

Late last week, Representative Rosa DeLauro (D-CT) introduced H.R. 3712—the Family and Medical Insurance Leave Act of 2013 (aka, the FAMILY Act).

Five years ago, Ohio tried to enact its own paid sick leave law—the Healthy Families Act. At that time, I strongly opposed the OHFA, not because I’m against paid leave for employees, but because it was expensive for employers and would have labeled Ohio as unfriendly to businesses.

Here’s the key difference between the FAMILY Act, and Ohio’s old plan. The paid leave employees would receive under the FAMILY Act does not come out of ordinary payroll. It’s essentially an insurance benefit, paid by a nominal 0.2 percent payroll tax shared equally by the employer and the employee. As a result, employees would be eligible to collect paid-leave insurance benefits equal to 66 percent of their typical monthly wages, with a capped maximum of $1,000 per week for up to 12 weeks per year.

This solution seems like a win-win. The United States remains the only industrialized nation that does not guarantee working mothers paid time off after childbirth. This legislation would bring us up to par with the rest of the civilized world without imposing a significant monetary penalty on employers. I expect partisan lobbying on this bill, which could prevent it from progressing. That would be a shame, since I view the FAMILY Act as a business-friendly approach to solving one of our workplaces’ nagging problems.

[Hat tip: Eric Meyer]

Does the ADA cover organ donors?

Every now and again I come across a case that offends my sensibilities. Rope v. Auto-Chlor Sys. of Wash., Inc. (Cal. Ct. App. 10/16/13) is one of those cases.

When Auto-Chlor hired Scott Rope as a branch manager in September 2010, he told his new employer that he planned to donate a kidney to his physically disabled sister in February 2011. In November 2010, he formally requested a 30-day leave of absence for the kidney donation and his recovery thereafter. His manager promised to “look into it.” Instead, on December 30, 2010, he fired Rope.

The court had little issue concluding that Rope’s disability discrimination claim could proceed. “Rope has thus met his burden to show the adverse employment action occurred under circumstances raising a reasonable inference that the disability of his or her relative or associate was a substantial factor motivating the employer’s decision.”

A few points to consider about this case:

1. The ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person’s association with someone with a disability. Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. Thus, Rope could not claim that Auto-Chlor discriminated against him by denying time off as a reasonable accommodation.

2. California has a specific statute that requires 30 days of paid time off “to an employee who is an organ donor … for the purpose of donating his organ to another person.” Rope claimed that Auto-Chlor terminated him avoid having to incur the expense of his paid leave pursuant to that law, which, in turn, equated to disability discrimination. The court agreed.

3. Even without this specific organ-donation statute, however, the ADA likely nevertheless requires time off (albeit unpaid) for organ donation and the recovery thereafter. The ADA mandates that an employers avoid treating an employee differently than other employees because of an association with a person with a disability. Thus, if an employer grants time off to employees for their own surgeries, the ADA will require similar treatment to employees taking time off to donate an organ to one’s association or relation.

I’ve written before about the need to put the “human” back in “human resources.” This case is a textbook example. When Auto-Chlor hired Rope, it knew: (1) he had disabled sister, and (2) he needed time off to donate a kidney to her. Is is inconvenient for an employer to provide a month off to a new employee? Absolutely. Do you want to be in a position of defending your decision to fire that employee in the face of that leave request? Absolutely not. This decision is likely illegal, but it is also undoubtedly inhuman. It is that inhumanity that will cost your company dearly in front of a judge or a jury.

[Hat tip: HR Morning]

Is infertility fertile grounds for disability discrimination claims?

I’ve written before about employers getting themselves in trouble for pregnancy discrimination for firing employees while undergoing fertility treatments (here and here). Last week, the EEOC announced the settlement of case involving a different kind of “infertility” discrimination—the Americans with Disabilities Act.

A Hawaiian resort retailer will pay $60,000 for discriminating against an employee because of her fertility treatments and eventual pregnancy.… According to the EEOC’s suit, a female retail buyer in Honolulu informed the company that she began treatments for infertility in 2011. Upon disclosure of her disability, a company official allegedly made offensive comments about her intentions and became even less receptive upon disclosure of her pregnancy later that same year. The buyer was disciplined after disclosing her need for fertility treatments, and then discharged.… 

Timothy Riera, director of the EEOC’s Honolulu Local Office, added, “Federal law protects workers who are discriminated against due to their infertility, a covered disability. Workers who undergo fertility treatments should be treated like any other employee with a disability—with equal and careful consideration of reasonable accommodation requests.”

The EEOC’s approach to infertility as an ADA-covered disability is not novel. More than a dozen years ago, in LaPorta v. Wal-Mart Stores, Inc. (W.D. Mich. 2001), a federal court concluded that because infertility substantially limits the major life activity of reproduction, it was an ADA-covered disability. With the expansion of the definition of disability under the ADAAA, the Act’s coverage of infertility should not be in dispute. (In that case, Wal-Mart was accused of denying a single day off as a reasonable accommodation for the employee’s fertility treatment).

While this issue is seldom litigated, employers that fail to accommodate employees’ infertility treatments, or otherwise discriminate against employees undergoing fertility treatments, could see an explosion of these types of claims. As the EEOC reminds us, “One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other possible issues.” In other words, this issue is very much on the EEOC’s radar.

Infertility and its treatments are stressful on parents-to-be. Unless you’ve experienced a prolonged inability to conceive, and the fertility treatments that go along with it, it’s difficult to understand the stress it causes. Part of that stress is caused by the time away from work. Fertility treatments, particularly in vitro fertilization, are both time consuming and time sensitive. Do not exacerbate an employee’s stress by toying with their time away from work. Moreover, with this issue on the EEOC’s enforcement radar, employers that deny time off for fertility treatments may find themselves as the start of the EEOC’s next infertility-related press release.

WIRTW #300 (the “300th” edition)

Like a Spartan soldier raging into battle against the army of the Persian King Xerxes, I have ripped through 300 of these end-of-week compilations. Here’s the original post (Oct. 12, 2007) that started it all, so you can see how far we’ve traveled.

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

Discrimination

• What Happens in a “He Said/She Said” Case? A Trial — from Dan Schwartz’s Connecticut Employment Law Blog
• Discrimination award $27K, attorneys’ fee award nearly $700K — from Walter Olson’s Overlawyered
• Undue Hardship in the Financial Sense: A Viable Defense? — from Understanding the ADA
• FACT OR FICTION: Employers may discriminate based on family status — from Eric Meyer’s The Employer Handbook
• I Swear It Can Be Harassment: Workplace Profanity — from The Blue Ink
• Court Summarily Dismisses “Familial Status” Claim Under Title VII and the PHRA — from Currents: Hot Topics in Employment Law

Social Media & Workplace Technology

• A Game Changer For Employers: Embracing Mobile As Consumers Have — from TLNT
• Personal devices in the workplace: a recipe for cost savings or disaster? — from Technology for HR

HR & Employee Relations

• Top 9 HR Fails of 2013 — from Evil HR Lady, Suzanne Lucas
• Does LOVE Work as an Employee Relations Method? — from Mike Haberman’s Omega HR Solutions
• When Should An Employer Investigate? — from Workplace Investigations Blog
• Drafting an Employee Sick Leave Policy — from Corporate Counsel
• What rules must we follow if we must lay off work-visa employees? — from Business Management Daily
• Labor and Employment Law in the Vineyards — from Legal Tastings – A Wine Law Blog
• Does your employer own the entire contents of your head? — from Fortune Management & Career Blog
• Protected Status Of Trade Secrets May Be Lost By Not Insisting On Confidentiality — from Trading Secrets

Wage & Hour

• When Do You Have to Pay “Executive” Employees Overtime? — from The Emplawyerologist
• Eleventh Circuit Affirms Employer’s Directed Verdict Based On FLSA Outside Sales Exemption — from Employment Class Action Blog
• Great Expectations: Salesman’s Incompetent Performance Does Not Defeat Exempt Status — from The Wage and Hour Litigation Blog
• A Family and Medical Leave Act for the 21st Century — from DOL’s Work in Progress

SCOTUS

• SCOTUS Ruling on Forum-Selection Clauses Good News for Employers — from Molly DiBianca’s Delaware Employment Law Blog
• SCOTUS DIGs “most significant labor case in a generation” — from from Phil Miles’ Lawffice Space

A Festivus for the rest of us (at work)

Yesterday, Evil Skippy at Work answered a reader’s question about whether an employer can prevent its employees from celebrating Festivus in the workplace.

“What is Festivus,” you ask? “I’ve never heard of it.” Watch this short, five-minute instructional video, and then let’s talk.

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As you can see, Festivus, is not a religious holiday. It’s a parody, celebrated on December 23 as a non-commercialized alternative to the holiday season. According to Wikipedia, it started as a family tradition of Seinfeld writer Dan O’Keefe, who brought it into our collective consciousness by incorporating it into a 1997 episode of the show.

Which brings us back to the original question—can an employer ban Festivus at work? Because it’s a secular holiday, Title VII’s religious accommodation requirements do not apply. Unless, of course, it is an expression of an employee’s atheism, which is a “religion” Title VII protects and for which an employer must make a reasonable accommodation.

So, if the employee requesting a workplace Festivus Pole is doing so as an expression of his or her sincerely held atheism, then you should think long and hard before you deny the request. If, however, there is no religion supporting the request, then no law would prohibit you from banning Festivus at your company. Then again, why would you want to in the first place?

Regardless, if you are lucky enough to work for a company that embraces this holiday, consider it a Festivus Miracle.

Is social media a valid vehicle for harassment complaints?

A nuclear-medicine technician posted the following three items on her Facebook wall:

(At 9:00 am) Sara DeBord loves it when my boss adds an extra $600.00 on my paycheck for hours I didn’t even work ... awesome!!

(At 1:37 pm) Sara DeBord is sooo disappointed ... can’t believe what a snake my boss is ... I know, I know everyone warned me:(

(At 2:53 pm) Oh, it’s hard to explain. . . . basically, the MRI tech is getting paid for doing MRI even though he’s not registered and myself, nor the CT tech are getting paid for our areas ... and he tells me ‘good luck taking it to HR because you’re not supposed to know that’ plus he adds money on peoples checks if he likes them (I’ve been one of them) ... and he needs to keep his creapy hands to himself ... just an all around d-bag!!

Many of her coworkers saw the posts, including the “snake” of a boss with the “creepy hands.” Three different times, she denied authoring the posts when asked by HR. The hospital fired her a week later.

In DeBord v. Mercy Health Services of Kansas (10th Cir. 11/26/13), the court affirmed the dismissal of DeBord’s retaliation claim, concluding that thrice lying about posting information on Facebook, in addition to other violations, justified her termination.

In analyzing the retaliation claim, the court noted that the “Facebook post was not in accordance with Mercy’s otherwise flexible reporting system for sexual harassment complaints, and the post, by itself, did not provide any notice to Mercy.” Nevermind that, according to the court, “Mercy's management first received notice of this behavior … through a publicly available message on Facebook.”

An employer has a legal obligation to take reasonable steps to remedy harassment that it knows about, or should know about. This obligation not only exists when an employee makes a formal complaint under an employer’s “reporting system,” but also when an employer otherwise learns that harassment might be occurring. An employer cannot go into ostrich-mode in the face of workplace harassment.

My fear is that the DeBord court’s statement about the Facebook post not being in compliance with the employer’s “reporting system” could lead to employers thinking that it’s okay to ignore harassment complaints made on an employee’s social media page. Ignoring information about harassment is not okay. An employer does not have an obligation to look for problems on every employee’s Facebook, Twitter, etc. However, once an employer becomes aware of harassment or other unlawful conduct, it cannot pretend it doesn’t exist.

If you’re taking an employee’s deposition, don’t charge them for a day off work

Today’s blog post is a multiple-choice quiz.

An employee takes a day off work to attend his own deposition, which you are taking in defense of the employee’s discrimination lawsuit. Do you:

A. Charge the employee attendance disciplinary points for missing work to attend his deposition;

B. Permit the absence as unexcused with no points accumulated?

If you chose “A,” you might be liable for unlawfully retaliating against that employee, at least according to the court in Younger v. Ingersoll-Rand Co. (S.D. Ohio 12/3/13).

The attendance points at issue were assessed to discipline Younger for missing work to attend a deposition scheduled and noticed by the Defendant. Defendant’s scheduling of Younger’s deposition for a date and time when Younger also was scheduled to be at work at the very least placed Younger in a Catch 22 in which he risked discipline from the Court in the form of sanctions if he chose to skip the deposition to attend work or risked discipline in relation to his employment for missing work to attend the deposition.

Under the Supreme Court’s generous l adverse-action standard set forth in Burlington N. & Santa Fe Ry. Co. v. White, the court concluded that under the unique facts of this case, the assessment of disciplinary attendance points, albeit points that were later removed and resulted in no ultimate penalty, could constitute an adverse action.

Retaliation is a low standard for employees to meet. This case illustrates how carefully employers must treat when dealing with an employee who engaged in protected activity.

Medical marijuana and the Americans with Disabilities Act

Bailey v. Real Time Staffing Servs. (6th Cir. 10/29/13) involves an employee fired for a positive random drug test for marijuana. Unknown to the employer, Bailey was HIV positive and taking prescribed medication which could result in a false positive for marijuana. The court sided with the employer in affirming the dismissal of Bailey’s ADA lawsuit:

Bailey cannot show pretext if Real Time had an honest belief that he used illegal drugs… It is not clear that there was an error in the drug test at all, and Real Time went through a reasoned process by consulting with its medical review officer. Real Time had to decide whether to credit Bailey’s story or to credit the medical review officer’s. Its decision to credit the medical review officer’s does not support an inference of discriminatory animus. Even if the positive result was in fact false, an employer’s reliance on an erroneous result does not create a claim under the ADA absent an independent showing that the real reason for the firing was a disability.

This case raises an interesting question. Medical marijuana is legal in 20 states plus in the District of Columbia. Can an employer fire an employee who tests positive for legally prescribed marijuana? The ADA does not cover employees who are currently under the influence of illegal drugs. If legally prescribed, however, marijuana is not illegal. Thus, its treatment under the ADA is akin to any legally prescribed medication.

Here are four general thoughts on the handling of any legally prescribed medication under the ADA, including marijuana:

1. Blanket prohibitions are illegal. The ADA imposes on employer an obligation to make individualized inquiries about implications such as reasonable accommodations and direct threats. A blanket prohibition against on-the-job use of prescriptions medications violates this obligation.

2. Drug testing. Drug testing programs can include legally prescribed drugs. And employer cannot, however, have a blanket policy excluding from employment any employee testing positive for a prescribed drug. Instead, following a positive test, the employer should ask if the employee is taking any prescribed drugs that would explain the positive result.

3. Drug-free workplace policies. It is permissible to include prescription drugs in drug-free workplace policies. These policies can require employees to disclose prescription drugs that may adversely affect judgment, coordination, or the ability to perform job duties. After disclosure, an employer must, on a case-by-case basis determine whether it can make a reasonable accommodation that will enable the individual to remain employed.

4. Post-disclosure handling. After an learns that an employee is taking a prescription drug that may affect job performance, it should request a medical certification regarding the effect of the medication on the ability safely to perform essential job functions. That certification will enable the employer to engage the employee in the interactive process and making the individualized determination of whether a reasonable accommodation is even possible.

Employers are wary about letting anyone work while under the influence of any drugs, legal or illegal. As explained above, however, the handling of employees taking legal prescription medications is highly fact sensitive and legally nuanced. Your best course of action is to consult with experienced employment counsel before implementing any policies or taking any action against employees that implicate these complex issues.

WIRTW #299 (the “Yuletide confessions” edition)

I have confession to make. I’m a Jew who loves Christmas. I knew it from an early age. We’d leave temple on a December Friday night and swing by a few streets on the way home to check out the lights. I loved going to Feeney’s garden center in Feasterville, PA, to see the decorated trees and Christmas displays. Some of my best childhood memories are riding the bus downtown with my Grandmom Annie to see the Christmas Light Show at Wanamaker’s and the Enchanted Colonial Village at Lit Brothers. And, I couldn’t wait for A Charlie Brown Christmas and Rudolph the Red-Nosed Reindeer to air each year.

Now, I am part of an interfaith family, in which we celebrate both Hanukkah and Christmas. I’m so proud of my seven-year-old daughter, who, earlier this week, visited with her old first-grade teacher to share the story of Hanukkah with this year’s batch of first graders.

Despite my Jewish roots, I jokingly say I am 13 in Christmas years, since this the 13th Christmas my wife and I have spent together. And, For the record, despite my religiously diverse family, and despite Jon Stewart’s opposition of the “War on Christmas,” I am not opposed to people wishing others a “Merry Christmas.”

So, pick your poison: Merry Christmas, Happy (belated) Hanukkah, Happy Kwanzaa, or Happy Holidays. Whichever you choose, have a joy-filled December.

Here’s the rest of what I read the last two weeks:

Discrimination

• “Weight” Of Authority Leads To Denial Of Employer’s Summary Judgment Motion In Hotly Contested EEOC Pregnancy Discrimination Lawsuit — from EEOC Year-End Countdown
• Pregnancy isn't a workplace disability, but how about morning sickness? — from Eric Meyer’s The Employer Handbook Blog
• When employee has difficult pregnancy, don’t get creative with FMLA, ADA — from Business Management Daily
• Employee Who Was Repeatedly Sniffed by Co-Workers and Fired For Swatting a Fly May Bring Retaliation Claim — from The Employment Brief
• Employee Discrimination on a Genetic Level — from Corporate Counsel
• Termination of employee for entering alcohol rehab after a last chance agreement not necessarily a violation of the ADA — from Employment Law Matters
• Appellate Court Upholds Summary Judgment for Employer — from Dan Schwartz’s Connecticut Employment Law Blog
• Take Two? EEOC Moves For Reconsideration After Losing High-Profile Religious Discrimination Case Over Abercrombie’s “Look Policy” — from EEOC Year-End Countdown

Social Media & Workplace Technology

• “Using Social Media to Discriminate”: Please Read the Fine Print — from Currents: Hot Topics in Employment Law
• Email, Twitter and the always-on lifestyle: Today’s double-edged sword — from Boy Genius Report
• Cyber Monday is Here - 54% of Workers to Shop Online at Work this Season — from Phil Miles’ Lawffice Space
• With a Few Clicks of the Mouse You Can Uncover What Job Applicants Leave Off Their Resumes — from Employment Law Lookout
• How BYOD Can Really Help to Change the Way You Hire — from TLNT
• BYOD Policy and Best Practices for When Employees Leave — from i-Sight Investigation Software Blog
• How Corporations are Responding to BYOD  — from Social Media Strategies Summit Blog

HR & Employee Relations

• Children’s Books Helped Shape the American Workplace, Says the DOL — from HR Daily Advisor
• Reining in the costs of the U.S. litigation system — from PointOfLaw Forum
• What Your Employees Steal May Be Used Against You In a Court of Law — from Molly DiBianca’s Delaware Employment Law Blog
• Incivility… The Signs Aren’t Always Obvious — from Fistful of Talent
• Happy Birthday to the FACTA! The Often Forgotten Law that Imposes Obligations and Provides Helpful — from Employer Law Report

Wage & Hour

• Seventh Circuit Finds Insurance Company’s Internal “Answer Man” Proper Classified as Exempt Administrative Employee — from Wage and Hour Law Update
• New York Federal District Court Endorses Use of Fluctuating Workweek Overtime Payment Method Where Employer Pays Performance-Based Bonuses to Non-Exempt Salaried Employees — from Employment Matters Blog
• Pending Legislation Alert: FLSA Notices On Worker Classifications — from Mike Haberman’s Omega HR Solutions
• Are Your Employees Properly Classified Under the FLSA? — from The Emplawyerologist
• ERISA & The Affordable Care Act: A Primer — from The L•E•Jer

Labor Relations

• “Americanized Labor Policy Is Spreading in Europe” — from Overlawyered
• Walmart Should Have Listened To Me About Firing Striking Workers — from Donna Ballman’s Screw You Guys, I’m Going Home
• No Solicitation / No Distribution Policies Must be Applied Evenly — from Matt Austin Labor Law
• Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration — from Wyatt Employment Law Report
• NLRB's GC Determines That Employees Must Expressly Invoke Their Right to Access Employer Property When They are Part of a Larger Group — from Vorys on Labor

When an extended leave of absence is NOT a reasonable accommodation

Conventional wisdom says that when a sick or injured employee asks for time off, you should grant it within reason. For one, the EEOC says that hard-capped leave of absence policies violate the ADA. For another, if an employee, returning from an FMLA leave, asks for a few more weeks of leave, what’s the harm in providing a few extra weeks of unpaid leave?

Attiogbe-Tay v. SE Rolling Hills LLC (D. Minn. 11/7/13) provides hope to employers that under the right circumstances, an employer can refuse to extend an unpaid leave of absence without violating the ADA.

Attiogbe-Tay worked the night shift at a senior living facility (The Colony) as a Licensed Practical Nurse, caring for 160 assisted living patients. Her job description required her kneel, squat, and be able to lift more than 100 pounds. As the only LPN working the night shift, she would have to lift patients if they fell, sometimes with help from other staff members.

Following years of knee pain resulting from degenerative joint disease and arthritis, Attiogbe-Tay elected to have knee replacement surgery, for which her employer granted her 12 weeks of FMLA leave. She returned to work at the end of the 12 weeks with a note from her doctor clearing her to work, but restricting her for six weeks to no kneeling, squatting, or lifting more than 50 pounds. The company’s employee handbook provides: “If medical restrictions exist at the end of the leave, the company will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.” Instead of discussing potential reasonable accommodations with Attiogbe-Tay, her employer fired her.

In her disability discrimination lawsuit, Attiogbe-Tay argued that the company should have reasonably accommodated her by extending her leave for six additional weeks until her restrictions expired. The court, however, disagreed, concluding that while an “extended medical leave of absence” might be a reasonable accommodation, under the facts of this case it posed an undue hardship on the employer:

Here, Attiogbe-Tay was the only overnight LPN on duty. To cover Attiogbe-Tay’s shifts during her twelve-week FMLA leave, The Colony paid other nurses on its staff overtime and employed temporary LPNs from a staffing agency…. The Colony also bore considerable expense—$8,000 in additional staffing costs—as a result of Attiogbe-Tay’s twelve-week FMLA leave. Given The Colony’s relatively small staff size, its concerns over the quality of resident care, and the negative effects on its budget and staff, no reasonable jury could decline to find that the extended leave was an undue hardship…. As a result, Attiogbe-Tay was not qualified to perform the essential functions of the LPN position either with or without reasonable accommodations, and summary judgment is warranted.

Given the handbook violation by the employer, I’m surprised it won summary judgment. Nevertheless, this case illustrates that in the right circumstances, an employer can deny granting an extended medical leave without violating the ADA.

If you are planning on denying an unpaid leave as a reasonable accommodation, understand that these terminations are risky and will draw scrutiny from the EEOC. Employers should make sure they have documented (on a case-by-case basis) the following to support a claim of undue hardship, such that a court will not perceive your efforts as a sham to evade an obligation to extend a leave of absence as a reasonable accommodation:

• The cost of the accommodation.
• The employer’s overall size, number, composition, structure, and functions  of employees, and the financial resources.
• The financial resources of the facility in question, including the number of persons employed, and the effect of the accommodation on expenses, resources, and operations.
• The relationship of the facility in question to the overall operations of the employer.

5th Circuit upholds legality of class action arbitration waivers

D.R. Horton v. NLRB [pdf] concerns whether, under the National Labor Relations Act, an employer can enforce against its employees an arbitration agreement under which the employees agree to arbitrate all employment claims, but waive their right to do so as a class or collective action in any forum.

The NLRB had held that such an agreement violates the NLRA by unlawfully limiting the employees’ rights to engage in protected concerted activity.

Yesterday, in reviewing that NLRB decision, the 5th Circuit Court of Appeals disagreed, and overturned the NLRB’s efforts to invalidate all attempts by employers to ban class arbitrations.

In its ruling, the Court concluded that the Court had overstepped its bounds by ignoring the implication of the Federal Arbitration Act. The opinion is an interesting read for those interested in agency deference and statutory interpretation. Otherwise, all you need to know about this opinion is that class action waivers are legal, so long as employees cannot reasonably read them to restrict their right to file unfair labor practice charges with the NLRB.

Readers of my blog will know that I am not a fan of employment arbitration agreements. Nevertheless, for employers who favor this tool, this case is a huge victory in confirming the scope of how far an employer can go with such an agreement.

Don’t be a jughead by thinking that white men aren’t a protected class

A group of male employees of Archie Comics filed a gender discrimination lawsuit against their employer. They allege, among other things, that Nancy Silberkleit, the company’s co-CEO, constantly referred to them by their male anatomy instead of by name.

In her defense, Silberkleit claims that she cannot be liable because “white men” are not a class protected from discrimination.

Rest assured, that defense is a loser. Title VII does not just protect minorities from discrimination. It protects all employees from discrimination. Thus, a male employee enjoys the same rights as a female employee to a workplace free from discrimination, just as a white employee has the same rights a black employee. An employer cannot treat men differently than women, or whites differently than blacks, and the disparately affected and marginalized class (whether or not a historical minority) has a claim.

My advice to Nancy Silberkleit? Abandon your defense, get out your checkbook, and take some EEO training.

[Hat tip: BuzzFeed]

Sometimes, employees get what they deserve

At 10:35 Saturday morning, I was stopped at an intersection on my way home from dropping my daughter off at her band rehearsal. From the passenger seat of the car stopped next to me in the left-turn lane emerged a guy, mid-twenties, clad in Ohio State gear and holding a beer. After he slid out of the open door, he proceeded to start dancing in the middle of the intersection while “Hang on Sloopy” blared from the car’s radio. After a minute or so of this folly, the red light turned to a green arrow, he jumped back on the car, and it spend around the turn with his door still open.

My thoughts of what an ass this guy was quickly turned to cheers for justice as I saw the blue-and-reds of a police car fly past me to pull over the dancing fool. I didn’t stick around to see the end of the story, but my hope is that he missed Ohio State’s last-second victory over Michigan from the confines of the police station’s lockup. 

This guy clearly got what he deserved. No one should feel any sympathy that this early-morning partying clown likely missed the Ohio State / Michigan game. Yet, everyday, employers take pity on poor-performing employees. 

It’s okay to fire an employee. If expectations are communicated and not met, if an employee understands what needs to be done to succeed and misses the mark, or if an employee does not improve after a sufficient number of chances, then it‘s okay to let an employee go. Employers, however manage from a culture of fear. They fear lawsuits, which, in turn, paralyzes employment decisions. As a result, mediocre employees (or worse) keep their jobs. 

As we approach the new year, I’d like employers to resolve to break this chain of mediocrity. It’s okay to fire someone, as long as you’re not motivated by an illegal reason. Communicate your expectations, give your people a fair and reasonable chance to meet them, and, if they fail, cut bait. No one feels bad for the dancing Ohio State fan; don’t feel bad for the poor employee who has’t worked out. 

It’s a four-peat—ABA Journal again names the Ohio Employer’s Law Blog to its list of the top 100 legal blogs #Blawg100

The list of pro sports teams that have four-peated their respective championships is a short one:

• New York Yankees
• Boston Celtics
• Montreal Canadiens
• New York Islanders

It’s a rare feat indeed.

Thus, I am humbly honored that the ABA Journal has, for the fourth year in a row, named me to its list of the top 100 legal blogs, simply known as the Blawg 100.

According to the ABA Journal, the criteria for inclusion are “blawgs that are regularly updated, contain original content, opinion and/or analysis. Many are also on our radar because the Journal staff finds the posts useful in terms of tipping us off to news or generating posts we consider worthy of coverage.” As for me, the ABA Journal says that I’m included because of my “frank and conversational style of writing, and “the quality of analysis.” Yes, ABA Journal, I’m blushing.

My blog is listed alongside six others in the “Labor & Employment” category (the most robust blawging community, if you ask me), each of which is very deserving of inclusion (in no particular order): Dan Schwartz’s Connecticut Employment Law Blog (and congrats to Dan for his enshrinement in the Blawg 100’s Hall of Fame), Molly DiBianca’s Delaware Employment Law Blog, Eric Meyer’s The Employer Handbook, Jeff Nowak’s FMLA Insights, Donna Ballman’s Screw You Guys, I’m Going Home, and Seyfarth Shaw’s Trading Secrets. I am particularly proud to be in this group because I consider many of these people to be friends, friendships which developed out of our blogs.

So, as we move towards Thanksgiving, I am especially thankful to all of you who have read what I’ve written for the past six and a half years. Cheers! I’ll see everyone back on Monday, as we start the march to number five.

(If you are inclined to cast votes for your favorites among the Blawg 100, you can do so here, registration required).

Social media background checks as discrimination

I’ve long argued that employers take a risk when they use social media to vet job candidates without putting in place sufficient controls to prevent the disclosure of protected EEO information. Now, we have the empirical evidence to back me up.

Last week, the Wall Street Journal reported on a research study conducted by Carnegie Mellon University:

The study, … involving dummy résumés and social-media profiles, found that between 10% and a third of U.S. firms searched social networks for job applicants' information early in the hiring process. In those cases, candidates whose public profiles indicated they were Muslim were less likely to be called for interviews than Christian applicants. The difference was particularly pronounced in parts of the country where more people identify themselves as conservative. In those places, Christian applicants got callbacks 17% of the time, compared with about 2% for Muslims.

Thus, even though employers avoid asking applicants about taboo hiring subject such as religion, social media profiles, which might contain information such as quotes from religious tests or a “like” for one’s place of worship, could lead to the inadvertent discovery of an applicant’s religion, opening the door to unconscious and unintentional biases. 

What is the answer to this problem? According to one lawyer quoted in the WSJ article, “[I]t’s not a good idea to use social media as a screening tool.” 

That view, however, is short-sighted. It ignores all of the valid, legal information one can learn about an applicant from their social media pages—references to illegal drug use, posts of sexual or racist nature, poor communication skills, the disclosure of confidential information, or the trashing of an old boss or employer. The trick is discovering this “good” information while, at the same time, screening out the “bad” protected EEO information. How does a company accomplish this task? My answer to this question hasn’t changed:

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.

For more information on this timely and important issue, please join me on December 5 at 1:00 pm, when I’ll be the special guest on a webinar hosted by Newton Software, entitled, Avoiding the Biggest Pitfalls of Social Recruiting.

WIRTW #298 (the “thankful” edition)

My daughter’s homework last night was to interview five people about what they are thankful for, and summarize the interviews in a short book. She chose to ask her brother, her grandparents, her guitar teacher, and our dog (bonus points for second-grade creativity). Since I did not get the chance to participate, I thought I’d use this space to list what I’m thankful for this year.

A loving and supportive wife, two amazing children, health and happiness, that my children still have all four of their grandparents, doggie daycare, my firm (which has been overwhelmingly supportive of this blog for six and a half years), and all of my subscribers, readers, and followers.

If you’re so inclined, feel free to share your list in the comments below, or on Twitter with the hashtag #OELBThankful

Happy Thanksgiving to everyone. I’ll have fresh content Monday and Tuesday, and will be taking the rest of next week off.

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

Discrimination

• Third Circuit Decision in Transgender Discrimination Case — from Phil Miles’ Lawffice Space
• You Want to Work Where? Working From Home As a Reasonable Accommodation — from Employment Law Lookout
• Being At Work Is An Essential Job Function — from The Blue Ink
• EEOC issues discussion points on permissible uses of “integrity testing” — from Employment Law Matters
• Court Finds Odor Sensitivity May Be Disability under ADAAA — from The Employment Brief
• Employee medical exams and the law - how much do you know? — from Robin Shea’s Employment and Labor Insider

Social Media & Workplace Technology

• “My Employee is on Facebook Four Hours a Day. What Do I Do?” — from Dan Schwartz ‘s Connecticut Employment Law Blog
• Employee Privacy and Smart Phones: Even if Employers Give Phones to Employees, Don't Read Personal Content! — from Wisconsin Employment & Labor Law Blog
• Yes, you can get fired for trashing your company on Facebook — from Ragan.com
• 10 Social Media Statistics You Might Not Expect — from Social Media Strategies Summit Blog
• What the Internet Of Things Will Bring to the Workplace — from Innovation Insights
• Personal devices in the workplace: a recipe for cost savings or disaster? — from Technology for HR
• The Circle: Transparency as Prison — from HR Examiner with John Sumser

HR & Employee Relations

• Don’t Ever Apologize for Being a Good Parent, and Other Lessons for Hard-Working Women — from Fast Company
• Parental Leave in the US Really Does Suck — from Fistful of Talent
• Background Check Selfie: Good for Job Seekers, Employers Beware — from employeescreenIQ Blog
• How to Accidentally Hire a Convicted Felon — from TLNT
• It Was The Added “0” That Did It—Among Other Things — from Suits by Suits
• ‘Tis The Season To Be … Sick? — from Manpower Employment Blawg
• HR Lessons from TV’s Parks and Recreation — from Blogging4Jobs

Wage & Hour

• How Much Does It Cost To Make A Wage And Hour Case Go Away? — from The Wage and Hour Litigation Blog
• Surf’s Up: Riding The Wave Of Unpaid Intern Lawsuits — from The Wage and Hour Litigation Blog
• FACT OR FICTION: Giving a part-time employee full-time hours may be FMLA retaliation? — from Eric Meyer’s The Employer Handbook Blog
• Worker With “Crying Spells” After Daughter Was Raped Can Bring FMLA Claim — from Atlanta Employment Lawyer Blog

Labor Relations

• NLRB Digging Deeper Into Corporate Labor Practices — from Corporate Counsel
• NLRB: “Merit” in Some Charges Against Walmart Concerning Handling of Employee Protests — from Joe’s HR and Benefits Blog
• Double Take — An NLRB Win For Employers? — from Social Media Employment Law Blog
• NLRB, UFCW, and Walmart: A Tail of Two Hours Time — from LaborPains.org
• The reach of the NLRA — from Michigan Employment Law Connection
• Is Federal Labor Law Keeping Unions, Employers from Finding Common Ground? — from Law.com
• NLRB will seek to impose revised union election rules again soon — from The Human Race Horses

photo credit: rustiqueart via photopin cc