President signs Executive Order banning LGBT discrimination by the federal contractors and government

Yesterday, President Obama amended two prior Executive Orders, adding new protections against sexual orientation and gender identity discrimination. Executive Order 11246, which extends anti-discrimination obligations to federal contractors, now also includes prohibitions against sexual orientation and gender identity discrimination. Executive Order 11478, which already banned sexual orientation discrimination by the federal government, now also includes a prohibition against gender identity discrimination. The provisions affecting federal employees takes effect immediately. Those impacting federal contractors will take effect within 90 days, after the Secretary of Labor implements regulations.

Currently, only 18 states prohibit employment discrimination based on sexual orientation and gender identity. Ohio is not one of them. These amendments will extend these protections to 28 million federal employees and employees of federal contractors. Thus, if you are an Ohio company with federal contracts, this prohibition will apply to you.

It is time for employers to stop invidious discrimination against LGBT employees. According to the White House, 91% of Fortune 500 already prohibit discrimination based on sexual orientation, and 61% already prohibit discrimination based on gender identity. Yet, according to President Obama, “In too many states and in too many workplaces, simply being gay, lesbian, bisexual or transgender can still be a fireable offense.… I firmly believe that it’s time to address this injustice for every American.” 

I agree. It’s incomprehensible and unjustifiable for an employer to discrimination on the basis of sexual orientation and gender identity. It’s antithetical to what this country stands for — government of the people, by the people, for the people, and justice for all (no matter with whom they happen to go to bed at night). Eventually, Congress will act, pass ENDA, and make LGBT discrimination a thing of the past. Until then, do right by your employees. Enact policies prohibiting this type of discrimination in your workplace. Send a message that you are an employer of inclusion, and not exclusion. 

When your plaintiff is a prostitute

Let’s say an employee sues your company for sexual harassment. And let’s say the allegations are bad—that the supervisor told the plaintiff he could save her job if she “f***ed” him, after which the supervisor raped her. Like I said, BAD. As an employer, you don’t have a lot of options, other than to hope you have insurance and to know that someone likely is going to write a big check.

Then, you receive a gift—knowledge that the employee might hold a side job as a prostitute. That information doesn’t excuse or defend the supervisor’s actions (which are beyond deplorable), but they do provide an opportunity to lessen the sting of the plaintiff’s damage claim.

Armed with this knowledge, you serve discovery seeking the nature and extent of the plaintiff’s activity as a prostitute/escort. Does the court allow you to take this discovery?

Here’s how one Ohio federal court recently ruled, in Hulec v. JH Bennett & Co.

Plaintiff Hulec requests lost wages and damages for emotional distress. Evidence about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages Plaintiff is entitled to should she win this case. … 

The Court allows limited discovery, through a reopened deposition or interrogatories, into these matters: (1) the general nature of the escort services Plaintiff has offered or performed in the past five years; (2) the frequency with which she has performed those services; (3) her income from those services; and (4) any medical or psychological treatment she received related either to her sexual assault or to other sexual encounters.

In cases like Hulec, victory is differently measured. In this case, a settlement that will not throw the employer into bankruptcy is a win. It is important to do everything you can to lessen the potential pool of damages available to the plaintiff. In this case, that mitigation came in the form of the plaintiff’s other “work.” Don’t give up hope, even in the fact of difficult cases. You pay us a lot of money to defend you. Let us earn that money with our creativity. As long as you are willing to keep an open mind to what it means to “win” a case, we might surprise you.

Should you limit bathroom breaks for employees?

Teamsters local 743 has filed a complaint with the National Labor Relations Board claiming that an Illinois faucet manufacture unfairly disciplined 19 workers for “excessive use” of washrooms. What’s excessive, according to the company? Sixty minutes over the last 10 days, or a mere six minutes per day. 

The company reports that it had to limit bathroom use because employees were spending too much potty time outside their scheduled breaks. According to CNN, the company claims employees lost 120 hours of lost production per month as a result. The Daily Mail reports that the company supposes that employees are spending the time texting instead of taking care of bathroom business. According to the employees’ union rep:

The company has spreadsheets on every union employee on how long they were in the bathroom. There have been meetings with workers and human resources where the workers had to explain what they were doing in the bathroom.

Take note that this issue was brought to a head by a labor union. Do you know how to keep your workplace union-free? 

DON’T IMPLEMENT RULES LIMITING BATHROOM TIME. 

Employees don’t organize over issues like wage or benefits. They organize because they don’t feel like they have a voice with management. Maintain channels of communication. Have an open door through which employees can pass to discuss concerns and air grievances. And, for Pete’s sake, don’t implement Orwellian work rules. What are you supposed to do if an employee is spending too much time in the bathroom texting? Discipline that employee for slacking off. Trust me, your other employees will get the message without you having to limit all of their toilet time to six minutes per day. 

For more on workplace bathroom breaks, including how to implement reasonable bathroom rules in your workplace, read When you gotta go, you gotta go: The right to workplace bathroom breaks.

Employment Law Blog Carnival: The Child of the 90s Edition #ELBC

I’ve been thinking a lot lately about the 1990s. Maybe it’s the fact that they were my formative years in college and law school. Maybe it’s the three-night series I just watched on National Geographic Channel. Maybe it’s the rebirth (and re-cancellation) of Arsenio Hall. Maybe it’s how my daughter is learning Nirvana, Pearl Jam, and the Chili Peppers for her next gig. Or, Maybe it’s just because I’ve been listening to a bit too much Lithium on my satellite radio trying to recapture my youth. Whatever the case, I’m dedicating this, my annual turn at the wheel of the Employment Law Blog Carnival, to the 90s.

So put on your flannel shirts (or blue dresses), bust out your Bill-Clinton sax, and enjoy this grungy Child of the 90s edition of the Employment Law Blog Carnival, as I present the best of the Employment Law Blawgosphere as seen through the lens of ten of the best songs to come out of The Last Great Decade.


Four Leaf Clover — Old 97’s (1997, as covered in 2014)


The Old 97’s recorded this song twice, a countrified version on their debut album, Hitchhike to Rhome, and this rock version for their 1997 breakthrough album, Too Far to Care, which Rhett Miller turned into a duet with Exene Cervenka, singer from the punk band X. Do you feel lucky? Read these 4 Steps to Combat Workplace Discrimination, from Ari Rosenstein’s Small Biz HR Blog, and you might.


Daughter — Pearl Jam (1993)


Eddie Vedder can be a bit hard to understand when he sings. Did you know that this song is about a girl with a learning disability, abused by her family and friends because they did not understand what was wrong with her? Perhaps they needed a lesson in accommodation. Next term, the Supreme Court is going to provide us one on pregnancy discrimination, as Phil Miles reports on his Lawffice Space blog, in SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case.


About a Girl — Nirvana (1994)


Nirvana originally recorded About a Girl in 1988, but it did not become a hit until Nirvana’s MTV Unplugged performance years later. The Beatles inspired Kurt Cobain to write the song. The Supreme Court’s Hobby Lobby decision was about a girl who could not buy certain birth control under her employer’s medical insurance, as Heather Bussing, at HR Examiner, explains in What the Hobby Lobby Case Means.


Weezer — Undone, The Sweater Song (1994)


According to Rivers Cuomo, this song is about that feeling you get when the train stops and the little guy comes knocking at your door. That explanation is as cryptic as the song. Perhaps a better explanation is found in Why employee use of social media “off the clock” may still impact your workplace, from Eric Meyer’s The Employer Handbook Blog. Maybe it’s the same feeling you get if you don’t education yourself about your employee’s off-the-clock social media use.


Hunger Strike — Temple of the Dog (1992)


Temple of the Dog is an amalgam between Soundgarden and Pearl Jam. Did you know that Eddie Vedder, who had flown to Seattle from San Diego to audition for Mookie Blaylock (which would later become Pearl Jam), and was only supposed to sign back-up on Hunger Strike? Chris Cornell, however, so much liked how Vedder sang the song, it ended up as a duet. And, the rest is grunge history. Do you smoke pot (legally, of course)? Then, there’s no hunger strike for you, given your propensity to the munchies. Can you fire someone who smokes pot (legally, of course)? Read Florida Legalizes Medical “Marijuana” But You Can Still Be Fired For It, from Donna Ballman’s Screw You Guy’s, I’m Going Home, to find out.


Bullet with Butterfly Wings — Smashing Pumpkins (1995)


Vampires and rats in cages? Believe it, or not. Here’s Employment law BELIEVE IT OR NOT! from Robin Shea’s Employment & Labor Insider.


Interstate Love Song — Stone Temple Pilots (1994)


According to Scott Weiland, this song is about honesty, lack of honesty, and his then-newfound love for heroin. Pretty bleak stuff, if you ask me. Do you know what else is bleak? Not correctly paying your employees, as explained in Holiday Pay for Employees with Alternative Work Schedules from Wage & Hour Insights.


Sabotage — Beastie Boys (1994)


For my money, this is the greatest music video of all time. This, along with Weezer’s Happy Days-inspired Buddy Holly, made a name for Spike Jonze, who went on to direct the Oscar-nominated films Being John Malkovich and Her. For the past six years, federal agencies have been trying to sabotage employers, according to Is the EEOC the new NLRB?, from John Holmquist’s Michigan Employment Law Connection.


Green Day — Basket Case (1994)


“Do you have the time / To listen to me whine?” Trying to figure out the hows and whens of inflexible leave of absence policies will turn you into a basked case. Just ask Dan Schwartz, who, on his Connecticut Employment Law Blog, posted Wait, “Inflexible” Leave Policies Are Actually Okay? Sometimes.


Give It Away — Red Hot Chili Peppers (1991)


This song is all about the philosophy of selflessness and altruism. Employers seldom adopt this philosophy when settling lawsuits. When settling lawsuits with employees age 40 or over, don’t forget about the OWBPA, as explained in Settlement and the Older Workers Benefit Protection Act, from Robert Fitzpatrick on Employment Law.

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Eric Meyer, the author of The Employer Handbook blog and currator of this fine Carnival, will host next month’s Employment Law Blog Carnival, on August 20. If you want to participate, email him a link to your employment-law-related blog post by August 15.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with edition #329.

EEOC issues Enforcement Guidance, Q&A, and Fact Sheet on Pregnancy Discrimination

If had any doubt that pregnancy discrimination is a hot-button issue at the EEOC, look no further than yesterday’s publication of three documents by the Agency on the issue:

• Enforcement Guidance: Pregnancy Discrimination and Related Issues
• Questions and Answers about the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues
• Fact Sheet for Small Businesses: Pregnancy Discrimination

Among the topics addressed by the EEOC are:

1. The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy, a woman’s potential to become pregnant, fertility/infertility, and the intent to become pregnant.
2. Lactation as a covered pregnancy-related medical condition, which means that denying lactation time or space to new moms violates Title VII.
3. The circumstances under which employers may have to provide light duty for pregnant workers, and the requirement that an employer provide the same accommodations to pregnant workers as to other workers with similarly disabling medical conditions.
4. Issues related to leave for pregnancy and for medical conditions related to pregnancy, and the requirement that pregnant employees who are able to perform the essential functions of their jobs must be permitted to do so.
5. The PDA’s prohibition against requiring pregnant workers who are able to do their jobs to take leave.
6. The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms.
7. When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary. These pregnancy-related impairments, which the ADA covers as disabilities, include gestational diabetes, pregnancy-related sciatica, and preeclampsia. Potential reasonable accommodations include redistributing marginal or nonessential functions, modifying workplace policies or work schedules, telework where feasible, leave in excess of a medical leave policy, purchasing or modifying equipment, or temporarily reassigning an employee to a light duty position.

All three documents are required reading for any employers with female employees of child-bearing age. Moreover, while the EEOC’s Enforcement Guidance is not a statement of law, but, instead, a federal agency’s non-binding interpretation of what the law means, employers should take these interpretations seriously. Courts do look to the EEOC for help in interpreting Title VII, and employer who ignore this Guidance or act contrary to it are taking a huge risk in doing so.

Should you block social media at work?

One of my summer television addictions is NY Med, which follows surgeons around some of the New York metro area’s busiest hospitals. One this summer’s episodes focused on a man who had been hit by a subway train. An ER nurse Instagrammed a photo of the empty trauma room, along with the caption “#Man vs 6 train”. Later that day, the hospital fired her. According to ABC News, she was fired for being “insensitive,” not for posting any protected patient information or for violating any hospital policy.

I thought of this story as, over the weekend, I read an article on The Next Web entitled, Productivity vs. Distraction: Should you block social media at work? The answer to this question is a resounding “no.” Here’s why, in my opinion.

Like it or not, we live in a social world. People are living their lives on Facebook, Twitter, and Instagram. Take Facebook. It has 1.28 billion users, 59% of whom visit the site every day. 68% of all time spent on Facebook is done via its mobile app. Twitter is even higher, at 86%. These stats show that it you are trying to ban employee social media access at work, you are fighting a battle you cannot win. If an employee wants to check Facebook at work, or post a Tweet, or show off that fancy filtered sunset on Instagram, they will simply take their iPhone out of their pocket and post away.

So what is a company to do? Embrace the fact that employees will access their social media accounts from work. So, how do you balance on-the-job productivity against the social media’s distractions? TNW offers four great tips:

1. Draft a policy. I was troubled when I read that the nurse on NY Med had not violated any policy by posting on Instagram a photo of the inside of a trauma room. Given the vast number of your employees who are on social media, it is irresponsible not to have a social media policy. Just make sure it will pass muster with the draconian agenda being put forth by the NLRB.
2. Invest in the idea that employees represent your company. Jason Seiden, the co-founder and CEO of Ajax Social Media, calls it profersonal: the inherent intertwining of our personal and professional personas online. You can read more on my thoughts on this important issue here. Suffice it to say, however, that employees need to realize that anything they say online can impact their professional persona, and that it is our job as employers to help educate our employees about living in a “profersonal” world.
3. Training, training, training. Teaching employees about the meaning of “profersonalism” is just one part of the training puzzle. The best way to limit employee social media problems is to invest some time and money into training your employees about these issues. Having a policy is step one in this process, but training your employees on what that policy means is steps two through ten (at least).
4. Allow for brain breaks. We ask an awful lot of our employees. It’s rare to find a nine-to-five job these days. If your employees are working 45, 50, or 50-plus hours per week, what’s the harm if they spend a few minutes during the day checking Facebook. Workplace social media is not a technology problem, it’s a performance problem. Thus, technological solutions will not work. You need to treat social media abuse as a performance problem. If an employee is spending so much time on Facebook that he or she cannot complete the job, then provide counseling or discipline. If an employee posts something that harms the business, counsel, discipline, or fire. Treating the problem by shutting off the technology will not cure the problem; it will just take if off your network. 

Facebook might not be Facebook in five years. But, rest assured, something else will take its place. Social media is not going anywhere. Employers need to embrace this reality, or face a workforce they do not understand and cannot hope to control.

WIRTW #328 (the “fore!” edition)

It was a lovely day for golf yesterday at the annual KJK golf outing. If only my swing agreed.

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On Wednesday, I’m hosting the July edition of the Employment Law Blog Carnival. Please send my way any post you’d like featured.

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

Discrimination

• Podcast: “Discrimination Law in an Overlawyered America” — from Walter Olson’s Overlawyered
• Pay Careful Attention to Pregnancy Accommodation Requests as EEOC Plans New Enforcement Guidance — from Employment Matters Blog
• Brave Men Take Paternity Leave — from Harvard Business Review
• SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case — from Phil Miles’s Lawffice Space
• Walmart on Hook for $180K in EEOC Suit Alleging ADA Violation From Firing of Diabetic Employee — from Joe’s HR and Benefits Blog
• Your Religion Shouldn’t Be on Your Résumé (Unless You’re Jewish) — from Evil HR Lady, Suzanne Lucas
• Are 9 Sexual Harassment Cases And A Naked Dancing Video Cause For Firing? Maybe Not — from Donna Ballman’s Screw You Guys, I’m Going Home
• Age Discrimination in the Tech Industry — from Workplace Prof Blog

Social Media & Workplace Technology

• Six degrees of Kevin Bacon, err, social media and the workplace — from Eric Meyer’s The Employer Handbook Blog
• The Cost of Continuously Checking Email — from Harvard Business Review
• Can Employers Discipline Employees Who Post False Claims Of Harassment On Facebook? Yes, But Beware Of The Pitfalls — from Employment Law Lookout
• Court holds employers not liable for employee defamatory online speech made using employer computers. Plaintiffs can’t take the money and run! — from Employer Law Report
• Employees’ social media use: a refresher — from Technology for HR

HR & Employee Relations

• Adventures in employment agreements — from Walter Olson’s Overlawyered
• Employers Should Dot Their I’s and Cross Their T’s When Using Consumer Reporting Information — from Texas Employment Law Update
• Naked and Afraid HR — from The Tim Sackett Project
• Can neuroscience give us an accurate lie detector for employment disputes? — from Minding the Workplace
• The Moral of Workplace Morale — from Next Blog
• Do’s and Don’ts of Accepting Offers of Employment - NBA DRAFT VERSION — from The HR Capitalist, Kris Dunn

Wage & Hour

• DOL audits: What to expect when you’re expecting one — from Business Management Daily
• Wage and Hour Lawsuits More Prevalent in 2014 — from Overtime Lawyer Blog
• Why “Working Time” FLSA Lawsuit Settlement Irritates Me — from Wage & Hour - Development & Highlights
• When is a Commute Not a Commute? In a Company Car (Well, Maybe)! — from Wage & Hour Insights
• Six reasons why Hobby Lobby does not spell “doom” for women — from Robin Shea’s Employment and Labor Insider

Labor Relations

• Why calling the boss a “f**king a**hole” may be protected activity — from Mike Haberman’s Omega HR Solutions
• You Be The “Judge”: Is Swearing at Work Protected by Federal Law? — from Dan Schwartz’s Connecticut Employment Law Blog
• Latest No-Solicitation Policy to be Struck Down by the NLRB — from Matt Austin Labor Law
• Staying One Step Ahead of Norma Rae — Tips for Staying Union Free — from Labor & Employment Law Perspectives
• Employer’s Social Media Policy Found Not To Violate Employees’ Rights — from Michigan Employment Law Advisor
• GC To Board: Adopt New Joint Employer Standard — from Labor Relations Today
• How the NLRB Is Like Charlie Brown — from Minnesota Employer

Time after time: temporal proximity and retaliation

Marla Montell reported an allegation of sexual harassment against her supervisor, Austin Day, to human resources  at Diversified Clinical Services. The HR rep contacted Day almost immediately. The next day, Day called Montell and told her that she should resign or would be fired. Chose the former, and then sued the company for retaliation. 

The only evidence Montell presented in support of her retaliation claim was the timing of her termination in relation to her internal harassment complaint. For its part, the company claimed that Day was motivated by Montell’s performance history, which included a PIP, a documented oral counseling and development plan, a Final Warning, and an Amended Final Warning. The Amended Final Warning, issued on May 3, 2011, provided Montell until June 2 to improve her performance or be fired. She resigned in lieu of termination on May 20.

In Montell v. Diversified Clinical Servs. (6/27/14), the 6th Circuit was faced with the question of whether the mere timing of Montell’s resignation was sufficient to support her retaliation claim under Title VII. Following its own precedent, and that of the Supreme Court, the 6th Circuit concluded that Montell’s retaliation claim should go to a jury to determine whether there existed a nexus between her protected activity and her forced resignation:

[E]mployees who are about to be fired should not abuse the civil-rights protections by filing frivolous harassment complaints. However, it cannot be open season for supervisors to sexually harass poorly performing employees. Such employees must still be provided with their legal protections.… [W]e must analyze the evidence of how and when the adverse employment action occurred to determine whether it squares with the action previously contemplated. If it does, then temporal proximity is not evidence of causality, but if the adverse employment action is unlike the action previously contemplated or does not occur on the schedule previously laid out, then the temporal proximity of the adverse action to the protected conduct is certainly evidence of causation.

In other words, was the decision to terminate Montell a mere continuation of her performance history, or a reaction to her protected activity? In this case, because Montell faced termination before the June 2 date contemplated by the Amended Final Warning, the court concluded that the adverse action sufficiently deviated from the performance history to create a jury issue over the timing of the termination.

If you are going to terminate an employee on the heels of protected activity, you best have all of your ducks in a row. If Montell’s performance objectively had not improved by June 2, I suspect this case would have come out differently. Because the employer jumped the gun on the termination, it called into question the employer’s motivation, especially within 24 hours of a harassment complaint.

Employees who complain about harassment or discrimination aren’t bulletproof. But, you better be damn sure you’re using the right ammo. If there can be any doubt about your motivation, you take a huge risk in firing an employee on a timeline such as that in Montell.

Hear me on The CYA Report discussing Hobby Lobby

Today we’re going to try something a little different. Usually, you get to read my thoughts on the employment law issues of the day. Today, you get to hear my voice, waxing philosophical on the Supreme Court’s Hobby Lobby decision.

Last week, Kris Dunn (old friend, and proprietor of, among other things, The HR Capitalist) asked if I’d appear on his podcast, The CYA Report, to discuss the case.

Kris and I discussed: What does Hobby Lobby mean? Are corporations people? And, what employment law areas can we expect its holding to challenge?

Take a listen here.

What does the ADA say about employee medical information and social media?

The ADA protects, as confidential, employee medical information obtained by an employer.

Last year, I asked the following questions about the impact of social media on this confidentiality obligation:

What happens, however, when an employee suffers an on-the-job injury and a supervisor shares information about the injury on a Facebook wall or Twitter page? Or, what about when a supervisor posts about a co-workers illness? I can be as innocuous as, “I hope John Smith has a quick recovery from cancer,” or spiteful, like, “I can’t believe John Smith has cancer and I have his workload while he’s out on medical leave.”

At the time, my questions were hypothetical, as no court had yet to address the issue. A few weeks ago, however, an Indiana federal court—in Shoun v. Best Formed Plastics—began sketching an answer. 

George Shoun took a few weeks off from work to recover from a workplace injury, Jane Stewart, a co-worker, knew about his injury because she was responsible for processing his work-comp claim. Stewart went on her personal Facebook page and posted the following about Shoun: “Isn’t [it] amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.” 

Shoun sued his employer, claiming that Stewart’s Facebook post violated the ADA’s confidentiality requirements by “deliberate[ly] disclos[ing] [his] medical condition to another person.”

The court denied the company’s motion to dismiss Shoun’s lawsuit. The company claimed that its employee had not violated the ADA because Shoun had voluntarily disclosed his medical condition by filing an earlier iteration of his ADA lawsuit before Stewart made her Facebook post. The court disagreed, concluding that Shoun had not voluntarily disclosed his medical condition to Stewart or anyone else at the company; he only disclosed it via a court filing.

All is not lost for employers, however. The court made a clear distinction between unprotected medical information that an employee volunteers to co-workers and protected medical information that an employer learns via an employer-sponsored medical examination or program.

Despite this glimmer of hope, employees need to be very careful when discussing a co-worker’s health on social media. And, employers need to train their employees about the ADA’s confidentiality rules and the extension of these rules to the 24/7 world of social media. Employees must understand that confidential medical information—workers’ compensation claims, FMLA claims, reasonable accommodation requests, and other medical information related to the performance of the job—is off-limits for discussion. 

Social media is informal and instantaneous. Employees often post before they think about the implications of what they are posting. ADA violations are likely the furthest from one’s mind when posting about a co-worker’s injury or medical issue. A policy statement—and, more importantly, training—on this issue could save you from a disability discrimination lawsuit down the road.

EEOC transforms a $1.39 bag of chips into a $180,000 settlement

Nearly three years ago, I reported on a disability-discrimination lawsuit filed by the EEOC against Walgreens. The agency had filed suit of behalf of a diabetic employee who, without permission, took a bag of chips off the shelf to stabilize her blood sugar level during a hypoglycemic attack. Walgreens considered it shoplifting and fired the employee. The EEOC considered the termination a failure to reasonably accommodate the employee’s disability and filed suit.

Last week, Walgreens settled the lawsuit, agreeing to pay the ex-employee $180,000, in addition to agreeing to implement revised policies and training.

Whether you think this is a fair settlement, or that Walgreens overpaid, depends on whether you view the termination an unfair discrimination against an employee trying to stop a medical episode, or a reasonable enforcement of a retailer’s anti-shoplifting policy. In denying the employer’s motion for summary judgment earlier this year, a federal judge strongly hinted it was the former:

Here, the misconduct alleged by Walgreens that formed the basis of her termination was the taking of the chips without paying for them first, an act Hernandez claims was caused by her disability. Walgreens has failed to allege any misconduct that is unrelated to her disability.

In announcing the settlement, the EEOC also recognized the dichotomy between discrimination and theft-prevention:

People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.

As for me, I don’t believe either interest trumps in this case. I firmly believe that employers like retailers (or casinos) must do everything they can to prevent and deter employee theft. These measures include terminations that, under other circumstances, might seem overly harsh. Yet, in this case, the company knew about this long-term employee’s medical history, and refused to let the employee pay for the chips after her recovery. This does not appear to be the case of an employee nefariously grazing on unpaid goods. Instead, it appears to be a case of employee making a snap judgment in response to a medical condition, and trying to make good on it after the fact. Given these facts, this case seems like an odd one for this employer to litigate for three years. It could have cut its losses, settled early, and saved itself three years of legal fees. Yet, I also see the import of the employer’s “zero tolerance” stance.

This case illustrates how difficult reasonable accommodate cases are. When the accommodation is so trivial (a $1.39 bag of chips, for example), employers should strongly consider making the accommodation for an employee’s medical situation regardless of the scenario. It is difficult to justify a claim of hardship based on a economically trivial accommodation. Even when the interest the employer is trying to protect is as strong as deterring theft, the cost of defending that interest may to be too high, especially in light of the uncertainty related to the potential outcome of very fact-specific litigation.

Why I Write: Reflections on the Ohio Employer’s Law Blog

Earlier this week, I was tagged in a “blog hop.” “What is a blog hop,” you ask? it is a blog-to-blog chain letter built around a common theme. The theme of this blog hop is writing. My good friend, and author of the Connecticut Employment Law Blog, Dan Schwartz, tagged me in his blog hop. Given that he called me a blogging “rock,” and “great person,” how could I not take up his challenge and continue the chain (especially since Dan and I started our respective blogs within a few months of each all the way back in 2007, and I respect him as much as anyone else in the legal blogosphere).

What am I working on?

The Ohio Employer’s Law Blog (of course). I started my blog in 2007 to fill a niche. There were only a few lawyers blogging in the Cleveland area, and none on labor and employment law. “What a great way to differentiate myself,” I thought. I also love the creative aspect of writing, a love which my blog lets me sate in spades. Let’s face it, no lawyer ever won a prize for the most creative opposition brief. The blog has also let me spread my wings. Workforce.com cross-publishes every post I write on a blog it calls The Practical Employer. I also write a monthly column for Workforce Magazine, and serve on its editorial advisory board. My blog has also allowed me to publish a couple of books (The Employer Bill of Rights and Think Before You Click). In short, the blog has opened up opportunities for me that nothing else could have, and for that I am grateful.

How does my writing differ from others of its genre?

Legal writing is, well, boring and impersonal. I try to break that stereotype. For one, I write about my personal life. I believe that you cannot understand one’s take on an issue unless you under that which influences that person’s life view. So, I’ve written about my wife, my daughter, my son, and even my dog. I’ve also written about vacations (with the kids and without), concerts, and German daughters. Each of these posts provides a glimpse into who I am when I’m not a lawyer, which, in turn, influences who I am as a lawyer. I also try to have fun. I love it when someone emails or tweets their appreciation for a punny title or song reference.

Why do I write what I write?

I write what I write out of love. I know that sounds trite, but I love to write. The Internet is a junk yard of discarded blogs. I am proud that I’ve posted every work day for more than seven years. But, you cannot do that if you write for any reason other than love. I have a passion for labor-and-employment law and a passion for writing. This blog lets me combine the two in a way that I hope is unique and different for my readers.

How does my process work?

The question I am most often asked is some variation of, “Geez, you must spend a lot of time blogging. How do you find the time to blog and practice law?” The reality is that after seven years, it’s not as time intensive as it looks. I consume a ton of information, mostly from Twitter and Feedly. I bookmark those stories or cases that look blog-worthy. I do most of my writing early in the morning or late at night. The speed at which I can post is helped by the fact that I’m not writing law review articles or case briefs. I try to give the quick summary of the issue, and then make a practical point or two for businesses to take away. My audience isn’t necessarily lawyers, so I don’t feel the need to give deep, searing legal analysis. Instead, I try to focus on the practical.

Please check out my blogging friends

Every Friday, I share a list of what I’ve read that week. Weekly, each of the following usually makes an appearance, so the fact that I am tagging them to continue this blog hop shouldn’t surprise them or you:

• Molly DiBianca, author of the Delaware Employment Law Blog, who’s been doing the blogging thing almost as long as I have, has a unique voice that is always worth reading.
  
• Eric Meyer, author of the Employer Handbook Blog, like me writes every business day. His posts are worth checking out for no other reason than to see his song of the day, which is always creatively tied in to the day’s employment law topic.
  
• Phil Miles, author of Lawffice Space, who is usually first to post about breaking news such as a hot-off-the-presses Supreme Court decision.

As for me, I’m taking an extended holiday weekend. Enjoy your 4th, and I’ll see everyone back on Monday morning.

Will Hobby Lobby give Title VII fits?

Yesterday, the Supreme Court decided Burwell v. Hobby Lobby Stores [pdf], holding that a closely held corporation is a “person” that can hold a religious “belief” for purposes of the Religious Freedom Restoration Act (which prohibits the federal government from taking any action that substantially burdens the exercise of religion unless it is the least restrictive means possible). Thus, the plaintiff was able to rely on its religious beliefs to opt out of the requirement of the Affordable Care Act (aka Obamacare) to provide healthcare coverage for contraceptives. 

The opinion is long, but worth the time to read. I want to focus, however, on Justice Ginsburg’s scathing dissent.

Justice Ginsburg believes that the majority’s opinion is not limited to the ACA’s contraceptive mandate, but instead will enable any company to opt out of any non-tax law on the basis of a religious belief:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. 

What about Title VII and the other ant-discrimination laws? What if a company has a sincerely held religious belief that it is okay to discriminate based on race? Or, how about a company, that, because of its religious beliefs, segregates its men and women? Would Hobby Lobby permit those employers to opt out of Title VII? Hobby Lobby does not answer these questions. Instead, it leaves them to lower courts to interpret in future cases. We will have to watch and see how these issues play out down the road.

I agree, however, with Justice Ginsburg, that we need to worry about how companies will try to use this opinion to opt out of laws they do not like. I am concerned that this opinion could lead to a slippery slope of companies using religion to pick and choose laws based on their socio-political beliefs, which could undermine our civil-rights laws, and is antithetical to the First Amendment religious freedoms upon which out country was founded.

How many pre-employment medical exams does the ADA permit?

The ADA applies a traffic-light approach to employer-mandated medical exams.

• Red Light (prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that a job related. 
• Yellow Light (after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
• Green Light (after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.

McDonald v. Webasto Roof Systems (6th Cir. 6/25/14) [pdf] concerns the interpretation of the green-light, post-offer conditional medical examination. The question the case asks is how many post-offer, pre-employment medical examinations may an employer require of an individual? The answer is as many as reasonably necessary to determine whether the employee can perform the essential functions of the job with or without a reasonable accommodation.

Colin McDonald applied to work as a maintenance employee at Webasto. The job required one to be able to perform certain physical activities. His initial medical examination revealed a history of back problems, but ultimately concluded that he could perform the essential functions of the job. Concerned about the back injuries, Webasto sent him for a second opinion, which ultimately disqualified McDonald from the job.

McDonald claimed that the second examination violated the ADA’s requirement of one post-offer, pre-employment examination. The Court of Appeals disagreed:

The [ADA’s] regulation refers to “[m]edical examinations” in the plural. More saliently, McDonald cites no authority interpreting the ADA to prohibit more than one pre-employment medical examination. EEOC guidance expressly provides that an employer may request “more medical information … if the follow-up examinations or questions are medically related to the previously obtained medical information.” … Webasto required a second medical examination only after the first revealed a history of “[l]umbar bulging discs.”

This case makes a whole lot of sense. The purpose of pre-employment medical exams is to confirm that an employee is capable of performing the essential functions of the job. This employer was concerned because of conflicting information revealed by the first exam. The follow-up exam was the best way to determine if the individual could physically perform the job. 

If one can prove that the second exam was an unjustified fishing expedition, then one might have a claim under the ADA. Where, as was the case here, however, the second exam is medically related to the first exam, the ADA should not cause a problem.

WIRTW #327 (the “Noel Canning” edition)

Yesterday, the Supreme Court decided what might be its most important labor-and-employment decision of the current term—NLRB v. Noel Canning—which held that President Obama lacked the authority to make recess appointments to fill NLRB vacancies. The case likely invalidates more than a year of NLRB decisions.

Here’s what the rest of blawgosphere has to say about this decision:

• Court strikes down recess appointments: In Plain English — from SCOTUSblog
• Supreme Court Invalidates NLRB Recess Appointments; Dozens of Decisions Impacted — from Dan Schwartz’s Connecticut Employment Law Blog
• Supreme Court’s Noel Canning Decision Invalidates Numerous NLRB Decisions — from Stoel Rives World of Employment
• Supreme Court Strikes Down NLRB Recess Appointments: 9-0 — from Jonathan Segal
• Supreme Court Rejects President’s Recess Appointments as Unconstitutional — from Trade Secret / Noncompete Blog
• Justices Find NLRB Recess Appointments Invalid — from WSJ.com Law Blog
• Supreme Court Affirms, but Narrows, D.C. Circuit’s Decision in Noel Canning — from Workplace Prof Blog
• SCOTUS on NLRB Recess Appointments — from Phil Miles’s Lawffice Space
• U.S. Supreme Court: President’s “Recess Appointments” to NLRB Were Invalid — from What’s New in Employment Law?

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

Discrimination

• Should You “Go Solo” Before The EEOC? Is “Don’t Use An Attorney” Good Advice? — from Employment Discrimination Report
• When Does A Workplace Joke Go Too Far? — from Evil Skippy at Work
• Nooses, n-words, and confederate flags, but no discrimination — from Eric Meyer’s The Employer Handbook Blog
• Sixth Circuit finds all anti-retaliation provisions are not created equal, but they are legal landmines. Watch your step. — from Employer Law Report

Social Media & Workplace Technology

• Our society’s view on commuting (and telecommuting) is still painfully warped — from Boy Genius Report
• More Employers Not Hiring Due to What They Find on Social Media — from TLNT
• Facebook Post Means No Unemployment Benefits for Nurse — from Molly DiBianca’s Delaware Employment Law Blog
• Give It a Rest: Constant Connectivity Not Good — from Joe’s HR and Benefits Blog
• How to know when it’s OK to look at your smartphone during dinner — from Boy Genius Report

HR & Employee Relations

• A Note from the U.S. Coach is a Great Idea, But Not a Good Excuse — from Dan Schwartz’s Connecticut Employment Law Blog
• Should There Be Restrictions on Restrictive Covenants? — from The Emplawyerologist
• Considerations for Technology Companies to Attract, Motivate and Retain Key Talent — from Technology Company Counselor
• My Disturbing Experience With Employee Reviews — from You’re the Boss Blog
• What HR Professionals Can Learn From Casey Kasem — from EntertainHR

Wage & Hour

• In the News (again) — Paid Leave — from Workplace Prof Blog
• Push for Parental Leave Grows Due to More Family-friendly Workplaces — from Smart HR Manager
• Court Awards Fees And Costs Against USDOL — from Wage and Hour Laws Blog
• Offset as Defense to FLSA Suit May Mitigate Unpaid Wage Claims — from Wage & Hour Defense Blog
• Heigh-Ho, Heigh-Ho, It’s Off to a Non-Compensable Commute We Go — from Wage & Hour Insights
• Second Circuit Court of Appeals Addresses FLSA’s Public Agency Volunteer Exception, But Withholds Comment on Private Sector Volunteers — from Employment Matters Blog
• Echoing White House Mandate, Senate Dems Release Proposal to Overhaul FLSA Exemptions and Overtime Regulations — from Minnesota Employment Law Report
• DOL Proposes New Definition of “Spouse” for FMLA — from Phil Miles’s Lawffice Space
• Can An Employee Who Receives All of His or Her FMLA Leave Bring an FMLA Interference Claim? — from Minnesota Employer

Labor Relations

• It’s Time for a New Partnership Between Labor and Management — from Harvard Business Review
• NLRB Continues to Throw Up Roadblocks for Internal Investigations — from Pennsylvania Labor and Employment Blog
• NLRB ready to back broad union organizing and collective activity — from Business Management Daily

Supreme Court holds NLRB recess appointments invalid. Chaos ensues?

This morning, in NLRB v. Noel Canning, the U.S. Supreme Court held that President Obama exceeded his authority in making recess appointment to fill vacancies on the NLRB in 2012. 

A copy of the opinion is here: http://www.supremecourt.gov/opinions/13pdf/12-1281_bodg.pdf

If you read the early analysis around the Web, you will see people calling this opinion “narrow” and “limited.” Make no mistake. If you are an employer, this case is huge. It likely means that every case decided by the NLRB during the time of the recess appointments (January 2012 – July 2013) is void. That’s a whole bunch of NLRB decisions out the window, including some of its cutting edge, and controversial, decisions on issues such as social media and protected concerted activity. 

Stay tuned for more analysis of this critical Supreme Court decision. 

The Supreme Court’s opinion on cell phone privacy is a must-read for all employers

It’s a rare day that I write a post of which the vast majority is a 900-word quote from a court opinion. Yesterday’s decision by the U.S. Supreme Court in Riley v. California [pdf], however, is significant enough to cede my space to the words of Chief Justice Roberts:

Cell phones differ in both a quantitative and a qualitative sense from other objects.… The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity.… Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so.…

But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos.… Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand entry phone book, and so on.… We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. 

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. See Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013).… Today … it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.… 

Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.…

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.… 

To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself.… Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.… Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another.

Riley is a 4th Amendment search-and-seizure case. It’s not an employment case. So, why, you ask, is it so important? For the first time, our highest court is recognizing, in great detail, the significant privacy interests we expect in our mobile devices. Does your company have a cell phone or mobile device policy? Does it explain to your employees that they are giving up certain expectations of privacy if they accept your phone or connect their own phones to your network? In light of Riley, if you don’t have this policy containing these disclaimers, you better, because courts are going to become increasingly hostile to claims that individuals do not have privacy expectations in their mobile devices.

There's no such thing as a free lunch, unless you're the NLRB

Let’s say you’re a popular Kansas City barbecue chain that provides employees the benefit of a free meal during each employee’s shift. Let’s say a labor organization, upset at your low wages, organizes a one-day strike in the hopes of “encouraging” you to raise your employees’ rate of pay to $15 an hour. Your employees exercise their rights under the National Labor Relations Act to walk of the job for a day in support of a demand for higher wages, and then exercise their right to return to work the following day. But, when they return to work, the free-lunch benefit they had been receiving is no longer available.

In Gates & Sons Barbeque of Missouri, Inc. (June 17, 2014), and NLRB Administrative Law Judge concluded that the employer’s elimination of the free-lunch benefit violated the NLRA as retaliation against the employees for their one-day wage strike:

Shipley, the store manager with authority to continue or discontinue the meal benefit, told employees that if they participated in the strike they would “feel [his] wrath,” “might has well find another place of employment” and would be terminated.… These statements are more than sufficient to establish that the Respondent bore animosity towards the protected strike activity, but the timing of the action makes the case even stronger. The Respondent first notified employees that the meal benefit was being discontinued immediately upon their return to duties after the strike.

As a remedy, the ALJ ordered the employer to reinstate the free-meal benefit. 

We’ve looked at a lot of protected concerted activity cases in the last few years. Unlike the social media and workplace communication cases, this one is pretty straight forward. You can’t take away a benefit or otherwise retaliate against employees when they strike over wages. But, this case raises a deeper point. By all appearances, this employer did not know this basic principle of labor law. Employers have an obligation to educate themselves about the laws that govern their relationship with their employees. This case was low-hanging fruit for the Board. Don’t leave your fruit hanging. 

The united colors of harassment claims

Let’s take a look at two recent settlements of harassment claims brought by the EEOC:

1. A Tampa, Florida, bank paid $300,000, resulting from a manager’s ongoing harassment of subordinate female employees, which included repeatedly trapping a 20-year-old behind the teller counter with his body, telling a woman she should wear a bathing suit to work, regularly staring at women’s breasts, and frequently caressing and grabbing a female employee.
2. A Charlotte, North Carolina, security-services company paid $155,000, resulting from a two managers’ repeated harassment of subordinate male employees, which included making offensive sexual comments, soliciting nude pictures, asking one to undress in front of him, soliciting sex in exchange for promotions, forcing accompaniment to a gay bar while on duty, touching certain employees’ chest and genitals.

It’s difficult to compare settlements in different cases based on value. They involve different parties, lawyers, judges, and allegations. Yet, it strikes me that if one compares the offensiveness of the misconduct alleged in these two cases, number two seems a whole lot more egregious than number one. Yet, number one paid double. I’ll ignore making the generalization that we, as a society, view same-sex harassment differently than the harassment of women by men, and, instead, conclude that similar cases offer lend to different results, often for arbitrary reasons.

I’ll leave you with the words of Lynette A. Barnes, EEOC regional attorney, who comments that employers need to halt all workplace sexual harassment:

All workers have the right to work in an environment free from sexual harassment. No one should have to put up with sexual comments or touching while they are just trying to make a living. Employers need to halt or prevent it—and the best prevention is training supervisors and managers on how to put a stop to such misconduct as soon as it appears.

I’ll let you decide about which of these two cases she made this observation.

Is it ethical to check jurors’ social media accounts?

Every jury trial starts with what is called voir dire—a question-and-answer session between the lawyers and the pool of potential jurors. As lawyers, we are trying to deselect those jurors whom we feel would be unfairly biased against our case or our client. It is much more an art than a science, and the more information we can gather about potential jurors, the more educated of a decision we can make that a juror is not the right fit for our case. 

Recently, the American Bar Association made this information gathering a little bit easier. In an ethics opinion (h/t: ABC News), the ABA gave lawyers the green light to view jurors’ and potential jurors’ publicly available Internet information, which, for example, could include their Facebook or Twitter musing. 

The Internet is a treasure trove of information about jurors. You could learn their political leanings, religious background, and all about their jobs and families. In short, you could learn the entire backstory of a “connected” juror.

But, do you want to? Just because this information gathering is ethical does not mean it’s strategically wise. By using the Internet as a basis for questions about a potential juror, you will clue the entire pool of jurors in on the fact that you’ve been trolling online for information about them. They might view your ethical conduct as a creepy invasion of their privacy. Voir dire is as much about you learning about the jury as it is about the jury learning about you. In other words, you don’t want to piss off the jury during voir dire. If you lose credibility before the trial even starts, what chance do you have to win the case?

So, lawyers, my take is that Facebook-ing potential jurors presents more of a risk to damaging your credibility with the jury than any benefit you will receive from learning information to help with the inexact science of voir dire. And, if you choose to research jurors online, keep that choice private, and don’t let the jury know you’ve been trolling them. It’s not worth the risk of the jury punishing you for it from the privacy of their deliberations.