The wage-and-hour implications of the NLRB’s Northwestern football player ruling

By now you’ve likely heard that yesterday a regional director of the National Labor Relations Board ruled that Northwestern University’s scholarship athletes are “employees” of the university covered by, and entitled to organize under, the National Labor Relations Act. Labor Relations Today has one of the best summaries and analysis of the opinion I’ve read.

Before everyone starts forecasting the end of college athletics, we need to the remember that this opinion is only the opinion of one person. This case is far from over. Northwestern has already said that it will appeal to the full NLRB in Washington. No matter the result there, the losing party will appeal again to the 7th Circuit. Ultimately, the Supreme Court may weigh in. In other words, this case is years from a resolution. In the meantime, however, expect more petitions to be filed by other groups of athletes at other universities seeking to organize.

The implications of this story, however, go beyond labor unions and the NLRA. If student athletes are “employees” under the NLRA, it is not that much of a stretch for a court to conclude that they are also employees under other federal statutes, like the FLSA. If the FLSA covers college athletes, they are entitled to be paid at least the minimum wage, plus overtime for any hours worked more than 40 in a week. To calculate their regular rate of pay, one would prorate the value of their scholarships over the number of weeks “worked,” and then again by the number of hours worked in each week.

The universities will have arguments. Are their football programs exempt as seasonal? Are the student athletes exempt as creative professionals? These arguments, however, are a stretch. I believe there is a serious risk that if scholarship athletes are “employees” (and that remains a big if), then they are likely owed minimum wage and overtime. In other words, the Northwestern case has huge implications beyond collective bargaining.

This story will continue to evolve over the next many years, and I will keep you updated throughout its twists and turns.

"Motorboating" = $567K harassment verdict

A Galveston, Texas, jury has awarded $567,000 in damages to a former deputy constable who claimed sexual harassment by his former boss. The catch is that the harasser is female and the victim is male.

James Gist claimed that his former boss, Pam Matranga, gave him unwanted lap dances and forced him to “motorboat” her by placing her shirt over his head and holding his face against her breasts.

For her part, Matranga did not deny that she let employees put their heads under her shirt. The Daily Mail quotes her testimony: “If anybody was in a bad mood, like if Phil was in a bad mood, I would say, ‘Phil,’ or to anyone, ‘Do you need to go under the shirt?’ She also claimed, however, that she never asked Gist to go “under the shirt” because he thought it was “creepy.” Clearly, the jury did not believe her.

This case illustrates two important points:

1. Harassment is harassment, whether its a male-on-female, or female-on-male. As long as the harassment is “because of sex,” it’s illegal. Employers that ignore a female harassing a male employee, or don’t take it seriously because “men can handle it,” do so at their own risk. 
2. When complaining of harassment, it can be enough for an employee to complain to the manager/harasser. In this case, one of the employer’s chief defenses is that Gist never complained to management. Gist admitted that he did not complain because he feared retaliation, but that he did tell Matranga that her behavior made him uncomfortable and for her to stop. The court found that sufficient. As Eric Meyer recently pointed out on his Employer Handbook blog, an employee whose only complaint to management about harassment is to the harasser himself (or herself) may be enough to satisfy the employee’s required internal complaint.  If complaining to the harasser is sufficient, employers need to be extra vigilant in spotting harassment, and stepping in each time something seems amiss in the workplace, with or without the receipt of a complaint. 

Please, please, please … be careful what you email

Darren Wyss claims that his former employer, Compact Industries, demoted him on the basis of his gender and replaced him with a female. Wyss’s immediate supervisor was Tracey Brown, one of the company’s owners, and the sister of Michael Brown, another owner. After Wyss’s demotion, Michael emailed his sister, “You demoted Darren without telling me? … Darren is a good worker, too bad he’s male.”

Based on that email, the court—in Wyss v. Compact Indus. (S.D. Ohio 3/12/14)—had little trouble denying the company’s motion to dismiss the sex discrimination lawsuit.

It is reasonable to infer that Michael Brown knew of his sister’s motive for demoting Wyss and was referring to that motive in this email. This plausibly suggests that the decision to demote Wyss, who was otherwise a “good worker,” was motivated by Tracey’s intent to discriminate against men. 

Nothing good comes from putting statements like “too bad he’s male” in emails, or text messages, or voice mails, or any other form of communication. Those words should never leave your lips, let alone flow forth from your fingers in anything typed. Michael Brown may have a logical, non-discriminatory explanation for his statement … or at least he better before he gives his deposition. Even with an explanation, however, his misstep makes his company’s case that much more difficult. Do your damndest to avoid the same miscue.

It's still illegal not to hire someone because they have HIV

Twenty years ago, Tom Hanks won the Best Actor Oscar for his portrayal of Andrew Beckett, a man with AIDS fired by his law firm because of his condition. Last week, the EEOC announced that it has filed suit against Maxim Healthcare Services, a Pittsburgh medical staffing company, for its refusal to hire someone because he was HIV-positive.

The EEOC quotes its Philadelphia District Director, Spencer H. Lewis, Jr., “HIV status does not categorically preclude individuals from working in the health care field. Refusing to hire someone because he is living with HIV is not only shameful, it is a blatant violation of federal law.”

He’s absolutely correct. The ADA protects HIV as a disability. It’s illegal to refuse to hire someone because of disability. Therefore, if the EEOC can connect the dots, this employer is going to have issues. Don’t make the same mistake. Hire blind. Don’t disqualify someone purely because of a medical condition unless that medical condition prevents that person from performing an essential function of the job that a reasonable accommodate cannot cure.

WIRTW #312 (the “overtime” edition)

Earlier this week, I reported on the White House call for the Department of Labor to “fix” the overtime regulations for exempt employees. Here’s what some of my fellow blawgers had to say on this issue:

• What Mr. Obama’s call for new overtime rules means to you — from Mike Haberman’s Omega HR Solutions
• White House Aims to Give More Workers Overtime Pay — from Corporate Counsel
• Mr. President, You want to fix overtime? Good, but please fix it all! — from Michigan Employment Law
• Overtime scheme more dangerous to economy than minimum wage hike — from Overlawyered
• Obama Proposes New Overtime Regs — from Phil Miles’s Lawffice Space

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

Discrimination

• The “N-Word” – “Still A Problem In The American Workplace” — from Employment Discrimination Report
• “Protected class” and the 6th circuit — from Michigan Employment Law Connection
• Is it unreasonable to tell your boss to stop sexually harassing you? — from Eric Meyer’s The Employer Handbook Blog
• ADA: What to do when employee won’t cooperate — from Business Management Daily
• Is the EEOC the New VOGUE? Technical Assistance Publications on Religious Dress and Grooming Released — from All in a Day’s Work
• EEOC Sues Nursing Home, Says It Should Have Accommodated Ill Worker by Shorter Workday — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Do You use Social Media to Recruit? — from The L•E•Jer
• More From The #Jury Box: The Latest on Juries and Social Media — from Augmented Legality
• Why No Wi-Fi? New Workplace Sensitivity Issue to Worry About — from HR Daily Advisor
• BYOD Growth and Midsize Firms — from Midsize Insider

HR & Employee Relations

• The Joy of SOX: What employee activity is "protected"? — from Robin Shea’s Employment and Labor Insider
• Do You Self-Censor At Work? — from Lifehacker
• How to stop bullying in the workplace — from Evil HR Lady, Suzanne Lucas
• Breaking Bad Habits: If Your Resolutions Are Slipping Away — from Ohio Family Law Blog
• How to Have Friends at Work When You’re the Boss — from Harvard Business Review

Wage & Hour

• Up is Down and Outside is Inside? With FMLA, Not Quite Common Sense — from Connecticut Employment Law Blog

Labor Relations

• NLRB files petition for rehearing in D.R. Horton (class arbitration) case — from ADR Prof Blog
• Suit Claims UAW/VW Neutrality Agreement Violates LMRA — from Labor Relations Today
• NLRB continues quest to expand its authority — from EmployerLINC

What a slick union-avoidance campaign looks like

If you’re a $72 billion company that happens to be staunchly anti-union, and money is no object in the education of your employees about how and why the cons of a labor union will undermine the pros of your company and its culture, this is what you get.

Gawker has published Target’s 14-minute employee training video, entitled, “Think Hard: Protect Your Signature.” It espouses the benefits of Target’s open-door and other HR policies, while warning employees about the risks of signing a union authorization card. The video is worth your time (but watch soon, before the inevitable cease-and-desist).

You, however, don’t need billions of dollars of revenue to craft a slick, YouTube-able union avoidance message. You can deliver the same themes in a conference room, with someone (like your friendly neighborhood labor lawyer) talking to your workers. For example, take a look at my post from earlier this year, A Lesson on Union Avoidance, which discusses Wal-Mart’s more low-tech approach, and how you can incorporate some of its themes in your communications to your employees.

The point, however, regardless of the delivery you choose, is to have a message to deliver. It’s part of what I call the TEAM approach to union avoidance:

     Train supervisors
     Educate employees
     Accessibility
     Modernize policies

Understanding that union avoidance starts as soon as an employee walks in your door about applying for a job, and not as soon as a labor union approaches your employees about signing authorization cards, is the first step in honing the right strategy that will keep your company union free.

Lactation at work requires reasonableness on both sides

Photo by Joelk75, via Flickr, cc

Both of my children were formula-fed. It wasn’t for lack of lactation effort. We (or, more accurately, she) tried to feed each naturally. My daughter’s birth followed 72 hours of awful labor, from which we were not sure my wife was going to make it (that’s a story for another day), and my son just did not want to eat. So for reasons that made perfect sense to us, we fed both exclusively by formula. The “lactation specialists” at the hospitals were not happy with us, and they let us know all about it. What they failed to do, however, was talk to us. It was a one-sided conversation, which failed.

In Ames v. Nationwide Mutual Ins. (8th Cir. 3/13/14), Angela Ames claimed that Nationwide discriminated against her because of her sex and pregnancy by not providing her access to a room in which to lactate. We know that lactation discrimination equates to pregnancy discrimination, and yet, in Ames, Nationwide won. Why?

Nationwide won because it had a lactation policy that provided employees reasonable access to a private room to express milk, and because Ames refused to even consider an accommodation when a room was temporarily unavailable.

Nationwide’s lactation policy allowed employees to gain badge access to its lactation rooms after completing certain paperwork that required three days processing. Even though Ames had not completed the required paperwork, the company nurse requested for her immediate access to a lactation room. While the company was processing the request, the nurse suggested that Ames use one of the company’s wellness room, which would become available in 15 or 20 minutes. In tears, Ames quit her job and sued.

The court explained its reasoning for affirming the trial court’s dismissal of Ames’s sex and pregnancy claims:

Ames was denied immediate access to a lactation room only because she had not completed the paperwork to gain badge access. Every nursing mother was required to complete the same paperwork and was subjected to the same three-day waiting period. Further, Hallberg [the nurse] tried to accommodate Ames by allowing her to use a wellness room as soon as it was available and by requesting that Ames receive expedited access to the lactation rooms.… That Nationwide’s policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.

The moral of this story is that evidence of open conversations with your employees about accommodations wins lawsuits. Nationwide won because it tried to work with Ames to find a temporary solution to her problem. Ames lost because she refused to be reasonable under the circumstances. Conflict requires a give-and-take, not a give-and-give. As long as an employer can show equal enforcement of policies, coupled with an effort to work with an employee, most lawsuits will resolve in the employer’s favor. The lactation folks at the hospitals refused to work with us, and they lost their battle. Nationwide tried to work with Ames, and, because she refused, it won their lawsuit. Let this case be a lesson to you, not only in dealing with the unique needs of lactating employees, but in resolving all conflict within the workplace.

Examining the low standard for adverse actions in retaliation claims

Mark Laster worked as a Public Safety Officer/Emergency Officer for the Kalamazoo Department of Public Safety for more than 23 years. After complaining to his superiors that the department was treating him differently because of his race, he alleged that he was denied training opportunities and privileges, singled out for violating at least two department policies that were selectively enforced against him, and disciplined more harshly than his peers for identical violations. 

The district court, however, dismissed Laster’s Title VII retaliation claim, concluding that none of the challenged actions were materially adverse sufficient to support a claim of retaliation. 

The 6th Circuit disagreed. Laster v. City of Kalamazoo (3/13/14) hi-lights the low standard for establishing an “adverse action” to support a retaliation claim:

Plaintiff’s burden of establishing a materially adverse employment action is “less onerous in the retaliation context than in the anti-discrimination context.” … “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” … “This more liberal definition permits actions not materially adverse for purposes of an anti-discrimination claim to qualify as such in the retaliation context.”

Thus, the 6th Circuit concluded that the trial court had erred by dismissing Laster’s retaliation claim:

Facing heightened scrutiny, receiving frequent reprimands for breaking selectively enforced policies, being disciplined more harshly than similarly situated peers, and forced to attend a pre-determination hearing based on unfounded allegations of wrongdoing might well have dissuaded a reasonable worker from making or supporting a charge of discrimination. There is a genuine issue of fact regarding whether or not Plaintiff was subject to materially adverse action, and whether Plaintiff’s protected activity was the cause of such action.

By way of contrast, the 6th Circuit also concluded that the same set of facts could not legally support Laster’s constructive discharge claim under Title VII, because of the higher “adverse action” standard under a Title VII disparate treatment claim.

What does all this legal jargon mean from a practical standpoint? It means that when an employee complains about discrimination, or otherwise engages in protected conduct, you must treat that employee with kid gloves. Any action you take against that employee, which one could view as reasonably dissuading any employees from engaging in other protected conduct, will likely be “adverse” under Title VII’s anti-retaliation protections.

Employees who complain aren’t bulletproof, and you can still discipline or terminate a worthy employee, even on the heals of complaint about discrimination or other protected conduct. You must, however, tread very carefully, and make sure that all your i’s are dotted and t’s are crossed, because even the slightest misstep could ring the retaliation bell.

A call for the DOL to fix what is wrong with our wage-and-hour laws

Last week, President Obama called upon the Secretary of Labor to “modernize and streamline the existing overtime regulations.” According to the President, the “regulations regarding exemptions from the Act’s overtime requirement, particularly for executive, administrative, and professional employees (often referred to as ‘white collar’ exemptions) have not kept up with our modern economy. Because these regulations are outdated, millions of Americans lack the protections of overtime and even the right to the minimum wage.”

I could not agree more with the President that the FLSA’s regulations are outdated. In fact, I’ve been calling for a streamlining of the FLSA for nearly three years:

Congress enacted the FLSA during the Great Depression to combat the sweatshops that had taken over our manufacturing sector. In the 70+ years that have passed, it has evolved, via a complex web of regulations and interpretations, into an anachronistic maze of rules that even the best-intentioned employer cannot hope to comply with. I would bet any employer in this country a free wage and hour audit that I can find an FLSA violation in your pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive. Instead, what employers and employees need is a more streamlined system to ensure that workers are paid a fair wage.

President Obama, Secretary of Labor Perez, and members of Congress, take this opportunity to do something historic and write wage-and-hour legislation and regulations that make sense for 2014. Don’t just increase the current salary level from the current $455 per week to qualify for the white-collar exemptions. That change will do nothing more than create new classes of non-exempt workers. Employers won’t start paying them overtime; instead they will figure out how to limit their hours worked to keep that wages the same.

Instead, use this Presidential call-to-action as an opportunity to examine the entire legislative and regulatory scheme that dictates how employees are paid in this county. You will not help guarantee workers a fair wage putting a band aid on a much bigger problem. The FLSA needs to be scrapped and rebuilt from scratch. Otherwise, you will leave in place in system that is confusing for employers to meet their compliance obligations, which, at the end of the day, is unfair for employers and employees.

WIRTW #311 (the “bossy” edition)

Earlier this week Facebook COO Sheryl Sandberg launched BanBossy.com. She believes that “bossy” is to aspiring female leaders as the n-word is to African-Americans. Sandberg argues that banning people from calling young women bossy will help give them the confidence to lead when they are older.

What a bunch of bunk. You know what will give young women the confidence to lead? Providing them opportunities to lead. How about we focus more on the percentage of female leaders at Fortune 500 companies (a paltry 16.9% of corporate board members, 14.6% of Executive Officer positions, and 4.6% of CEOs) instead of the words we choose to call those who might some day aspire to bridge that gap?

Words are just words. Banning them, no matter how offensive they might be, doesn’t change the underlying thoughts and the resulting behavior. Do you know what happens when you ban a word like “nigger?” People who are inclined to say it think it instead. Banning a word doesn’t end bigotry, it just takes it underground. Banning “bossy” won’t increase opportunities for women just like banning the N-word won’t end racism.

We should all agree that increasing opportunities for women in the workplace is a worthy goal. We are kidding ourselves, however, if we believe that banning a word will help achieve it.

For more critiques of Sandberg’s “Ban Bossy” campaign, see:

• Sheryl Sandberg Is Bossy. So What? — from CareerDiva
• Sheryl Sandberg wrong on “bossy” ban — from CNN
• Recline, don’t “Lean In” (Why I hate Sheryl Sandberg) — from The Washington Post’s She The People

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

Discrimination

• The dilemma of writing your own EEOC position statement — from HR Hero Line
• The EEOC and the FTC Publish Documents Related to Background Checks — from All in a Day’s Work
• EEOC and FTC Tips on Background Checks — from Phil Miles’s Lawffice Space
• Sex Workers Can Sue Their Bosses For Sexual Harassment: An Exchange — from Employment Discrimination Report
• Protecting the Unemployed — from The L•E•Jer
• Beard discrimination? Not really. — from Michigan Employment Law Connection
• Amazing Race Contestants File Employment Discrimination Lawsuit — from Atlanta Employment Lawyer Blog
• Is Sexual Harassment Against Contract Employees Legal? — from Donna Ballman’s Screw You Guys, I’m Going Home

Social Media & Workplace Technology

• On the 25th anniversary of the web, let’s keep it free and open — from The Official Google Blog
• Game On! Are You Ready To Have Fun At Work? — from Employment Essentials
• So, you want to adopt BYOD? — from TiPb
• Your Next Job Application Could Be Via Smartphone — from Mashable
• Should You Separate “Personal Life” on Your Enterprise Network? — from Blogging4Jobs
• EMPLOYEES: Keeping your settlement confidential is easy, so do it! — from Robin Shea’s Employment & Labor Insider

HR & Employee Relations

• Can I Be Funny at Work Without Ruining My Reputation? — from Lifehacker
• Can we ask applicants about their driving records? — from Business Management Daily
• 5 essential steps for vetting job candidates’ credentials — from MonsterThinking
• Additional Restrictions on Employer’s Use of Criminal History Checks — from The Labor and Employment Law Blog
• Creating a Loving Workplace — from Joe’s HR and Benefits Blog
• Why You Should Eliminate Your Paid Time Off Policies — from Fistful of Talent
• Workplace investigation alert: Don’t interrogate your employees — from Warren & Associates Blog
• New York Times Article on Employer Interrogations of Employees — from Wisconsin Employment & Labor Law Blog

Wage & Hour

• Obama Proposes Changes to White Collar Overtime Exemptions — from Dan Schwartz’s Connecticut Employment Law Blog
• Overtime Expansion Coming? — from Manpower Employment Blawg
• In-House Counsel: Review Your Company’s Security Check Process — from In House
• Telecommuting: Good for Morale, Bad for Legal Exposure — from Corporate Counsel
• Hi Ho Hi Ho, it’s Off to Work We Go. — from Michigan Employment Law
• The DOL, Law Students, and Internships — from Workplace Prof Blog
• FACT OR FICTION: An FMLA-eligible employee can decline FMLA leave — from Eric Meyer’s The Employer Handbook Blog
• 12-Month Period Under FMLA — from Workplace Insights

Labor Relations

• Union Faces NLRB Charge for Alleged Rape Threat — from LaborPains.org
• NLRB General Counsel Makes it Clear: He Has an Aggressive Agenda — from TLNT
• UAW’s Election Objections At VW Take An Interesting Turn — from Vorys on Labor
• Volkswagen v. Auto Workers Round 2 — from Labor Relations Institute

EEOC holds public meeting on social media in the workplace #socialEEOC

Yesterday, the EEOC held a public meeting on the use of social media in the workplace, and its impact on the enforcement of equal employment opportunity laws. The commission heard testimony that addressed issues such as recruitment and hiring, harassment, and discovery.

According to EEOC Chair Jacqueline A. Berrien, “The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns. This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Commissioner Victoria Lipnic added, “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.” Thus, the EEOC held the meeting to gather information, not to provide guidance.

Rather than summarize the hours of testimony (which you can read for yourselves here), I want to focus on the following question that the EEOC posed on Twitter (where else) during the meeting:

.#socialEEOC CH Berrien asks: Are these issues truly new or old #EEO issues with new technology? Comm. Lipnic begins opening remarks. #EEOC
— EEOC.gov (@EEOCNews) March 12, 2014

The answer is that these legal issues are not new; all that is new is the communication media impacting those legal issues. For example:

• Social media hasn’t changed the law of workplace harassment, but it has opened up new opportunities for employees to harass each other by permitting employees to stay connected to each other around the clock. Thus, employers must guard against and investigate off-duty harassment.
• Most employers know that they can’t ask a job applicant questions about their medical history, but they flock to Google and Facebook where they can learn that very same protected information.

The lesson here isn’t so much how social media is impacting EEO laws, but instead how employers are adapting their current policies and training to adapt to these new technologies. Does you harassment policy and training address the risks of social media? Do you train your recruiters on the right way to conduct an online background search? And do you understand the mechanics of Facebook, Twitter, Instagram, etc., so that you can ensure that all of your employees, from the top down, understand the technology. Without an understanding of the technology, your employees will be lost trying to understand the legal implications of its use.

How you answer questions like these will tell you if your organization is nimble and responsive enough to adapt to the impact these new issues are having on old laws. 

Don't Bieber your deposition

Three years ago, I wrote a post entitled, 10 tips for preparing for your deposition, in which I offered some ideas for how to best prepare to give a deposition in case in which you are a witness. The tips includes the common sense (tell the truth), to the more esoteric (beware leading questions).

Today, I’m updating that top-10 list with an 11th tip: Don’t be a Bieber. Earlier this week, TMZ leaked the video of the highlights (or lowlights, depending on your perspective) of the deposition Justin Bieber gave in a case in which a photographer claims Bieber ordered his bodyguard to attack him. This deposition might go down as the worst performance ever given under oath.


It is rare that you will win a case during your deposition. The person asking the questions is not your friend. The inquisitor is looking for opportunities to trip you up, put words in your mouth, and make you look bad. Yet, while you can’t win a case during your deposition, you certainly can lose it. You can make admissions that you don’t need to make, or you can come off looking like Bieber did in his video—like an a-hole.

The video is entertaining, but it’s also instructive. If you are being deposed, don’t play games. Don’t feign fake ignorance. Don’t get smart or act smarmy. Yes, it’s an unpleasant experience to be under oath. Don’t make it worse by giving a Bieber-like performance.

So, thank Biebs. You provided me the perfect instructional tool for me to show my witnesses before they are deposed, so they don’t act like you.

[Hat tip: Eric Meyer and Phil Miles]

EEOC issues new guidance on religious dress and grooming in the workplace

Law.com, one of the best websites for legal information, recently relaunched. Its relaunch features posts by well-known bloggers, including yours truly.

My first post at Law.com discusses the EEOC’s recently published Q&A on reasonable accommodation of religious dress and grooming in the workplace. Please click over to check out the revamped Law.com, and my first contribution.

Gender equality is dead; long live gender equality!

http://flic.kr/p/dLGTi8

I rarely write about active cases I’m handling. In fact, I can only think of one other time that I was mad enough to do so. Today marks time number two. Each involves a galling lack of professional courtesy.

I’m currently in the middle of a contentious piece of litigation in western Pennsylvania. The witnesses, however, are scattered all of the country, including two in Dallas, who I had to go to court to defeat a motion to compel their attendance in PA for their depositions. On Friday, I received a phone call from plaintiff’s counsel (who is in his mid to upper 70s), in which he told me he intended to take their depositions in Dallas this coming Wednesday and Thursday. I responded that even if they could be available on such short notice (they can’t be), I’m unavailable because my wife is traveling those two days for her job and one of us needs to be home with the kids.

His response floored me. He says, “You’re a lawyer. It’s unprofessional for you to plan your schedule around your wife. She should be at home taking care of the kids.”

We don’t live in an Ozzie & Harriet world anymore. Long gone are the days when a wife would be waiting at home to greet her husband with a pair of slipper and a martini while she put dinner on the table. Women work. My wife (who, by the way, gave up her career for 6 years to stay at home with our children) has restarted her career. Her job requires her to travel, which means we share a travel calendar. To make sure that our kids are never abandoned, we clear all travel with the other’s out-of-town schedule before making our own business arrangements.

Readers, please don’t carry this attitude into your business. There is only one unhappy ending to telling one of your employees that his wife, or she, belongs at home with the children. It starts with law- and ends with -suit. Women have the right to work, and neither they, nor their spouses, should be punished for exercising that right, regardless of their chosen profession.

As for which one of us in my tale was acting unprofessionally, I leave that decision up to you.

WIRTW #310 (the “suck it” edition)

Have you heard the one about the daughter who posted on her Facebook page about her dad’s age discrimination settlement with his old company? As it turns out, writing, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT,” violated the confidentiality language in Papa Snay’s settlement agreement, causing him to forfeit an $80,000 settlement payment. Oops.

The following blogs have more on this very interesting story:

• Daughter’s Facebook post costs dad $80k employment settlement — from Eric Meyer’s Employer Handbook Blog
• Facebook “SUCK IT” Costs Dad $80,000 — from Lowering the Bar
• Daughter’s Facebook Post Costs Dad his Settlement — from Phil Miles’s Lawffice Space
• Daughter’s Facebook post costs dad $80,000 — from Internet Cases
• Facebook and confidentiality agreements do not mix — from Michigan Employment Law Connection
• Daughter’s Facebook Post Sink’s Father’s Settlement — from All in a Day’s Work
• Daughter’s Facebook brag underscores the enforceability of confidentiality clauses in settlement and severance agreements — from Employer Law Report

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

Discrimination

• U.S. Civil Rights Commissioners Take EEOC to Task on Background Checks — from employeescreenIQ Blog
• The A, B, C’s of EEOC — from The Labor Dish
• A $26 million verdict reminds us that ageism is as illegal as the other “isms” — from Sindy Warren
• Employers Be Warned- Look at the Big Picture When Considering Harassment Allegations — from Currents: Hot Topics in Employment Law
• Employer’s quick action bars racial harassment claim — from EmployerLINC
• Employee Who Fails to Return from Vacation Has No Claim of Discriminatory Termination — from The Employment Brief
• Bullying Debate: “Do We Need To Wait For A Law?” — from Employment Discrimination Report
• EEOC: Employer Agrees to Improve Process of Designating Worker as Safety Threat Under ADA — from Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• Privacy is Going to be a Major Employee Concern for the Future — from Blogging4Jobs
• Social Media and Its Impact on the Workplace: What Every Employer Needs To Consider — from Trading Secrets
• The Problem With Corporate Webmail — from The Not-So-So Private Parts
• Before You Send That Scathing Email, Remember the Tale of the Job Bank House Mother — from Evil HR Lady, Suzanne Lucas
• Make BYOD Work: 9 Key Considerations — from InformationWeek

HR & Employee Relations

• Manage Your Work, Manage Your Life — from Harvard Business Review
• Who’s working at home, and is home the proper place? — from Technology for HR
• The Joys of Telecommuting, according to telecommuters — from Families and Work Institute Blog
• Six Rules for terminations: Firing Fast does not mean firing Stupidly! — from Mike Haberman’s Omega HR Solutions
• Becoming Employers of Choice — from SHRM Blog
• Should Background Checks Be On Your New Employee Checklist? — from HR Defense Blog
• Your Job Search and the Fair Credit Reporting Act (FCRA) — from hr bartender

Wage & Hour

• Employer’s Wage Issues with Students on J-1 Visas — from Wage & Hour - Development & Highlights
• Answers to AOL Jobs Reader Questions On Wages and Overtime — from Donna Ballman’s Screw You Guys, I’m Going Home
• FMLA Win for Employers – Employees Can Affirmatively Decline FMLA Leave & Thus FMLA Protections — from The Labor and Employment Law Blog
• Family and Medical Leave, Doctor’s Notes, and Employee Preferences — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Lawyers Look To Unionize At Bloomberg Law — from Above the Law
• UAW to NLRB: Tell Politicians to Stay Out of Our Elections — from Labor & Employment Law Perspectives
• NLRB’s Expedited Election Rule: “A Solution in Search of a Problem” — from TLNT

Read this post before you access your employee’s social media accounts

Susan Fredman Design Group employed Jill Maremont as its Director of Marketing, Public Relations, and E-Commerce. In that capacity, she used her own personal Twitter account and Facebook page to promote SFDG’s business. To keep track of the various social media campaigns she was conducting for SFDG, Maremont created an electronic spreadsheet, on SFDG’s computer and saved on SFDG’s server, in which she stored the passwords for her accounts. It appears that Maremont provided access to, or copies of, the spreadsheet to other SFDG employees to assist in her social media posts on behalf of the company.

Maremont suffered injuries in a serious car accident that kept her out of work. During that time, she claimed that SFDG employees, without her permission, accessed her Facebook and Twitter accounts and posted on her behalf.

In the ensuing lawsuit—Maremont v. Susan Fredman Design Group (N.D. Ill. 3/4/14)—Maremont alleged violations of the Lanham Act (that SFDG unlawfully passed itself off as Maremont), and the Stored Communications Act (that SFDG unlawfully accessed her electronic accounts without her permission). The district court dismissed the Lanham Act claim, but permitted the Stored Communications Act claim to proceed to trial.

Legal intricacies aside, the case is both instructive and troubling.

This case is instructive because it shows the danger when a company fails to brings its social media accounts in-house. Maremont used her personal Facebook and Twitter accounts for her employer. When she was out of the office for an extended period of time, instead of letting its social media presence falter, SFDG used Maremont’s account information to continue posting. How could SFDG have avoided these potential legal traps and an expensive lawsuit? Either by requiring that Maremont use its own social media accounts for official company business, or by having a written agreement with her that it had the right to access her mixed-use personal accounts. The former is cleaner and less risky, but the latter would have still likely kept it out of court, even if mixed-use accounts are harder to untangle at the end of employment.

This case is troubling because it sets the precedent that an employer to which an employee provides passwords to the employee’s social media accounts cannot access those accounts for business purposes. By all appearances, Maremont provided her account information and passwords to her coworkers. SFDG could not have foreseen that it would violate federal law by using them to continue Maremont’s work while she was incapacitated. Yet, that is exactly what happened.

What’s the main takeaway here? If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact.

[Hat tip: Internet Cases]

Following doctor’s orders helps employer win ADA case

Cynthia Horn worked for Knight Facilities Management as a janitor. Sometime in 2010, she developed a sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day. When that limitation failed to abate Horn’s symptoms, her doctor modified the restrictions to “no exposure to cleaning solutions.”

As a result, Knight Facilities fired Horn. It concluded that there was no work available to accommodate her restrictions, because the chemicals were airborne and merely working in the building resulted in exposure. Management spoke to Horn’s union rep, on Horn’s behalf, to try to find a solution before firing her, but none could be found. Notably, Knight Facilities refused to allow Horn to use a respirator, concluding that its use did not meet Horn’s restriction and, even if it did, it would cause an undue hardship because Knight Facilities would have to buy respirators for all of the other janitors.

In Horn v. Knight Facilities Management-GM, Inc. (2/25/14), the 6th Circuit affirmed the district court’s dismissal of Horn’s disability discrimination claim. In determining whether the employer could reasonable accommodate Horn’s disability, the court started, and ended, with the limitation imposed by Horn’s doctor—“no exposure to cleaning solutions.” Horn claimed that the company either should have: (1) eliminated restrooms on her cleaning route, or (2) provided her a respirator. The court disagreed:

We find that neither proposed accommodation is objectively reasonable because they both fail to comply with the physician-mandated restriction of “no exposure to cleaning solutions.” Eliminating the bathrooms on Horn’s route or assigning her to a new route without bathrooms are not reasonable accommodations because it is undisputed that Horn’s job still would have involved exposure to cleaning chemicals. Likewise, there is no evidence that working with a respirator would have complied….

Her restriction was “No exposure to Cleaning Solutions” and that would include using or touching cleaning solutions. And while Horn asserts that a respirator could have eliminated or significantly reduced her respiratory exposure, she provides no actual evidence to support this statement, much less evidence showing that a respirator would have prevented all exposure. Horn’s personal belief that she could handle cleaning solutions as long as she was wearing a respirator is irrelevant.

While the ADA requires that you engage a disabled employee in the interactive process, as Horn illustrates, the employee’s specific medical limitations can dictate the boundaries of that interactive process and the scope of the accommodations you have to consider offering. If you legitimately cannot make an accommodation that meets the employee’s limitations, then the employee is not “qualified” under the ADA, and therefore unprotected by that law.

When are preliminary and postliminary compensable? Supremes to let us know (maybe).

Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act.

“What does this mean,” you ask? In Busk, the plaintiffs claimed their employer illegally failed to compensate them for the time they spent passing through a required security check at the end of each shift. According to the plaintiffs, employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. They claimed that the checks were “necessary to the employer’s task of minimizing ‘shrinkage’ or loss of product from warehouse theft.”

The FLSA, as amended by the Portal-to-Portal Act, generally, precludes compensation for activities that are activities that are preliminary or postliminary to the employees’ principal activities. Preliminary and postliminary activities—those that are “integral and indispensable” to an employee’s principal activities—are compensable. To be “integral and indispensable,” an activity both must be (1) necessary to the principal work performed and (2) done for the benefit of the employer.

In Busk, the court concluded that the plaintiffs had sufficiently alleged that the security clearances were necessary to their primary work as warehouse employees and done for their employer’s benefit. Therefore, the district court erred in dismissing the wage-and-hour claim.

This  case is the second in as many years that the Supreme Court will hear on this issue. Earlier this year, in Sandifer v. U.S. Steel, the Court concluded that the time employees spent donning (putting on) and doffing (taking off) their protective gear was not compensable under their collective bargaining agreement.

There are lots of other examples of preliminary of postliminary activities that could be occurring in your workplaces besides putting on and taking off protective gear, or security screenings. For example, your employees might spend time logging on to their computers before their work days officially begin. Or they might spend time at the end of their shifts transitioning to the next shift. I am hopeful that Busk will provide employers needed guidance on the compensability of these activities. Stay tuned!

NLRB looks to expand reach with latest enforcement priorities

Late last month, the new NLRB General Counsel, Richard Griffin, published a memo (GC 14-01) outlining the matters that the Regions must submit to the NLRB’s Division of Advice for guidance on how to proceed. The memo is of key importance to employers, because it signals those matters that  will be an enforcement priority for the agency moving forward.

Of particular note, the memo lists the following two issues:

• Cases involving the applicability of Weingarten principles in non-unionized settings.

• Cases that involve the issue of whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard.

Why are these two issues important to employers? Because they show that the NLRB continues to look for ways to expand its reach beyond the traditional union/management setting. As I’ve been arguing for years, the NLRB is looking for ways to become relevant to the 93 percent of employees not covered by a collective bargaining agreement. The Board has cornered the market on social media cases, and is now expanding its reach to other issues—the rights of non-union employees to representation in disciplinary meetings, and email solicitation rules.

It is clear that it is going to be an interesting three years under the current iteration of the NLRB. Employers should expect movement on these two issues. Stay tuned.

WIRTW #309 (the “Hello, and welcome to Moviefone” edition)

Before there was Google or Fandango, there was Moviefone. Growing up, if we wanted to go to the movies, we didn’t have the luxury of iPhones or the Internet. But, we had 777-FILM, the ubiquitous (and free) telephone service that would tell us what movie was playing when and where. Now, of course, we have Fandango and iPhones, and, quite frankly, I’m surprised Moviefone’s telephone service lasted as long as it did. So, with a nostalgic tear, this week we bid adieu to Moviefone’s 25-year-old telephone service. At least we’ll always have Kramer:

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

Discrimination

• U.S. Commission On Civil Rights Blast EEOC’s Background Check Guidance As “Deeply Flawed” — from EEOC Year-End Countdown
• EEOC Charge Data and Chart FY2013 — from Phil Miles’s Lawffice Space
• The Ultimate Bait and Switch? Female Job Applicant Who Claims She Was Forced to Perform Sexual Favors as Part of “Application Process” has no Title VII Claim Because the Job she was “Applying for” Did Not Exist — from The Blue Ink
• EEOC Plucks Another Low Hanging Fruit – Hospital Settles With Fired Epileptic Doctor For $215,000 — from Employment Discrimination Report
• 7th Circuit Upholds Summary Judgment Finding No Adverse Employment Action When Employee Merely Anticipated Transfer That Never Materialized — from Wisconsin Employment & Labor Law Blog
• Mohawks in the workplace aren’t gay. Stupid, but not gay. — from Eric Meyer’s The Employer Handbook Blog
• How do you train you managers on harassment/discrimination? — from Warren & Associates Blog

Social Media & Workplace Technology

• How Can We Keep Our Law Firm’s Systems Safe in a BYOD World? — from Attorney at Work
• Clio survey reveals iPhone, iPad popularity among small law firms — from iPhone J.D.
• We now spend more time using smartphones than surfing the web on PCs — from Engadget Mobile
• Can A Facebook Status Update Violate A Non-Compete? — from InhouseBlog.com
• Got a “Secret”? Firewalls Are Not Stopping Spread Of Social Media  — from Dan Schwartz’s Connecticut Employment Law Blog
• Dammit, Jim! I’m an HR pro, not a social media guru! — from The Human Race Horses

HR & Employee Relations

• 5 reasons why you shouldn’t work too hard — from Washington Post’s She the People Blog
• 6 Tips to Help You Avoid Employee Lawsuits — from The Evil HR Lady, Suzanne Lucas
• Miami Dolphins’ culture sure didn’t help in Incognito situation — from Robin Shea’s Employment and Labor Insider
• Pass ‘em on: Two short videos about workplace bullying and the Healthy Workplace Bill — from Minding the Workplace
• New Trade Secrets Study by PwC and CREATEe.org — from Fair Competition Law
• Knocking Out A Trade Secret Claim—Your Own If You Are Not Careful — from Trade Secrets and Noncompete Blog
• Should Employees Get Dressed Down For Not Dressing Up? — from Workplace Diva
• Does “at-will employment” really mean what you think? — from HR Hero Line
• Will The Reason For My Termination Turn Up In A Background Check? — from Donna Ballman’s Screw You Guys, I’m Going Home

Wage & Hour

• Tales from the Business of Wage and Hour Litigation — from Walter Olson’s Overlawyered
• Employees Seek To Take Bite From Apple (and Urban Outfitters) — from Employment Class Action Blog
• Fifth Circuit Affirms FLSA Summary Judgment Based On “Complete Lack Of Evidence” Of Off-the-Clock Work — from Wage and Hour Law Update
• Don’t Play Fast and Loose with FMLA rights! — from Employer Law Report

Labor Relations

• Volkswagen Workers Vote Against UAW Representation; UAW Challenges Result — from Hunton Employment & Labor Law Perspectives™
• NLRB announces April 10 and 11 public meeting on proposed amendments to representation-case procedures​ — from Labor Relations Institute