Has social media created too much workplace transparency?

I have two confessions to make: 1) I don’t read much anymore, at least not for pleasure. 2) I can’t do work on airplanes.

“How are these related,” you ask? I used to read a lot. Now, though, I do all my reading at work. After a long day of reading briefs, and motions, and cases, the last thing I want to do at night is read more. The only time I read is when I fly. I don’t enjoy business travel, but I do enjoy the few hours of solitude with a good book (unless the guy sitting next to me knocks back 4 vodka-OJs in the first 10 minutes of the flight and then falls asleep on my shoulder while he continuously passes wind — true story).

On Monday I was in Houston on an injunction hearing attempting to enforce a non-compete, which meant that on Sunday night and Monday evening, I had dedicated airplane-pleasure-reading time. My book of choice was The Circle, by Dave Eggers. It tells the story of a Bay-area company that has cornered the market on social media and e-commerce, through the eyes of one of its new superstar employees, Mae.

Early in Mae’s employment, she gets called into HR because she failed to respond to a co-worker’s online request that she attend his Portugal-themed party. Mae had, years earlier, posted pictures of a trip to Lisbon on her Circle page, which led this co-worker to believe that she liked all things Portuguese, which, in turn, caused his turmoil when she ignored his party invite.

I tell this part of the story in response to an article I came across yesterday on Philly.com, entitled, How social media has changed the way co-workers bond (hat tip Eric Meyer). The article hypothesizes:

Social networking has made it easier to form personal relationships with co-workers. On sites such as Facebook and Instagram, where people share their likes and dislikes, family photos and new hobbies, people gain insight into colleagues that could provide the basis for forging stronger workplace bonds.

Which is true. But, with transparency comes responsibility. What had previously been a trivial interpersonal matter (a declined invite) becomes a potential HR matter. How much you permit your employees to connect on social media sites will, in part, depend in how much of their personal lives you want leaking into your workplace, balanced against the ease of connectivity and relationship formation.

Nevertheless, today’s ignored invitation could be tomorrow’s harassment complaint. There is no right or wrong answer to this question. It is a decision guided by corporate culture and risk tolerance. What is important, however, is to make the decision and communicate it to your employees in your social media policy, so that everyone understands your culture and its impact on your social media expectations and limitations.

Oh, and go read The Circle. It’s fabulous.

Why we put plaintiffs to their proof

Because of the relative newness of the issue, it always seems newsworthy when the NLRB issues a social-media decision. World Color (USA) Corp. (NLRB 2/12/14), however, is much ado about nothing, but nevertheless reminds us of the importance of the process of litigation to the outcome of litigation.

John Vollene, a press room operator at World Color and member of his union’s bargaining committee, made several posts on his personal Facebook page critical of his employer. Vollene was Facebook friends with several co-workers, including his shift supervisor, Arvil Bingham. Shortly after Vollene’s posts, World Color’s employees voted to decertify the union. Shortly thereafter, the company reassigned Vollene as part of a restructuring of its pressroom operators. When Vollene asked Bingham why he was being reassigned, Bingham implied that management knew about his Facebook posts.

The NLRB concluded that Vollene had not proven that he had not been reassigned in retaliation for his Facebook posts, which could have constituted protected concerted activity:

However, the record here does not include a printout of Vollene’s posts, and it provides scant evidence regarding their nature. It reveals neither that the posts concerned terms and conditions of employment, nor that the posts were intended for, or in response to, Vollene’s coworkers. The testimony indicates only that Vollene posted unspecified criticisms of the Respondent and unspecified comments about the Union over a period of 5 or 6 months, and that he responded to another person’s initial post. The record does not identify that individual either by name or as a coworker. Based on this limited evidence, we will not infer that Vollene’s posts amounted to protected concerted activity. That Bingham’s statement implied that the Respondent had reacted adversely to critical posts is insufficient to bridge the evidentiary gap here.

Do not read too much into this decision. An employee’s Facebook posts critical of his or her employer can constitute concerted activity protected by section 7 of the NLRA. In this case, however, the NLRB concluded that because there was no evidence presented of the specific posts at-issue, or how Vollene’s co-workers responded to them. Thus, Vollene had not proven his case.

I have little doubt that if Vollene had put on evidence of the specific posts, and his co-workers reaction to them, this case could have turned out differently. This case serves as a good reminder of why we, as employers and their lawyers, put plaintiffs to their proof. A lawsuit is merely a collection of unproven facts. No law has been violated until a plaintiff  proves those facts through evidence. If the plaintiff doesn’t have the evidence to support the alleged facts, the plaintiff loses. That’s what happened here, which illustrates the importance of the litigation process to the outcome of cases.

Mind your internal emails to avoid discrimination issues

Shazor v. Professional Transit Mgmt., Inc. (6th Cir. 2/19/14), interests me for two reasons. First, it discusses and applies a “sex-plus” theory of discrimination to save a plaintiff’s race discrimination and sex discrimination claims from the summary-judgment scrap heap. “Sex-plus” recognizes that race and sex are not mutually exclusive, and protects African-American woman as a class of their own. I commend Shazor to your reading list for its interesting narrative on this issue.

I want to discuss, however, the other interesting aspect of Shazor—the evidence the plaintiff used to avoid summary judgment. She submitted various emails between two corporate executives, in which they unflatteringly referred to her as a “prima donna,” “disloyal, disrespectful,” and a “hellava bitch.” Shazor successfully argued that these emails were code for “angry black woman” or “uppity black woman.” The court used these emails as prima-facie evidence of discrimination in support of her “sex-plus” claim.

Emails is a powerful communication tool. It’s also very permanent. I’ve been saying this about social media for years, but perhaps it’s time to remind employers that communication is communication, no matter how it’s transmitted. If you don’t want something to appear on the front page of the newspaper, or to be read in front of a judge or jury, don’t put it in writing. Don’t email it, don’t text it, don’t Facebook it, and don’t tweet it.

“I have a solution,” you say. “What about apps like Confide, which erases a text message as soon as the recipient reads it.”

While these apps seem like a perfect way to communicate under the radar, their use for business purposes gives me great pause. The intent of this class of apps is to delete communications. I could very easily see a court, confronted with evidence that people have this app on their iPhones and use it for business communications, have willfully destroyed evidence. Spoliation and evidence destruction discovery sanctions would result. For this reason, I believe that company mobile-device policies should police the use of apps like Confide, Snapchat, and their message erasing ilk. And, while your reviewing your policies, mix in some training for your employees about the responsible use of electronic communications.

Is obesity the same as a green mohawk?

It’s been a few months since I’ve written about the growing trend of plaintiffs trying to shoehorn obestity-discrimination claims under the Americans with Disabilities Act. At his Employer Handbook Blog, Eric Meyer brings us the story of Powell v. Gentiva Health Services, in which a 5’ 3”, 230 pound woman claimed that she was fired because her employer perceived her as disabled on account of her morbid obestiy.

The district court did not buy her argument, likening one’s obestity to a green mohawk:

Plaintiff’s argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an “undesirable” physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a “physical or mental impairment” within any rational definition of the phrase. 

The court continued, however, by envisioning a scenario in which weight could be an ADA-protected disability:

Of course, … an employer may perceive an employee’s overweight status to constitute a physical impairment. For example, suppose an employer believes that an overweight job applicant cannot climb a ladder, or walk across a parking lot, or climb flights of stairs, and therefore does not hire the overweight individual for a job that requires such activities. That might give rise to “regarded-as” status for an ADA claim in the post-ADAAA world. But that is not what we have here.… Powell points to not a shred of evidence that Gentiva viewed her weight as a physiological disorder that affected any of her body systems.  

Here’s where I think this court got this issue wrong. If making sales is an esential function of the job (and, given that Powell was a salesperson, it’s safe to assume that makes sales was an essential function of her job), then I don’t see how making sales is any different than climbing a ladder, at least as far as the ADA’s “regarded-as” scheme is concerned.

Powell did not lose her claim because the ADA does not protect obesity. Powell lost her claim because she had absolutely no evidence that her employer considered her obese, let alone considered her weight in making its decision to fire her.

Whether or not the ADA protects obesity as a disability is an issue that the courts will debate for years. While there is no clear answer, given the breadth of the ADA’s coverage, employers take a big risk when firing an overweight employee because of his or her weight. So, what’s the easy answer on how to handle this issue? Don’t take appearance into account when making employment decisions. Hiring and firing should be image-blind, performance-only decisions. If you stick to that principle, the obesity-as-disability debate should never enter your workplace.

WIRTW #308a (the “big block of cheese” edition)

Tomorrow marks the 177th anniversary of President Andrew Jackson opening the White House doors to the public to share his 1,400 pound block of cheese. You read that correctly. The President of the United States, (1) owned a 1,400 block of cheese; (2) which he kept in the White House; (3) the doors of which he opened to 10,000 Washingtonians; (4) who took all of two hours to devour it whole. Mental Floss has the entire story, which includes Old Hickory’s apparent love of all things cheddar.

Try to wrap your 2014 brain around that.

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

Discrimination

• Scales (Of Justice) Tip In Favor Of Employer On Overweight Employee’s ADA Claims — from The Employment Brief
• Gender-Neutral Employee Called “Miss” and “Lady” Files Lawsuit — from Phil Miles’s Lawffice Space
• What Can the ADA Do For You? Court “Delivers” Blow To UPS By Allowing EEOC’s Challenge To Its Leave Policy — from EEOC Year-End Countdown
• Prompt Handling Of Sex Harassment Complaint Keeps Safeway Safe — from The Employment Brief
• Does the EEOC Try To Intimidate Employers? — from Employment Discrimination Report
• She Looks Nice... Let’s Hire Her! — from Compensation Café
• 8th Circuit Holds "Stressed Out" Employee's Disability Discrimination Claims Fail When Nature of Job — from Wisconsin Employment & Labor Law Blog
• What’s a “sex-plus” claim? — from Warren & Associates Blog
• Am I Being Targeted For Layoff Due To My Age? — from Donna Ballman at AOL Jobs

HR & Employee Relations

• Miami Dolphins Investigation Good Example of Well-Done Internal Workplace Investigation — from WinWinHR
• Documents, documents, documents: What to keep, what to shred — from HR Hero Line
• There Were No Mice Available? Testing Noncompetes and Motivation in Settings That Don’t Sound Much Like Employment — from Currents: Hot Topics in Employment Law
• Waffle House Shows Atlanta How to Handle a Snowstorm — from You’re the Boss Blog
• Statistics Say We Should Take Friday Off From Work. All The Fridays, Forever And Ever. — from Upworthy

Wage & Hour

• What Happens At Home When Your Employee Takes FMLA Leave in Vegas? — from Dan Schwartz’s Connecticut Employment Law Blog
• Chefs and Employment Law: A Valentine’s Day Post — from Molly DiBianca’s Delaware Employment Law Blog
• 3 minor leaguers claim Major League Baseball violated the Fair Labor Standards Act — from Eric Meyer’s Employer Handbook Blog
• Donning and Doffing, Oh My. — from Michigan Employment Law
• Withholding Pay for Employees Who are Absent During Inclement Weather — from i-Sight Investigation Software Blog
• What does it mean to be salaried? — from Evil HR Lady, Suzanne Lucas
• If They’re Not On Your Payroll Do You Still Have to Pay Them Overtime??? — from The Emplawyerologist

Labor Relations

• Non-union employers should pay attention to the NLRB – here’s why — from Robin Shea’s Employment and Labor Insider
• Political Dirty Tricks Thwart Effort to Unionize Tennessee VW Plant — from Chris McKinney’s Texas Employment Law Blog
• Is a “new unionism” emerging in TN? — from The Human Race Horses
• Union THUGs Face the Fuzz — from LaborPains.org
• New NLRB rules coming, protests on the rise — from Mike Haberman’s Omega HR Solutions
• Past Practices: Usually Not an Employer’s Friend — from Matt Austin Labor Law

Do you know? OSHA protects employees from retaliation for reporting injuries

Like many states, Ohio has a statute that protects workers from retaliation for filing a workers’ compensation claim. But that statute is not the only one that protects the rights of employees injured on the job. OSHA also protects employees from retaliation for reporting workplace injuries.

Case in point: the U.S. Department of Labor recently filed suit against Ohio Bell, claiming that it wrongfully suspended 13 employees who had reported workplace injuries to their employer, according to the Cleveland Plain Dealer.

And, these cases are only becoming more prevalent. According to the Wall Street Journal, in the last decade the number of workplace injuries has decreased by 31 percent, while the number of retaliation claims stemming from workplace injuries has doubled. In other words, employees are getting hurt less, but claiming retaliation more.

The Plain Dealer article quotes Dr. David Michaels, assistant secretary of labor for occupational safety and health, “It is against the law for employers to discipline or suspend employees for reporting injuries.” I think we can agree with Dr. Michael that this type of retaliation is illegal and shouldn’t happen.

Let’s suppose, however, that this employer wasn’t disciplining employees for suffering on-the-job injuries, but instead was disciplining employees for violating established safety rules. Doesn’t an employer have a legitimate interest in enforcing its safety rules to deter future violations and create a safer workplace, even if it results in discipline or termination? How does an employer walk this line without arousing the DOL’s ire?

• For starters, you can treat all employees the same, based on the severity of the safety violation, and regardless of whether the injured employee self-reported the injury or not. Thus, you can start to build a case that safety, and not retaliation, guided your decision-making.

• And, you should make safety a priority. Have clear written safety rules for employees to follow. Train your employees on your rules and others safe-workplace principles. Institute regular safety meetings. Creating a workplace built around safety is not only better for your employees, but it will help you show that you prioritize safety, not retaliation, if an injured employee (or the government) brings suit.

In the meantime, know that the DOL is watching this issue, these types of claims are increasing, and you take a risk of a retaliation claim if you terminate an employee who reported a workplace injury.

Is there such a thing as online picket lines? Not according to the NLRB

When is a picket line not a picket line? Apparently when the protests take place online, at least according to the NLRB’s opinion in Amalgamated Transit Union, Local Union No. 1433 (NLRB 2/12/14) [pdf].

In the case, certain employees took to their union’s Facebook page to post threatened comments to co-workers who refused to participate in the union’s strike against their employer.

• Prior to the strike starting, one of the posts threatened, “THINKING of crossing the line. THINK AGAIN!” Sixteen people commented on that post, included one that wrote, “If u cross … you will lose your eyesight … from the 2 black eyes.”
• On the second day of the strike, another employee posted on the union’s Facebook page: “We found them!! We found out where they are housing the scabs.  We will be setting up lines at the hotel tomorrow.” Thirteen people comments on that post, including one that asked, “Can we bring the Molotov Cocktails this time?”

The employees argued that the union violated the National Labor Relations Act by not deleting or otherwise disavowing the statements posted on its Facebook page. The NLRB, however disagreed:

Respondent’s Facebook page is in no way “an electronic extension” of its picket line…. A picket line serves a purpose quite distinct from that of the Facebook page. A picket line proclaims to the public, in a highly visible way, that the striking union has a dispute with the employer, and thus seeks to enlist the public in its effort to place economic pressure on the employer….

In contrast, Respondent’s Facebook page does not serve to communicate a message to the public. To the contrary, it is private….

Unlike a website in cyberspace, an actual picket line confronts employees reporting for work with a stark and unavoidable choice: To cross or not to cross. Should someone acting as a union’s agent make a threat while on the picket line, the coercive effect is immediate and unattenuated because it falls on the ears of an employee who, at that very moment, must make a decision concerning the exercise of his Section 7 rights….

This decision displays a fundamental misunderstanding about social media. Nothing about social media is private. Is is public, interactive, and immediate. Even if the page on which the employees were posting was a “private” page or group, nothing stops employees from sharing the content via prints or screen caps. I am concerned that the agency that has taken such an active public stance regulating social media in the workplace appears to have such a fundamental misunderstanding about how this media operates.

Can you have a one-person reduction-in-force?

Yesterday’s New York Daily News ran the following headline: “Long Island man, 76, sues company for age discrimination after ‘workforce reduction’ of one man.” The article suggests that there is something nefarious or underhanded about a layoff of one.

In reality, provided the layoff is bona fide, the number of people included is irrelevant. What is a bona fide layoff? According to one Ohio court:

In determining whether a valid work force reduction occurred, the key inquiry is whether or not the employer replaced the plaintiff. If an employer did not replace the plaintiff, but rather consolidated jobs in order to eliminate excess worker capacity, then a work force reduction took place.

In other words, it’s not a question of quantity, but one of quality. It does not make a difference if the layoff includes one employee or 100 employees, provided that those eliminated are not replaced.

This distinction is not one without a difference. Whether a job loss qualifies as a reduction-in-force matters. Workforce reductions require plaintiffs to come forward with additional evidence (direct, circumstantial, or statistical) to support an inference of age discrimination. Otherwise, the employer’s legitimate non-discriminatory reason (the economic necessity for the layoffs) will carry the day.

So, New York Daily News, I take issue with your headline. Yes, it is perfectly legal to have a one-person layoff, provided it is bona fide, and not a subterfuge to hire younger.

From the archives: wage-and-hour audits

Today is Presidents’ Day, which means that many are not at work. I am not one of those many. I’m in the office today, preparing for a client’s wage-and-hour audit, which the Department of Labor will be conducting tomorrow.

I noticed that I haven’t written in some time about these audits. So, in lieu of fresh content, today I’m digging deep into the archives (all the way back to December 2007), to re-share Department of Labor investigations highlight important wage and hour compliance issues.

---

The Cleveland Plain Dealer reports that the U.S. Department of Labor has found that housekeepers working in Ohio hotels are routinely underpaid. Indeed, in wage and hour audits conducted in 2007, the DOL reports that only 28% were in full compliance with federal wage and hour laws. As a result, it has promised “a ‘significant’ number of hotel investigations in 2008 and reinvestigations of some of the employers it already found in violation of wage requirements,” according to the PD.

Speaking from experience, the DOL audits companies in one of three instances: randomly (which seldom happens), after receiving a complaint, or as part of a targeted initiative against a particular industry or class of businesses. These hotel investigations fall into the latter category.

If you find yourself being audited, the DOL will examine your wage and hour records for the past two years to ensure that all non-exempt employees have been paid at least minimum wage and overtime for all hours worked in excess of 40. It will also look at child labor issues if you employ any minors. The DOL may examine whether salaried employees are properly classified as exempt. Finally, it may interview employees to gather additional information. It will then make recommendations for changes, and try to reach a resolution as to any back overtime and wages. If the employer fails to cooperate, or is a repeat offender, it may request that the Solicitor General’s office file an enforcement action in federal district court.

There is no way to prevent an audit from occurring, but you should self-audit your company’s wage and hour practices to help get a clean bill of health if the DOL calls. Look at your personnel, payroll, and time records to make sure your are retaining everything the FLSA requires. Reevaluate positions and job descriptions for proper exemption classifications. It should go without saying that if you are not paying minimum wage, or overtime to non-exempt employees, start doing so immediately. With the new year quickly approaching, I’d like to see all businesses make a resolution to get their wage and hour practices in order during this year.

WIRTW #308 (the “Calling Dr. Love” edition)

Today is Valentine’s Day. People will send each other more than a billion cards. If some of those cards are sent in your workplace, you might want to read the following, from deep in the archives:

• Nothing can go wrong when employees date each other, right? 
• Patrice O’Neal on sexual harassment (NSFW)
• Can George Costanza sue for sexual harassment or retaliation?
• When office romances go bad
• Top 10 reasons not to date at work

You can also read the following, posted elsewhere this week:

• Love, Sex and Office Romance — from CostofWork
• Office Romances Rock If Your Workplace Is Like College — from Workplace Diva
• Should HR Prevent Office Romances? — from Talent Zoo
• Cupid’s Arrow Can Be Painful — from BusinessWest
• How To Have A Secret Office Romance — from Business Insider

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

Discrimination

• You, Biased? No, It’s Your Brain — from Workforce
• 50 Years Ago, The Civil Rights Act of 1964 Passes the House of Representatives — from Jottings By An Employer’s Lawyer
• The Civil Rights Act Was Not As Important As You Think — from New Republic
• New EEOC stats: Charges down, retaliation up — from Business Management Daily
• EEOC’s Lawsuit Challenging CVS Separation Agreements Is a Big Deal — from Dan Schwartz’s Connecticut Employment Law Blog
• What’s the best way to talk to pregnant employees? — from Warren & Associates Blog
• “Steering” Is 2014’s New Twist on Discrimination — from HR Daily Advisor
• Temporary disabilities and the ADA — from Understanding the Americans with Disabilities Act

Social Media & Workplace Technology

• Two-thirds of Americans now have smartphones — from Engadget Mobile
• Employees Won’t Stop Bringing Phones to Work, but That’s Not Necessarily Bad — from Mike Haberman’s Omega HR Solutions
• 3 Things to Consider Before Having A Bring Your Own Device Policy — from Blogging4Jobs
• Computer Fraud and Abuse Act claim dismissed where plaintiff failed to adequately plead loss or damage — from Internet Cases
• Delaware Supreme Court Rules On Admissibility of Facebook Evidence — from Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• In defense of work — from Robin Shea’s Employment and Labor Insider
• The high cost of turnover — from Evil HR Lady, Suzanne Lucas
• A Dose of Office Gossip May Help Your Group Run Smoothly — from Lifehacker
• Are you using the correct forms to conduct background checks? — from HR Hero Line
• How to spot a lying employee — from MonsterThinking
• Workplace Investigations – Dealing with the Aftermath (Part 2) — from WinWinHR
• Whole Foods Hit With FCRA Class Action For Background Checks — from employeescreenIQ Blog

Wage & Hour

• The FLSA Applies to Public Sector Employers, Too — from Pennsylvania Labor and Employment Blog
• Wage and Hour Snow Storms — from Jonathan Segal
• “I’m beat, time for my break!” Rest and Meal Periods under the FLSA. — from Michigan Employment Law
• Avis Loses De-Cert Motion In Shift Managers FLSA Collective Overtime Action — from Wage & Hour - Development & Highlights
• New bill in Congress will revamp FMLA to cover smaller employers — from Eric Meyer’s The Employer Handbook Blog
• Employment Law IQ: FMLA Interference – What Would You Do? Southwest Florida HR Law & Solutions
• FMLA 20-Year Anniversary: How Does Your Company Measure Up? — from In House

Labor Relations

• Player-union attempt gets under way — from ESPN
• NLRB and Wal-Mart Face Off Over Strikes — from Corporate Counsel
• The Obama NLRB and confidentiality rules — from Michigan Employment Law Connection
• Overview of Union Access Rights to Shopping Centers — from Matt Austin Labor Law

Until next week:

Does inevitable disclosure protect your company’s trade secrets? It depends.

The most straightforward manner in which to prevent a former employee from jumping ship to one of your competitors is to have the employee sign a non-competition agreement. Absent a written agreement by an employee not to compete, however, are you out of luck if you want to stop an key employee with knowledge of sensitive corporate information from competing? The answer depends on what state you are in, and, more specifically, that state’s view of the inevitable disclosure doctrine.

The inevitable disclosure doctrine is an off-shoot of PepsiCo, Inc. v. Redmond (7th Cir. 1995), which upheld a preliminary injunction against a former Pepsi general manager that prevented him working for Quaker Oats (the manufacturer of Gatorade). What makes the case unique and important is that Redmond never had a non-compete with Pepsi. Instead, the court upheld the injunction because Redmond had detailed and comprehensive knowledge of Pepsi’s trade secrets, such that it was inevitable that he would disclose Pepsi’s trade secrets to Quaker Oats through his employment in a substantially similar position.

In the nearly 20 years since the PepsiCo decision, courts have debated the applicability of the inevitable disclosure doctrine to stop an employee, without a non-competition agreement but with knowledge of trade secrets, to work for a competitor in a similar capacity.

In sum, the issue boils down to whether your state’s trade-secrets law prohibits threatened misappropriation of trade secrets in addition to actual misappropriation.

• Thus, in Lumenate Technologies, LP v. Integrated Data Storage, LLC (N.D. Ill. 11/11/13), the court permitted the plaintiff to make an inevitable disclosure argument based on the Illinois Trade Secrets Act’s prohibition against the threatened misappropriation of trade secrets.

• Meanwhile, in Exal Corp. v. Roeslein & Associates, Inc. (N.D. Ohio 12/27/13), the court dismissed the plaintiff’s claim under Ohio’s trade secret act. The court pointed out that Ohio’s statute specifically prohibits “actual or threatened misappropriation,” a threat means something more than mere speculation. The former employer must put forth evidence of a demonstrable risk of misappropriation. In Exal, this showing was lacking.

The lesson from this post isn’t really the differences in the application of the inevitable disclosure doctrine. Instead, consider this post a lesson on the importance of written agreements. If you have a written non-competition agreement, you need not worry about threatened versus actual misappropriation. More specifically, if you have employees who are privy to sensitive information, or who otherwise present a serious risk of competition, require a non-competition agreement as a condition of their employment. Otherwise, you are taking a huge risk with your trade secrets and other confidential information.

More on the EEOC’s position on retaliation in severance agreements: A proposed solution

Yesterday, I reported on a lawsuit the EEOC has filed, claiming that some fairly generic terms in an employee severance agreement constitute illegal retaliation. In EEOC v. CVS, the agency claims that an agreement that attempts to limit an employee’s communication with the EEOC unlawfully attempts to buy employee silence about potential violations of the law.

I try to shy away from hyperbole, but OH MY GOD, THIS CASE COULD BE RUINOUS!!!

When you compare the inoffensiveness of the provisions challenged in CVS to the hard-line position put forth by the EEOC, you begin to understand why this case has the potential to be most significant piece of litigation the EEOC has filed in recent memory.

Employers settle lawsuits and pay employees severance in exchange for certainty. Employer don’t write checks to litigants (or potential litigants) out of the goodness of their hearts. They do so because they want to get rid of claims and potential claims. The provisions with which the EEOC has taken issue — a general release, a covenant not to sue, cooperation, confidentiality, non-disparagement, and the payment of attorneys’ fees upon a breach — are crucial for employers. You’d be hard pressed to find an agreement that does not contain some combination of most, if not all, of these provisions.

Yes, the anti-retaliation provisions of the employment discrimination laws prohibit employers from requiring that employees give up their statutory rights to file discrimination charges, cooperate in investigations, or provide information to the EEOC. But, the CVS agreement that the EEOC is challenging did not contain those requirements.

Instead, the challenged agreement expressly protected the employees’ statutory rights:

Moreover, nothing is intended to or shall interfere with Employee’s right to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, nor shall this Agreement prohibit Employee from cooperating with any such agency in its investigation. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any Released Claim brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

In re-reading the EEOC’s complaint, the agency seems to take issue with two key facets of the challenged agreement:

1. The carve-out existed as a “single, qualifying sentence” in the “Covenant Not to Sue” section of the Agreement.
2. The carve-out did not expressly touch all of the challenged provisions in the Agreement.

Don’t shred your settlement and severance agreements just yet. As a I promised yesterday, I have a potential solution. Modify your agreements to bolster and clarify the protected-activity carve-out. In a provision separate and distinct from the release, waiver, or covenant not to sue, consider something like the following (modeled on the provisions in CVS).

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws (including, but not limited to, Title VII, the ADA, the ADEA, GINA, USERRA, or their state or local counterparts) to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of the non-disparagement, confidentiality, or cooperation clauses of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

I cannot understate the potential significance of the EEOC’s position in CVS. This case bear monitoring, and I will continue to update you as the case proceeds. In the meantime, consider adopting changes to your stock separation and settlement agreements; the EEOC is definitely watching.

EEOC claims retaliation over garden-variety severance terms

The EEOC announced that it has filed a lawsuit against CVS, claiming that a severance agreement it provided to three employees unlawfully restricted their rights to file discrimination charges or communicate and cooperate with the EEOC.

The EEOC claims that “CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print.”

What was the “fine print” that caused the EEOC to sue this employer? The EEOC did not specify in its news release, but the complaint the EEOC filed  took issue with the following provisions:

1. A cooperation clause, which required the employees to notify CVS’s general counsel upon receipt of, among other things, an administrative complaint.

2. A non-disparagement clause, which prohibited the employees from making any statements that disparage or harm CVS’s reputation. (I told you I don’t like these provisions.)

3. A confidentiality clause, which prohibited the employee from disclosing any personnel information.

4. A general release, which included any claims of discrimination.

5. A covenant not to sue, which prohibited the employee from filing any complaints, actions, lawsuits, or proceedings against CVS, but which expressly carved out the employee’s right to participate in, or cooperate with, any state or federal discrimination proceeding or investigation.

6. An attorneys’ fees provision, which required the employee to reimburse CVS for its reasonable attorneys’ fees incurred as the result of a breach of the agreement by the employee.

According to EEOC Regional Attorney John Hendrickson, the lead litigator in the case:

Charges and communication with employees play a critical role in the EEOC’s enforcement process because they inform the agency of employer practices that might violate the law. For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make.

This case has the potential to be very significant, and warrants monitoring. Most (all?) of you reading this post have used agreements that contain language similar to each of the six issues the EEOC is challenging. If the EEOC is successful in this lawsuit, employers will have to reconsider key provisions in their severance and settlement agreements. Given that employers are paying ex-employees for certainty when an employee signs a release, this case has the potential to turn these agreements on their heads.

In tomorrow’s post, I will offer a potential solution for employer looking to maintain the vitality of a general release and covenant not to sue without walking into the EEOC’s enforcement crosshairs.

Another one bites the dust: NLRB invalidates confidentiality policy

If I’ve said it once, I’ve said it a thousand times — employers cannot maintain policies that restrict their employees’ ability to talk about how much they earn.

Thus, it shouldn’t surprise anyone that, in MCPc, Inc. (2/6/14) [pdf], the NLRB concluded that the following policy illegally restricted employees’ rights to engage in protected concerted activity:

Dissemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination.

As the NLRB pointed out, the standard isn’t whether the policy actually restricted employees from discussing wages or other terms and conditions of employment with their coworkers, but whether they would reasonably construe the policy to have that effect. Never mind that in MCPc, Inc., the employer fired an employee for discussing with co-workers staffing shortages that resulted from a perception of high executive salaries.

You can draft a confidentiality policy that will not run afoul of protected-concerted-activity rights under the NLRA; you just have to draft narrowly. Thus, limiting discussion of trade secrets and other confidential, proprietary information is just fine. Wages and other terms and conditions of employment, however, are off limits, which should be clear from the policy. And, of course, don’t fire an employee for talking about wages or working conditions. I wonder how the NLRB would have even learned about MCPc’s overly broad policy if the company hadn’t fired a worker for violating it?

WIRTW #307 (the “Piet Mondrian” edition)

Today’s theme is a lesson in minimalism.

Here’s what I read this week:

Discrimination

• Fired For Reporting Dollar Bill With Swastikas And Noose On A “Blackened” George Washington Leads To Jury Award — from Employment Discrimination Report
• Do Managers Have a Bias For Hiring Attractive People? — from TLNT
• Employee claims discrimination, then her friend gets fired. Is that retaliation? — from Eric Meyer’s The Employer Handbook Blog
• An Employee Took Documents from her Employer to Support her Discrimination Claim and You Won’t Believe what Happened Next — from Toil and Trouble
• If men and women work the same number of hours, what is so unfair? — from Evil HR Lady, Suzanne Lucas
• EEOC Seeks Reversal of “Cherry Picked” Decision Regarding Criminal and Credit Checks — from All in a Day’s Work
• Employee acts as own lawyer? You’ll need to be patient — from Business Management Daily

Social Media & Workplace Technology

• Pass Along to Your Employees: Passwords to Avoid — from HR Daily Advisor
• She “tweeted” what?! — from EmployerLINC

HR & Employee Relations

• Are You One Cold (Or Super Bowl Flu) Away From Being Fired? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Dazed and Confused About Medical Marijuana in the Workplace? Dude, It’s Just Starting — from Dan Schwartz’s Connecticut Employment Law Blog
• “But I’m a Whistleblower!”: Is an Employee Who Takes Confidential Documents Invincible? — from Trading Secrets
• Terminating an “At-Will” Employee: A Free Ride or Potential Time Bomb? — from CPEhr
• Why we need to take more time off from work — from Ragan.com
• my boss seems annoyed when I stay home every time it snows — from Ask a Manager
• Workplace Investigations — Dealing with the Aftermath — from WinWinHR

Wage & Hour

• Read this if you don’t want to overpay your salaried employees — from HR idiot
• Paid Sick Leave: Is it Worth it to Businesses? — from WSJ.com Law Blog
• FLSA Exemptions are about DUTIES not Titles — from Mike Haberman’s Omega HR Solutions
• A refresher on the breastfeeding at work rules — from Warren & Associates Blog

Labor Relations

• Super Bowl Ad Calls for Employee Rights Against Union Abuse — from LaborPains.org
• College Athletes to Unionize? More on the Northwestern University Football Players NLRB Petition — from Labor Relations Today
• They’re Ba-ack: NRLB to Re-Propose Election Regulations — from Labor Relations Update
• NLRB Proposes Amendments to Election Rules — from Phil Miles’s Lawffice Space
• Breaking: #NLRB posts new quickie election rules — from The Human Race Horses
• NLRB Proposed New/Old Election Rules — from Workplace Prof Blog

Proposed ambush election rules offer the best reason to be proactive about union avoidance

Last week I suggested that a pro-union NLRB has emboldened labor unions into more aggressive organizing efforts. You need not look any further than yesterday’s news that the NLRB has reissued its ambush-election rules.

According to the Wall Street Journal, the median time between the filing of a representation petition by employees, and the NLRB holding an election in a contested organizing campaign, is 59 days. The NLRB’s proposed rules would cut that time by more than half, to a lightning-quick 25 days or less.

Make no mistake, this proposal is primarily designed to help labor unions win elections. Often, an employer does not know that a labor union is attempting to organize until after the representation petition is filed. By that point, the union and its organizers have already planted the seeds of employer discontent with workers, leaving the employer to play catch-up. The quicker the election period, the less time the employer has to spread its message. Thus, these rules, if they take effect, will be a big win for labor unions.

There are two things you can do, right now, to protect yourself.

1. The NLRB is taking comments until April 7 on these proposed rules. Write to your Senator. Write to your Congressman. Talk to your trade and business organizations. Compel anyone you can to take a stand against these rules and hope for a more reasonable outcome.

2. Heed my call from last week to take steps now to formulate, and communicate to your employees, your corporate message on labor unions. The importance of having your strategy in place before a union comes knocking will be even more important if these new election rules take hold.

I (don’t) “like” this protected concerted activity

Last October, in Bland v. Roberts, the 4th Circuit held that a Facebook “like” qualifies as speech protected by the First Amendment. As we know, however, the First Amendment does not apply to private workplaces, in which employees do not enjoy constitutional free speech rights. Employees do, however, enjoy the right to talk among themselves about wages, hours, and other terms and conditions of employment—concerted activity protected by the National Labor Relations Act.

Soon, the NLRB will decide whether an employee clicking the “like” button on another employee’s Facebook post or comment is sufficient to qualify as protected concerted activity.

In Triple Play Sports Bar [pdf] (h/t: Wall Street Journal Morning Risk Report), an Administrative Law Judge

Spinella’s selecting the “Like” option on LaFrance’s Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity. Spinella’s selecting the “Like” option, so that the words “Vincent VinnyCenz Spinella…like[s] this” appeared on the account, constituted, in the context of Facebook communications, an assent to the comments being made, and a meaningful contribution to the discussion. [T]he Board has never parsed the participation of individual employees in otherwise concerted conversations, or deemed the protections of Section 7 to be contingent upon their level of engagement or enthusiasm. Indeed, so long as the topic is related to the employment relationship and group action, only a “speaker and a listener” is required.

As much as it pains me, the ALJ’s reasoning is sound. Speech is speech, whether it’s engaging in an oral conversation, writing a comment to a Facebook post, or clicking “Like.” Liking something on Facebook is akin to an endorsement of, or agreement with, the comment liked.

To paraphrase what I wrote when commenting on the the Bland v. Roberts decision, protected concerted activity rights likely extend to symbolic speech on social networks, such as liking a Facebook page or post, or retweeting someone’s tweet. I would expect the NLRB to agree with the ALJ when it announces its decision later this year. In the meantime, employers need to take heed before taking action based on these online activities.

Deterring the wage-and-hour scofflaw

The New York Times reported late last week that a Manhattan Domino’s Pizza franchisee has settled a wage-and-hour class action lawsuit for $1.28 million.

Sixty-one delivery drivers alleged that managers told them that they would only be paid for 40 hours per week, no matter how many hours they worked. The drivers alleged that they often worked more than 40 hours in a week, sometimes as many as 65. The awards range from $61,300 to $400 per delivery person, depending on length of employment.

I suppose cases like this one shouldn’t stun me, but they still do. I’m appalled that employers, in 2014, remain ignorant about, or, worse, deliberately ignore, their obligations under the wage-and-hour laws. And, I’m not talking about the law’s minutia, like payment for travel time, or calculating an overtime rates on performance bonuses. I’m taking about the basics, such as you have to pay overtime to non-exempt employees who work more than 40 hours in a week.

Some argue that stories like this one illustrate that we need tougher wage-and-hour laws to deter employers from stealing wages from their employees. I think the laws are tough enough. $1.28 million is a tough nut for any business to swallow. Instead, we need education. For the ignorant, we need to teach them about the FLSA and its complex web of requirements. For the scofflaws, we need to continue to publicize cases like the Domino’s Pizza settlement in the hope that they get the message. The laws we have are more than sufficient to protect employees’ wages, provided we do our share to secure compliance.

Is regular attendance an essential job function when an employee asks for time off from work?

I’ve written before about the need for employers to handle with care an employee’s request for unpaid time off as a reasonable accommodation under the ADA. And, I’ve also written about the hard line the EEOC has taken against hard-capped leave of absence policies.

All is not lost, however, for an employer who needs to deny a leave of absence to a sick or injured employee, provided that the circumstances are right and the requests is handled correctly.

To be eligible for protection under the ADA, an employee must be a “qualified” individual with a disability. “Qualified” means that the employee must be able to perform the essential functions of the job with, or without out, a reasonable accommodation. If regular attendance is a bona fide essential function of the job, than an employee who needs a leaves of absence as his or her only accommodation will not be “qualified,”
entitling an employer to deny the accommodation request.

“Isn’t regular attendance essential to every job,” you ask? Unfortunately, in the context of the ADA, the answer is “no.”

Attendance may be an essential function of a job, provided that the circumstances warrant such a finding.

• Is an organization sufficiently staffed such that an employee’s job functions can be performed in his or her absence?
• Will the employer sustain added overtime costs as a result of an employee’s absence?
• Will the employer have to hire substitute employee(s) to cover for the absent employee?
• Does a written job description list attendance as an essential function?
• Does the employer have formal policies providing for leaves of absence, or otherwise have a history of granting leaves to employees?

In other words, does the proposed accommodation impose an unreasonable and undue hardship on the employer? If the answer is yes, then attendance is an essential function, and a leave of absence cannot be a reasonable accommodation.

The Southern District of Indiana recently examined this issue in EEOC v. AT&T Corp. In that case, AT&T denied a leave of absence to an employee, Lupe Cardona, needing time off for Hepatitis-C treatments. AT&T argued that regular attendance was an essential function of the employee’s job as a customer service specialist. The court disagreed, and concluded that a jury should make the ultimate determination:

1. The only evidence AT&T submitted in support of its argument that attendance was an essential function of the job was the disciplinary notices it provided to Cardona for her absences.
2. The job description for Cardona’s position failed to list attendance as an essential function.
3. AT&T maintains 22 different leave-of-absence plans, which belies its claim that attendance is an essential function.

As the court pointed out in AT&T, “regular attendance is important in any job.” Important, however, does not always equate to essential. The bona fides must support the claim. Given the hard line the EEOC has drawn against the rote denial of leaves of absence as an ADA accommodation, employers should make a careful determination before denying a leave of absence as a reasonable accommodation. You might be able to support the decision based on attendance as a reasonable accommodation, but, as the AT&T case illustrates, you must have the facts to support your decision.

WIRTW #306 (the “donning and doffing” edition)

Earlier this week, the U.S. Supreme Court issued its first employment decision of 2014, Sandifer v. U.S. Steel [pdf], which held that the time employees spent donning (putting on) and doffing (taking off) their protective gear is not compensable under their collective bargaining agreement by operation of section 203(o) of the Fair Labor Standards Act. For background on Sandifer, see my coverage of last October’s oral argument. For more on section 203(o) of the Fair Labor Standards Act, see my coverage of a 2010 6th Circuit opinion, which Sandifer reversed. For more on the Sandifer opinion, see the following from my blogging brethren:

• Opinion analysis: “Clothes” are items commonly regarded as articles of dress — from SCOTUSblog
• SCOTUS resolves one unclarity of federal wage and hour law — from Walter Olson’s Overlawyered
• Donning, Doffing and “Changing Clothes”: Supreme Court Says When Employees Get Paid — from Dan Schwartz’s Connecticut Employment Law Blog
• The Supreme Court on FLSA, donning, doffing, and Daft Punk! — from Eric Meyer’s The Employer Handbook Blog
• Supreme Court Defines “Changing Clothes” under Section 203(o) of the FLSA — from Minnesota Employment Law Report
• What the Supreme Court’s Decision on Donning and Doffing DOES NOT MEAN! — from Jonathan Segal
• SCOTUS: No pay for time spent donning and doffing protective gear — from Ross Runkel Report

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

Discrimination

• The EEOC and “English-Only” Policies in the Workplace — from Wisconsin Employment & Labor Law Blog
• Five employer lessons from ADAAA “temporary injury” decision — from Robin Shea’s Employment and Labor Insider
• The EEOC Has A Cow, And Now Must Raise Its Beef On Appeal — from Workplace Class Action Litigation
• Retaliation 201 – you can’t retaliate against someone associated with a person who engaged in protected activity — from Warren & Associates Blog
• Interactive Process is a Must — from The Blue Ink
• Maintaining a religious-neutral workplace — from EmployerLINC
• “Men Who Seduce Like Cavemen” – Sexual Harassment The Way It Was In The US 50 Years Ago — from Employment Discrimination Report
• Dear Evil Skippy: How Long Do We Have To Ignore My Co-Worker’s Obvious Pregnancy? — from Evil Skippy at Work

Social Media & Workplace Technology

• This microsite is one endless, creepy conference call — from The Verge
• Time to Log Off? Take Care When Crafting Workplace Internet Policies — from TLNT

HR & Employee Relations

• Employers Should Have a Bill of Rights — from Evil HR Lady, Suzanne Lucas
• Are You a Co-Employer? — from The Emplawyerologist
• Judges Fuerst and Joseph Russo Join Judges O’Donnell and McMonagle on Cuyahoga CP Commercial Docket — from Cleveland Law Library Weblog
• Fired for What!? - Farting While Singing — from Lawffice Space
• On Entitlement, Regardless Of Your Generation — from Shankman Blog
• Send a non-compete demand letter – buy yourself a lawsuit? — from Trade Secrets & Non-Compete Blog

Wage & Hour

• Students Are Now Employees? OSHA Issues Citations to Vocational Rehabilitation Center for Alleged Safety Violations — from Employment Law Lookout
• Court Makes A U-Turn and Decertifies Class At Trial — from The Wage and Hour Litigation Blog
• A Minimum-Wage Hike Could Help Employers, Too — from Harvard Business Review
• Hours Worked: To Suffer or Permit…. Who Talks Like That? — from Michigan Employment Law

Labor Relations

• Is College Football “Work”? Employment Law Worldview
• Northwestern Football Players File Representation Petition with the NLRB — from Workplace Prof Blog
• NLRB Rescinds “Quickie Election” Rules, But New Election Rules Could be Issued Later This Year — from Labor Relations Today