Revisiting the misnamed and misunderstood term "wage theft"

Yesterday, on his always excellent Connecticut Employment Law Blog, Dan Schwartz wrote a post entitled, “Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means. Dan wrote:

[T]he use of the phrase is being pushed to push various agendas — not as a result of any legal theory or real change in the law.… And it’s time to call it out; it’s a phrase that is both misleading and loaded.… Does that mean that the problem of employers failing to pay employees overtime should be ignored? Hardly. Employers who fail to follow the the myriad of wage and hour laws should be held accountable. And suffice to say that criminal activity by employers should continue to be enforced vigorously.… Quite simply: The use of a criminal term for a non-criminal act needs to stop.

Dan is 100 percent correct that the term “wage theft” is being misused and abused. The mainstream press and bloggers are using the term to cover any situation in which an employer is not paying required overtime, whether it’s an intentional withholding or an honest mistake. “Theft” connotes bad intent — yet most wage and hour mistakes are honest ones born out of a misunderstanding of the law, not a desire to cheat or steal from employees.

Dan was kind enough to cite to a post I wrote on the same topic almost a year ago, entitled, Taking issue with the term “wage theft”. Because Dan has shed new light on this important issue, I thought it makes sense to republish my earlier post.

Lately, I’ve read a lot of blogs that accuse employers of committing rampant wage theft (e.g., here, here, and here). 

I have a huge problem with the term “wage theft.” It suggests anintentional taking of wages by an employer. Are there employees are who paid less than the wage to which the law entitles them? Absolutely. Is this underpayment the result of some greedy robber baron twirling his handlebar mustache with one hand while lining his pockets with the sweat, tears, and dollars of his worker with the other? Absolutely not. 

Yes, we have a wage-and-hour problem in this country. Wage-and-hour non-compliance, however, is a sin of omission, not a sin of commission. Employer aren’t intentionally stealing; they just don’t know any better. 

And who can blame them? The law that governs the payment of minimum wage and overtime in the country, the Fair Labor Standards Act, is 70 years old. It shows every bit of its age. Over time it’s been amended again and again, with regulation upon regulation piled on. What we are left with is an anachronistic maze of rules and regulations in which one would need a Ph.D. in FLSA (if such a thing existed) just to make sense of it all. Since most employers are experts in running their businesses, but not necessarily experts in the ins and outs of the intricacies of the Fair Labor Standards Act, they are fighting a compliance battle they cannot hope to win. 

As a result, sometimes employees are underpaid. The solution, however, is not creating wage theft statutes that punish employers for unintentional wrongs they cannot hope to correct. Instead, legislators should focus their time and resources to finding a modern solution to a twisted, illogical, and outdated piece of legislation. 

In my most recent book, The Employer Bill of Rights: A Manager’s Guide to Workplace Law, I summarized this issue best: 

“Congress enacted the FLSA during the great depression to combat the sweatshops that had taken over our manufacturing sector. In the 70 plus years that have passed, it has evolved via a complex web of regulations and interpretations into an anachronistic maze of rules with which even the best-intentioned employer cannot hope to comply. I would bet any employer in this country a free wage-and-hour audit that i could find an FLSA violation in its pay practices. A regulatory scheme that is impossible to meet does not make sense to keep alive…. 

“I am all in favor of employees receiving a full day’s pay for a full day’s work. What employers and employees need, though, is a streamlined and modernized system to ensure that workers are paid a fair wage.”

6th Circuit recognizes telecommuting as an ADA reasonable accommodation

In Core v. Champaign County Board of County Commissioners, the U.S. District Court for the Southern District of Ohio opined that telecommuting (i.e., work-from-home) might be an ADA reasonable accommodation under the right circumstances, but that case did not present those circumstances. The Core court specifically noted that the 6th Circuit does not “allow disabled workers to work at home, where their productivity inevitably would be greatly reduced,” except “in the unusual case where an employee can effectively perform all work-related duties at home.”

Yesterday, in EEOC v. Ford Motor Co., the 6th Circuit, for the first time, recognized that modern technology is making telecommuting a realistic reasonable accommodation option. The case involved an employee with Irritable Bowel Syndrome who could not drive to work or leave her desk without soiling herself. Ford declined her telecommuting request because it believed in its business judgment that her position—a buyer who acted as the intermediary between steel suppliers and stamping plants—required face-to-face interaction.

The 6th Circuit disagreed, in large part because Ford could not show that physical attendance at the place of employment was an essential function of her job.

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.…

[W]e are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.… We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” … [C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Like it or not, technology is changing our workplace by helping to evaporate walls. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes work-at-home arrangements more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider the following three-steps:

• Prepare job descriptions that detail the need for time spent in the office. Distinguish one’s physical presence in the office against one’s working hours.
• Document the cost of establishing and monitoring an effective telecommuting program.
• If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).

photo credit: Jeremy Levine Design via photopin cc

When an employee can’t return to work after an FMLA leave

The plaintiff in Demyanovich v. Cadon Plating & Coatings (6th Cir. Mar. 28, 2014) suffered from congestive heart failure. He returned from his latest FMLA leave in 2009 with a no-overtime medical restriction. The employer, however, ignored the restriction, kept assigning overtime hours, and denied an early-2010 FMLA request. Demyanovich’s doctor advised him to quit his job and apply for social security benefits. Shortly thereafter, the company terminated him for excessive absenteeism.

In the subsequent FMLA lawsuit, the employer claimed that Demyanovich could not prove him FMLA claim because he could not have returned to his job at the end of the 2010 FMLA leave, had it been granted. The court, however, disagreed:

Although there is ample evidence that Demyanovich might have had difficulty returning to work within twelve weeks of his February 23 request for FMLA leave, it is not indisputable that he would have been unable to do so. Dr. Mussani, Demyanovich’s primary physician, “advised [Demyanovich] to quit work” and seek Social Security benefits, but he did not draft any documentation stating that Demyanovich was categorically unable to continue working. We may not draw the inference, adverse to Demyanovich, that because Dr. Mussani had always cleared Demyanovich to return to work after past examinations, his advice to quit on this occasion demonstrates that Demyanovich was no longer capable of working.

According to the FMLA, employees who, at the end of the 12-week leave period, remain “unable to perform an essential function of the position because of a physical or mental condition … [have] no right to restoration to another position under the FMLA.” Thus, if Demyanovich truly could not have returned to work at the end of the FMLA leave, then he would not have a claim. In this case, the court concluded that the employer could not measure that inability prospectively, since Demyanovich presented no medical paperwork to that end.

What are the takeaway from this case?

1. When dealing with medical issues under the FMLA, get it in writing. In this case, it appears that the employer was attempting to justify its decision based on information in learned after the fact—that Demyanovich’s doctor recommend that he quit and seek social security benefits based on a total inability to work. Had the company learned this information at the time of the termination from medical information provided by Demyanovich at that time, this case likely would have turned out differently.
2. Don’t forget about the ADA. Just because an employee cannot return to work at the end of an exhausted FMLA leave does not mean you can always terminate the employee. Instead, you have an obligation under the ADA to explore, through the interactive process, reasonable accommodations such as temporary light duty or an unpaid leave of absence. Even if you are on solid legal ground to terminate under the FMLA, ignoring your obligations under the ADA will still buy you a lawsuit.

Would you rather hire a liar or a criminal?

According to a recent survey conducted by background-screening company EmployeeScreenIQ, resume lies are more of a deal breaker for employers than past crimes.

Of the 600 HR professionals surveyed 45 percent said that they routinely ding candidates with a criminal history on their resume, while a whopping 90 percent refuse to hire some for whom a resume lie is discovered.

Two years ago, when the EEOC announced its Enforcement Guidance on the Consideration of Arrest and Conviction Records, I expressed reservations over regulatory guidance that limited the ability of employers to use criminal histories as a disqualifying factor for certain classes of jobs. I still believe that individuals with certain criminal histories should not hold certain jobs. For example, I remain steadfast that I cannot foresee a situation where a company would ever hire a convicted murdered or sex offender a delivery person.

I would never hire anyone who lies during the hiring process. The most important trait in hiring anyone for a job is honesty. If the bond of honest breaks down between employer and employee, the breakdown of the employment relationship will quickly follow. While not all criminal convictions depict an individual as dishonest, all resume lies do. The fact that this survey shows that double the number of employers refuse to hire candidates with resumes lies versus those who truthfully reveal past crimes does not surprise me in the least.

Readers, what say you? Would you rather hire a liar or a criminal? What is more troubling to you: the applicant who lies on a resume, or an applicant who discloses a criminal history on resume? Sound off in the comments, or on Twitter @jonhyman with the hashtag #liarorcriminal.

WIRTW #317 (the “crash landing” edition)

Even though we are only in the third week of April, I am ready to declare that we have already seen the social-media #fail of 2014. From Fox News:

US Airways said it was investigating a pornographic tweet on Tuesday sent on its Twitter account in response to a customer complaint about a flight delay, which went viral on social media.

US Airways issued an apology on Monday immediately after deleting the tweeted photograph of a naked woman lying on a bed with a toy airplane between her legs, said Davien Anderson, spokesman for US Airways.

To be accurate, “between her legs” is a bit of an understatement.

Meanwhile, Jezebel reports, “It was an honest mistake. No one is getting fired.” Honest mistakes happen, both in the privacy of the workplace and in public on social media. The important lesson is how you handle it. Do you punish the employee? Or do you use the mistake as a teachable moment for all of your employees. In my experience, you get much more mileage from the latter.

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

Discrimination

• Seven Signs of Age Harassment — from Mike Haberman’s Omega HR Solutions
• The ADA may require companies to accommodate employee theft. Yep, stealing. — from Eric Meyer’s The Employer Handbook Blog
• Affirmative Action Plans: Does Your Company Need One? — from ERC Insights Blog
• The EEOC Loses Background Check Battle In The 6th Circuit — from Ohio HR Law
• Age Discrimination Cases Can be Easy to Prove — from The Blue Ink
• Are Pre-Employment Credit Checks Discriminatory? — from Atlanta Employment Lawyer Blog
• Employment Law IQ: Can a Church Employee be Fired for Having an Abortion? — from Southwest Florida HR Law & Solutions
• Is Stuttering A “Disability?” — from Employment Discrimination Report
• The ENDA Title VII As We Know It: Why House Republicans Should Pass The Employment Non-Discrimination Act — from Above the Law

Social Media & Workplace Technology

• Ten (+4 More) People to Follow on Twitter for Labor and Employment Law — from Dan Schwartz’s Connecticut Employment Law Blog
• Is It Time to Reconsider Your Personal Email Policy? — from Molly DiBianca’s Delaware Employment Law Blog
• Step Away From the Text Messages — from Evil HR Lady, Suzanne Lucas
• Do Email Bans Derail Workplace Flexibility? — from Families and Work Institute Blog
• Should you have the right to turn off your messaging — or your iPhone! — at the end of the workday? — from TiPb
• 8 Ways Not to Manage Your Email (and 5 and a Half Tactics that Work) — from Harvard Business Review
• Is Your Company’s Culture In Conflict With Social Media Trends? — from Fistful of Talent
• Employers and Social Media — from The D & O Diary

HR & Employee Relations

• Who needs HR? We all do. — from Robin Shea’s Employment and Labor Insider
• Finding the Right Chief Compliance Officer — from Corporate Counsel
• Survey Reveals Criminal Offenses That Concern Employers — from employeescreenIQ Blog
• Company Fights Suit by Worker Over ‘Potato Gun’ Explosion He Helped Set Off — from WSJ.com: Law Blog

Wage & Hour

• Unpaid internships are common, but are they legal? — from MonsterThinking
• Dollar Dollar bills y’all. Wage Payments under the FLSA. — from Michigan Employment Law
• Why Paternity Leave Is Important, Even Though You’ll Hate It — from Deadspin

Labor Relations

• Northwestern’s Appeal to NLRB on Football Union — from Phil Miles’s Lawffice Space
• The NLRB and social media — why you need to care — from Technology for HR
• Target Takes a Stand — from Labor Relations Institute

Why you need employee-invention and IP agreements

Taco Bell is defending claims by two former interns that they invented the Doritos taco nearly 20 years ago. They now want to be paid part of its billions dollars in sales. (ABC News)

The pair and their former employer will likely end up in court over who invented what, and when.

My question is whether Taco Bell required the interns to sign an “inventions” agreement. If they did, then even if the intern’s story is true, they will have little legal leg on which to stand.

A typical employee inventions agreement accomplishes the following:

• It defines that all rights to any inventions, innovations, developments, designs, etc., related to the employer’s business, and conceived, made, or developed by the employee while working for the employer, belongs to the employer and not the employee.

• It includes a promise that the employee will execute any documents necessary for the employer to perfect its ownership interest in any such inventions, etc.

• It provides the employee the opportunity to list, for exclusion, any patents held, or inventions, etc., conceived prior to employment, or for specific assignment to the employer for consideration paid.

These agreements are usually part of a larger confidentiality agreement, or non-competition agreement, but also can be standalone. The point is to avoid any dispute over who created what. If you provide employees the opportunity to list existing ideas and inventions, and to promise that anything they invent while working for you is yours, and not theirs, then nobody should go loco if one of their ideas hits it big, and the employer keeps it.

What happens when an HR investigation is staged … and filmed for a beer commercial?

This.

“Do you always wash your hands after using the restroom? … Have you ever told a coworker you like her outfit? … Do you use your work computer for non-work-related activities? … Have you been using your computer to watch basketball this March?”

I don’t recommend taking an HR investigation as a practical joke in your workplace, but this ad is pretty darn entertaining.

Hypothetical violations doom employer confidentiality policy

A few months ago I posted on the NLRB’s veto of a workplace confidentiality policy. Late last month, the 5th Circuit court of appeals ruled on another employer confidentiality policy, and the results should trouble employers everywhere.

At issue in Flex Frac Logistics v. NLRB was the following workplace confidentiality policy:

Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to … our financial information …; [and] personnel information and documents…. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any Silver Eagle Logistics LLC records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action.

The appellate court affirmed the NLRB’s decision that this policy infringed on the rights of employees to engage in protected concerted activity:

A “workplace rule that forb[ids] the discussion of confidential wage information between employees … patently violate[s] section 8(a)(1).” … As the NLRB noted, the list of confidential information encompasses “financial information, including costs[, which] necessarily includes wages and thereby reinforces the likely inference that the rule proscribes wage discussion with outsiders.” The confidentiality clause gives no indication that some personnel information, such as wages, is not included within its scope.

Particularly troubling is the NLRB’s summary rejection of the employer’s argument that the policy should survive because it had never interpreted or applied it to restrict employees’ Section 7 rights, such as the right to discuss wages. As the court noted, “the actual practice of employees is not determinative,” as long as one could reasonably interpret the policy as a restriction on Section 7 rights.

In other words, employers need to safeguard their policies against what-ifs and hypotheticals, a daunting task. In a passing notation, the court does note that Flex Frac’s policy failed, in part, because it did not expressly exclude “personnel information, such as wages.” Going forward, employers should consider including this carve-out in their confidentiality policies to help avoid NLRB scrutiny.

It's illegal to ask employees to give up overtime payments

If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland security company learned the hard way that employees cannot volunteer to work overtime at less than the required premium rate.

According to Cleveland.com, Citywide Protection Services has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. The comapny’s excuse for not paying overtime? The employees asked.

George Lewandowski, Citywide Protection Services’ president, said he was being characterized as a bad guy when all he had tried to do was help out his employees. Lewandowski said workers kept demanding overtime hours because they needed money.…

“I have a lot of employees who don’t make a lot of money, and they have a lot of kids, so they ask for a lot of extra hours,” he said. “I told them that I really can’t afford to pay all those extra hours, but a lot of them kept begging for hours, just begging for hours.

“I said: ‘I can’t pay the overtime. I’ll let you work at straight time,’” Lewandowski said. “They were aware that I could not pay the overtime—no matter what!”

It does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, you must pay them overtime. Period. No exceptions. Employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all. Otherwise, you might find yourself on the receiving end of a DOL investigation or collective lawsuit, neither of which is an option you want for your business.

WIRTW #316 (the “en francais” edition)

From Mashable:

Employers’ federations and two unions in France signed a “new, legally binding” labor agreement on Thursday that encourages some staff to turn off their phones after 6 p.m., in an effort to curb burnout and promote a healthy work-life balance.

According to the deal, the employees covered under the agreement are not supposed to tend to their work-related emails on their computers or smartphones after the 6 p.m. deadline. The onus lies on employers to ensure that their employees don’t feel the need to work after hours (or pressure them to do so).

The upside? No work emails after 6 pm. The downside? Hundreds of work emails to tend to first thing at 8 am. I think I’ll keep my after-hours email.

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

Discrimination

• Will “Microaggressions” Make Their Way Into Employment Discrimination Cases? Have They Already? — from Dan Schwartz’s Connecticut Employment Law Blog
• 8 reasons your sexual harassment investigation is better than the Clarence Thomas-Anita Hill investigation — from Robin Shea’s Employment and Labor Insider
• Playing golf and having sex are major life activities under the ADA — from Eric Meyer’s Employer Handbook Blog
• Tenth Circuit Denies Review in “Hijab Case” — from Laconic Law Blog
• Interactive process is crucial element of analysis in disability discrimination cases — from Employment Law Matters
• 8th Cir. axes $900K verdict because lawyer told personal law school sex-harassment story at closing — from ABA Journal Daily News
• Ten Best Tips To Stay One Step Ahead Of The EEOC — from Employment Discrimination Report

Social Media & Workplace Technology

• Which Messages Go Viral and Which Ones Don’t — from Harvard Business Review
• We Were Yelpless, Yelpless, Yelpless Yelpless — from The Sociable Lawyer Blog
• Possible porn: Can we search computers? — from Business Management Daily
• Closed vs. Open Social Network ─ What’s the Best Option for Your Company? — from Social Media Strategies Summit Blog

HR & Employee Relations

• Baseball and Work-Life Balance — from DOL’s Work in Progress
• Baseball Star Throws Fans a Work-Life Curveball — from Families and Work Institute Blog
• HBO’s “Silicon Valley” – I’m A Sucker For Shows That Dig Deep Into Work Cultures — from The HR Capitalist, Kris Dunn
• Liars Should Always Be Fired — from Fistful of Talent
• The CEO Must Also Be the Company’s CCO – Chief Culture Officer — from TLNT
• In Battle of Words, Former Netflix Exec Says That Company Defamed Him — from Suits by Suits
• If the NLRB allows employees to telecommute so can you! — from Mike Haberman’s Omega HR Solutions
• Sixth Circuit holds contract clause to arbitrate future claims does not apply to past claims — from Employer Law Report

Wage & Hour

• Why Should Employers Have To Pay Overtime To Employees Who Only Worked Overtime Because They Played Fantasty Football Or Shopped Online During Regular Hours? — from Wage & Hour Defense Blog
• Paid Family Leave: The Next Frontier for National Employers? — from Employment Law Watch
• Does My Employer Have To Pay Earned Sick And Vacation Time When I Leave? — from Donna Ballman’s Screw You Guys, I’m Going Home
• Coming Today: Obama “Equal Pay” Executive Orders — from Phil Miles’s Lawffice Space
• Are The McDonald’s Corporation and Franchise Owners “Joint Employers”? — from Overtime Lawyer Blog
• Employees Can’t Take FMLA Leave for “Potential” Absences in the Future  Jeff Nowak’s FMLA Insights

Labor Relations

• University challenges athlete unionization — from SCOTUSblog
• NFLPA Comes Out In Support Of College Players’ Union — from Deadspin
• Should you stand up to your employer? UPS fires 250 over protest — from Evil HR Lady, Suzanne Lucas
• Can Your Employees Form a Union? — from The Emplawyerologist
• Fifth Circuit Delivers Some Bad News For Employer Confidentiality Policies — from Hunton Employment & Labor Law Perspectives™

6th Circuit sends strong signal to EEOC in affirming dismissal of systemic lawsuit

Last January, a Cleveland federal-court judge dismissed a race discrimination lawsuit brought by the EEOC against Kaplan Higher Learning. In that case, the EEOC challenged Kaplan’s use of credit reports in its hiring process as having a systemic disparate impact based on race. To support its claim, the agency retained an expert witness to rate (i.e, guess) the unknown races of various job applicants based on how they appeared in DMV records. The district court excluded the expert, concluding that his “opinion” was nothing more than guesswork that resulted in inherently unreliable data. With no expert testimony to support its claim, the court dismissed the EEOC’s lawsuit.

Yesterday, in a terse opinion issued a mere 20 days after oral argument, the 6th Circuit affirmed the district court’s dismissal. Here is the entirety of the 6th Circuit’s legal analysis:

We need not belabor the issue further. The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

This case sends a strong signal to the EEOC that it cannot use junk science to further its agenda of eliminating systemic discrimination. What is so striking of the opinion is the brevity of the Court’s four-line analysis. That the 6th Circuit could make quick work of such an important issue speaks volumes of how little it thought of the EEOC’s litigation strategy.

Yet, the Kaplan case is less about whether credit histories disparately impact African Americans than it is about how the EEOC chose to prove its case. Kaplan did not win this case so much as the EEOC lost it by using junk science to support its claim. Employers should see this case for what it is — a stinging rebuke of the EEOC’s litigation tactics — and nothing more. Employers should not take this case as a license to deploy screening practices that might disparately impact applicants based on race, lest you end up the receiving end of the next EEOC lawsuit.

Has workplace drug testing gone to pot with legalized marijuana?

Late last year, I asked the following question: Can an employer fire an employee who tests positive for legally prescribed marijuana? It appears that employers are indeed struggling with this question. New Jersey transit is the latest employer to be sued as a result of an employee’s use of legal marijuana. NJ.com reports that an employee has sued the transit agency for disability discrimination after it suspended him and sent him into rehab because he is a registered patient with the state’s medical marijuana program.

This case is the latest challenge by an employee who suffered at work through the legal use of marijuana. So far, the employer has won each of these challenges on various legal grounds (see here, here, and here).

Medical marijuana is legal in 20 states plus the District of Columbia. Ohio is not one of these states. Nothing, however, would stop one of your Ohio employees from legally using while on vacation in Colorado, for example. Regardless, marijuana remains illegal under federal law. And, the ADA does not protect employees under the influence of illegal drugs. Thus, I remain confident that you can legally prohibit employees from being under the influence of marijuana while on the job, even if its legally prescribed. As for the lawful use of marijuana by employee outside of work, there is no clear rule of law, even if the cases so far seem to support an employer’s right to regulate. Until the courts sort these issues out, prudent employers should tread carefully and consult with their employment counsel before disciplining or firing any employees who are using legally prescribed marijuana away from work.

Differences of opinion show why we need ENDA

In response to last Tuesday’s post on an Ohio case refusing to protect “sexual orientation” under Ohio’s sex-discrimination laws, EEOC Commissioner (and Twitter friend) Chai Feldblum recommended that I check out a recent decision from the District of Columbia, Terveer v. Billington.

In that case, Peter Terveer, a Library of Congress employee, sued his supervisor for sex discrimination, alleging that the supervisor had created “a hostile environment” by subjecting him to a slew of anti-gay comments.

The employer argued for the dismissal of Terveer’s complaint, since Title VII does not include protections against sexual-orientation discrimination. The court disagreed, and permitted Terveer’s case to proceed under Title VII’s protections from sex discrimination and religious discrimination:

Under Title VII, allegations that an employer is discriminating against an employee based on the employee’s non-conformity with sex stereotypes are sufficient to establish a viable sex discrimination claim.… Plaintiff has alleged that Defendant denied him promotions and created a hostile work environment because of Plaintiff’s nonconformity with male sex stereotypes.… 

Title VII seeks to protect employees not only from discrimination on the basis of their religious beliefs, but also from forced religious conformity or adverse treatment because they do “not hold or follow [their] employer’s religious beliefs.” … [P]laintiffs state a claim of religious discrimination in situations where employers have fired or otherwise punished an employee because the employee’s personal activities or status—for example, divorcing or having an extramarital affair—failed to conform to the employer’s religious beliefs.… The Court sees no reason to create an exception to these cases for employees who are targeted for religious harassment due to their status as a homosexual individual.

This article at Slate.com argues that Terveer shows that anti-gay job discrimination is already illegal. To the contrary, the more prudent conclusion is that Terveer, when contrasted against Burns v. The Ohio St. Univ. College of Veterinary Medicine (the Ohio case I discussed last Tuesday), demonstrates that different courts can, and do, reach different conclusions on this issue. Instead of showing that anti-gay discrimination is already illegal, these cases illustrate the need to amend Title VII to make it absolutely clear that sexual-orientation discrimination is not only abhorrent, but is also illegal.

It’s okay to “gossip” in the workplace, as long it’s not “negative,” says the NLRB

Earlier this year, I noted that the NLRB is starting to examine workplace gossip policies. Last week, the NLRB reminded us of the importance of avoiding broad-based prohibitions on workplace communications.

In Hills & Dales General Hospital [pdf], the NLRB found unlawful (most of) each of the following three provisions of the employer’s “Values and Standards of Behavior Policy.”

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

The NLRB concluded that paragraphs 11’s and 21’s prohibitions on “negative comments” and “negativity” are illegal because an employee could reasonably construe those policies “to bar them from discussing with their coworkers com- plaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities.”

The NLRB also concluded that paragraph 16’s “requirement that employees ‘represent [the Respondent] in the community in a positive and professional manner’ is just as overbroad and ambiguous.” According to the Board, employees would reasonably view the language “as proscribing them from engaging in any public activity or making any public statements (i.e., ‘in the community’) that are not perceived as ‘positive,’” such as discouraging employees from “engaging in protected public protests of unfair labor practices, or from making statements to third parties protesting their terms and conditions of employment.”

There are two points of note from this opinion:

1. There was no allegation that the employer had disciplined or terminated any employee under any of the challenged rules. Nevertheless, the Board concluded that it could still find the work rules facially invalid. Thus, this case serves as a reminder that a policy could be illegal whether or not you act on it; merely having the policy is enough for the NLRB to take action.

2. The NLRB takes no issue with paragraph 21’s prohibition on “gossip.” Indeed, in the underlying ALJ decision, the judge noted that paragraph 21 “would arguably be on solid ground” if limited only to a prohibition on gossip. If workplace gossip is a toxic cause of discontent in your workplace, this case may serve as a signal that a narrowly drafted no-gossip policy may pass scrutiny by the NLRB, as long as you don’t include “negativity” in your prohibition.

WIRTW #314 (the “pale force” edition)

Meet my new best friend, the very funny Jim Gaffigan, pictured with my other best friend (my wife) and me:

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

Discrimination

• 3d Cir. Provides "Temporal Proximity" Retaliation Analysis — from Phil Miles’s Lawffice Space
• Fines To Increase For Failing To Post Notice Of Anti-Discrimination Rights — from HR Law Matters
• “Egregious” Same Sex Harassment Suit Settled By EEOC For Over $2 Million — from Employment Discrimination Report
• Boss seems to be seeking young “dream team”? Be alert for possible age discrimination — from Business Management Daily
• A post about David Crosby, alcohol, and the ADA — from Eric Meyer’s Employer Handbook Blog
• Message to Employers: Stick to your story — from EmployerLINC
• Depressed employee’s vacation leave request did not qualify for FMLA protection — from Employment Law Matters

Social Media & Workplace Technology

• Disgruntled employees mount uprising on Twitter — from Quentin Fottrell at WSJ’s MarketWatch (thanks for the quotes)
• The Founder of Reputation.com Answers Reader Questions — from You’re the Boss Blog
• Mobile content management and BYOD: the Dropbox catch-22 — from Information Age
• Management Monday: Quit Oversharing — from Delaware Employment Law Blog

HR & Employee Relations

• Enforce your dress code without making your employees hate you — from Robin Shea’s Employment and Labor Insider
• Bill Gates on the Future of Employment (It’s Not Pretty) — from Evil HR Lady, Suzanne Lucas
• Germany bans managers from calling or emailing staff after work hours — from InhouseBlog.com
• HR and the Art of Nudgery — from Mike Haberman’s Omega HR Solutions
• It’s Getting Foggy Out There: In The Haze of E-Cigarette Popularity and Regulation, What’s an Employer To Do? — from Employment Law Lookout
• 9 workplace policies your organization should have — from Ragan.com

Wage & Hour

• A tipping point for Baristas — from The Human Race Horses
• Independent Contractor Compliance: What Employers Need to Consider — from TLNT
• FLSA Revisions Won't be Quick or Easy — from Wage & Hour Insights

Labor Relations

• NLRB Finds that not all Whining and Complaining Protected by NLRA — from Pennsylvania Labor and Employment Blog
• Keeping policies legal: Don’t ban employees from talking about pay — from HR Hero Line
• How Would An NCAA Union Actually Work? A Guide For Perplexed Pundits — from Deadspin
• Northwestern NLRB Decision is a Nightmare for University GCs — from In House
• Employee Confidentiality Agreements – Time to review in light of the NLRB’s position being asserted in various cases — from Business, Employment and Real Estate Law in Ohio
• NLRB Charges Keebler Elves and Burritos Equal Big Bucks — from All in a Day’s Work
• Drafting Social Media Policies in 2014 — from Augmented Legality

If you don't want anti-bullying legislation, give me a “Hell Yeah!”

Bullying in the workplace isn’t illegal, unless it’s bullying because of some protected characteristic (sex, race, etc.). Yet, just because something is legal doesn’t mean it should be condoned.

According to Today’s General Counsel (citing the Workplace Bullying Institute’s 2014 US Workplace Bullying Survey [pdf]), an astounding 72% of employees report that their employers have not done anything to curb bullying in the workplace.

The quickest way to ensure that generalized workplace bullying becomes illegal is for employers to continue to ignore it. If employees continued to report that they are being bullied, and that their employers are not doing anything to stop it, legislatures will step in and pass anti-bullying laws.

So, what should you do? Treat bullying like it’s illegal. Create a workplace culture in which bullying is not permitted to occur.

• Include bullying in your anti-harassment or other workplace conduct policies.
• Train your employees about how you don't allow bullying, and what to do (i.e., how to report) incidents of bullying. 
• When an employee complains about bullying, don’t ignore it, investigate it. 
• After the investigation, implement corrective actions, commensurate with the severity of the conduct, to reasonably insure that it does not reoccur.

You might think it’s okay to ignore bullying in your workplace because there is no law against it, but legislatures won’t. They will fill the void with laws that you will not like (and, if the Workplace Bullying Institute’s survey is anywhere close to accurate, 72% is a big void). Do right by your employees. Do not give legislatures any reason to pass over-reaching laws that will hamper your ability to manage your employees.

Heed these words, which I wrote all the way back in 2011:

Businesses need to have the discretion to manage their workforces. Anti-bullying laws will eviscerate that discretion. Just because generalized bullying is not illegal does not mean that employers lack incentive to act preventively and responsively. To the contrary, the marketplace creates the incentive to treat employees well. Bad bosses beget revolving-door workforces, doomed to failure. Good bosses create loyalty and retain good employees, which breeds success. Imposing liability merely for being subjected to a bad boss sets a dangerous precedent that will eliminate the “at will” from all employment relationships.

Or, to put it in simpler terms, do the right thing, or the government will eventually make you.

Social-cultural discrimination does not equal race discrimination

Does a policy that prohibits employees from wearing dreadlocks discriminate against African-Americans? According to one federal court, in EEOC v. Catastrophe Management Solutions [pdf], the answer is no.

CMS maintained the following policy, which it interpreted to prohibit employees from wearing dreadlocks:

All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines … hairstyles should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

The EEOC claimed race discrimination following CMS’s rescission of a job offer after a job applicant refused to cut her dreadlocks. The court, however, disagreed, dismissing the EEOC’s lawsuit. The court made a key distinction between immutable, protected characteristics (such as race) and mutable, unprotected characteristics (such as hairstyle):

It has long been settled that employers’ grooming policies are outside the purview of Title VII…. The EEOC asserts that the policy itself was discriminatory because it was interpreted to prohibit dreadlocks, which is a hairstyle. Title VII prohibits discrimination on the basis of immutable characteristics, such as race, sex, color, or national origin. A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic….

The court also refused to take the EEOC’s bait to equate culture to race:

According to the EEOC, the definition of race should encompass both physical and cultural characteristics, even when those cultural characteristics are not unique to a particular group. But as the defendant points out, to define race by non-unique cultural characteristics could lead to absurd results. For instance, a policy prohibiting dreadlocks would not apply to African Americans but would apply to whites. Moreover, culture and race are two distinct concepts….

Title VII does not protect against discrimination based on traits, even a trait that has a socio-cultural racial significance.

I’ve discussed dreadlock discrimination before, but in the context of religious discrimination. In this context, the court got this case 100% correct. Dreadlocks are not a “black” thing. Heck, if you saw any of the photos of 2011’s Occupy Wall Street movement, I can guarantee that you saw lots of photos of white folks with dreadlocks. Nevertheless, this case serves a good reminder that grooming policies remain high on the EEOC’s radar, even if they raise much more of an issue for national origin and religion than race.

Sexual-orientation discrimination ban to become law

My apologies if the headline baited you in, but today is April Fools’ Day, and, no, neither Congress nor Ohio’s legislature is close to amending any workplace discrimination laws to include sexual orientation as a protected class.

But, they very much need to.

I read with great interest a series of opinion pieces in last week’s New York Times, entitled, If Gays Can Marry and Be Fired for Doing So. Among the authors was EEOC Commissioner (and Twitter friend) Chai Feldblum, who argued that marriage equality laws demonstrate that Title VII already protects sexual-orientation discrimination as sex discrimination. On Twitter, I asked Chai if, in light of her op-ed, she believes that we do not need to amend Title VII expressly to include sexual orientation. Her response?

We still need (a strong) ENDA for clarity & certainty. MT @jonhyman: Does this mean you don’t think we need ENDA? http://t.co/HgtvN2ksk3
— Chai Feldblum (@chaifeldblum) March 25, 2014

If you need any greater reminder of the need for the Employment Nondiscrimination Act (ENDA), which would amend Title VII to include sexual orientation and gender identity, look no further than Burns v. The Ohio St. Univ. College of Veterinary Medicine, decided last week by an Ohio appellate court. That case dismissed a claim by a lesbian veterinary resident because Ohio’s workplace discrimination laws do not cover “sexual orientation.”

Each appellate district in this state that has considered such a claim has concluded that the term “sex” in R.C. 4112.02(A) does not include sexual orientation.… Likewise, courts analyzing the analogous provision of Title VII have held that, for purposes of that law, “sex” does not include sexual orientation.…

In this appeal, appellant unabashedly argues for a change in the law. However, this claim and this court are not the forum for achieving the change that appellant seeks.… Legislative measures proposing to amend R.C. Chapter 4112 and Title VII to add the term “sexual orientation” have been, as yet, unsuccessful.… Under our system of separation of powers, this court’s role is limited to interpreting and applying R.C. Chapter 4112 as it currently exists.

Readers, now is the time to end sexual orientation and gender identity in the workplace. It is foolish that we, as a supposedly enlightened society, cannot decide that it’s not okay to discriminate. Let’s end this foolish practice, and send a signal to all of our citizens that we truly are the land of the free and the home of the brave.

What Ben Franklin teaches us about employment law (the #SCOTUS edition)

Some people head to the beach for Spring Break. I head to Philadelphia. An extended school break for my kids provides a good opportunity to visit my family. Plus, we have had a German daughter in our house since August (a 10th grade exchange student), and we promised her that we’d show her some good old fashioned American history.

In walking around Old City, is becomes very apparent that Philly is Ben Franklin’s city.

Among Franklin’s pithy quotes, his most memorable might be, “In this world nothing can be said to be certain, except death and taxes.”

Last week, the U.S. Supreme Court reminded us of this fact in United States v. Quality Stores [pdf]. The issue in the case was whether severance payments made by an employer to an employee are “wages” for purposes of FICA’s payroll tax. The Court unanimously ruled that severance payments are “wages” subject to FICA, reversing the 6th Circuit. IF you are looking for a more detailed analysis of the Court’s reasoning, head over to SCOTUSblog.

This decision seems to be common sense. If, however, you had previously been following the reversed ruling of the 6th Circuit, you need to change your practices and start withholding FICA’s payroll taxes from the severance payments you make to employees. There are lots of radars on which you, as an employer, do not want to appear. As certain as Mr. Franklin was about death and taxes, I am certain that the IRS’s radar tops that list.

WIRTW #313 (the “March madness” edition)

Yesterday, I shared my thoughts on the NLRB’s historic (yet preliminary) ruling on scholarship student athletes as employees. I argued that treating these students as employees could require their employer (the university) to pay them overtime. What other unintended results could this ruling have?

• As one of my Twitter friends asked, will these students have to pay income tax on the value of their scholarships?
• Will injured athletes be entitled to FMLA leave?
• What about reasonable accommodations for injured athletes under the ADA?
• Or what about health insurance coverage under the ACA’s mandate?
• Will recruiting practices be scrutinized for disparate impact?

As you can see, this case asks more questions than it provides answers. The only answer I do know is that the NLRB kicked a hornet’s nest, and it is going to take years for the swarm to settle itself.

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

Discrimination

• Spiderweb Delivery? Is One Year Enough for a Leave of Absence for a Disabled Employee? — from Dan Schwartz’s Connecticut Employment Law Blog
• Accommodations For Pregnant Employees: When Laboring Means More Than Just Hard Work — from Employment Essentials
• Prompt remedial action beats harassment claim — from Warren & Associates Blog
• Should Stuttering Be Classified As A Disability? — from Employment Discrimination Report
• Obesity is a Disability? — from The Blue Ink
• Supreme Court Hears ACA Contraceptive Mandate Cases — from The Employment Brief

Social Media & Workplace Technology

• Facebook reports 1 billion active users on mobile devices and 200 million users on Instagram — from The Verge
• Employer Access to Employee Social Media: Applicant Screening, ‘Friend’ Requests and Workplace Investigations — from Socially Aware Blog
• Plaintiff-employee destroys Facebook posts about her case; court destroys her — from Eric Meyer’s The Employer Handbook Blog
• Think before you delete that Facebook post — from Evil HR Lady
• Social Privacy: Workplace Myth Or Reality? — from TalentCulture
• 5 Employment Law Considerations in “The Cloud” — from Technology Company Counselor

HR & Employee Relations

• Why Likability Matters More at Work — from the Wall Street Journal
• 10 Easy Rules for Background Checks in Hiring — from Robin Shea’s Employment & Labor Insider
• Why you should document when the decision was made! — from Mike Haberman’s Omega HR Solutions
• Can I Just Quit and Claim Constructive Discharge? — from Phil Miles’s Lawffice Space
• Trends in Parental Leave: Looking Abroad, Looking Ahead — from ERC Insights Blog
• Do You Have Employment Practices Liability Insurance? — from The Emplawyerologist

Wage & Hour

• McDonald’s Employees: Not Lovin’ It — from The L•E•Jer
• How Will Expansion of Overtime Eligibility Impact Small Business? — from GMS Blog
• Employees Can’t Take FMLA Leave for “Potential” Absences in the Future — from Jeff Nowak’s FMLA Insights
• Make sure employee is clear about your system for running and counting FMLA leave — from Business Management Daily

Labor Relations

• If you are a CHRO – this should be keeping you (and your people) awake at night — from The Human Race Horses
• Lessons from the NLRB’s Social Media Decisions for BYOD Policies — from Blogging4Jobs
• NLRB Expands Scope of Employer Solicitation of Grievances as Unlawful Coercive Conduct — from Management Memo