Don’t forget the photo authorizations for your holiday party

Are you having a holiday party for your company? Are you planning on sharing the cheer by posting photos of said party on your corporate Facebook page or other social media? If so, don’t forget to have your employees sign authorizations before you post those photos.

Like many states, Ohio has a statute that protects an individual’s name, voice, signature, photograph, image, or likeness. This “right of publicity” prohibits one from using another’s persona for a commercial purpose without written consent.

It may be sufficient to have statement in your employee handbook advising employees that, from time to time, the company may post pictures of employees on the company’s website, Facebook page, etc., and employees who wish to opt out should advise HR in writing. The overly cautious employer, though, will want this to be an opt-in process, with employees providing specific written consent for the use of their likeness in photos.

Regardless, employers should do something to ensure that they are not infringing on employees’ right of publicity with photos of employer-sponsored events. Otherwise, your holiday lump of coal might come in the form of a lawsuit by a shy, and overly litigious, employee.

Jury verdicts are just numbers on a paper

On Monday, a California jury awarded a former Autozone employee $185 million in punitive damages. She had sued the company for pregnancy discrimination, claiming that the district manager who fired her was promised a promotion if he fired all of the women in his stores. Last week, the same jury awarded the plaintiff $900,000 in compensatory damages for lost wages and emotional distress.

While $185 million is a staggeringly huge number, this plaintiff will only ever collect a tiny fraction of it, at best. Due process tells us that punitive damages must bear some reasonable relationship to the size of the compensatory award, typically not to exceed a ratio of 9:1.

Moreover, if this case was filed in Ohio, and not California, damage caps would kick in to severely restrict the verdict. Ohio’s tort reform law caps punitive damages in state-law employment discrimination claims to two-times the compensatory award. Thus, in Ohio, this plaintiff’s punitive award would cap at $1.8 million, still a large number, but out of the nine-figure stratosphere.

Jury verdicts are headline grabbers—big splashy numbers that grab everyone’s attention. Trust me, Autozone’s attention has been grabbed. It will file a motion to reduce the jury verdict, and it will appeal, while, at the same time, this plaintiff will file motions seeking her attorneys’ fees. Ultimately, this case will confidentially settle, and we will never know the final dollars exchanged.

More damaging than the amount of the award is the negative publicity associated with it. Because of the verdict’s inordinate size, the press has labeled Autozone as a company that discriminates against women in the worst way possible—systemically and intentionally. That damage is much worse than this employee punching a lotto ticket that she will never cash.

More on data security as an unfair labor practice

A few months ago, I wrote how the NLRB was exploring new areas of potential protected concerted activity to regulate. One such area is information and data security.

According to Employment Law 360, the NLRB potentially is looking to expand its reach in the area of cybersecurity, this time investigating whether an employer was required to bargain with its labor union over the impact of a data breach on its employees:

A postal workers union has lodged a charge with the National Labor Relations Board over the U.S. Postal Service’s handling of a recent data breach, a novel move that adds union negotiations to the already sprawling list of concerns companies must contend with in their race to mitigate cyberattacks.

In a Nov. 10 charge filed with the NLRB, the American Postal Workers Union accused USPS of engaging in unfair labor practices in violation of the National Labor Relations Act, by failing to give the union advance notice “that would enable it to negotiate the impacts and effects” on employees of the cyberattack….

The union specifically took issue with USPS’ offering employees affected by the incident one year of free credit-monitoring, a decision that the postal workers characterized as a unilateral change to wages, hours and working conditions that an employer is generally not permitted to make without first bargaining with the union.

Responding to a cyber-attack is complicated and complex. The federal FTC, along with a patchwork of divergent state laws, requires quick communication of various levels of detail and complexity to individuals and regulators following a data breach. If employers need to add communications to labor unions to this list of constituents (and this issue remains very much open), it will create additional burdens on employers, which could potentially slow down a company’s other response efforts.

To avoid these issues, employers should consider bargaining these issues into the terms of collective bargaining agreements, so that you have a game plan in place before you have to respond. Otherwise, when faced with a data breach, you could be faced with running your response programs through the filter of your labor unions, which could hamper your other response efforts, and subject your company to potential liability from the cyber breach.

6th Circuit rules in favor of nonprofit in discrimination claim brought by volunteers

In Bryson v. Middlefield Volunteer Fire Dep’t, the 6th Circuit held that a “volunteer” can qualify as an employee covered by Title VII under certain limited circumstances. In making that determination, a court must examine not only whether the volunteer is paid, but also the degree of control exercised by the employer over the manner and means by which the work is accomplished.

Last week, in Sister Michael Marie, et al. v. American Red Cross [pdf], the same court applied that test to uphold the dismissal of the Title VII religious discrimination, retaliation, and harassment claims filed by two nuns against the organization for which they had volunteered. In concluding that the two plaintiff-nuns were bona fide volunteers, and not employees, the court heavily relied on the lack of compensation paid by the Red Cross, coupled with its inability to control their performance via termination of employment or threat thereof.

An employer’s ability to terminate a non-compliant employee, which is perhaps an employer’s greatest source of control, is meaningful because the employee stands to lose not only her job, but also the source of income upon which she depends…. Though we make no attempt to resurrect the economic realities test from the grave, its  central teaching remains instructive…. The economic reality is that when volunteers work without traditional forms of remuneration like salary and benefits, employers are generally without leverage to control that volunteer’s performance.

While you might think it’s cold to conclude that two nuns could not pursue discrimination claims, this case makes a broader policy statement in favor of nonprofit organizations. The lifeblood of nonprofits is their volunteer base. Without the aid of volunteers, nonprofit organizations, which operate on limited budgets and scant resources, would not survive. If volunteers could easily sue these organizations for discrimination or other employment-related claims, nonprofits would be much more reluctant to use the services of volunteers to staff their needs, thus making it much more difficult for them  to carry out their missions and provide their essential services.

By relying heavily on the lack of payment to show lack of control, the 6th Circuit drew a line that will be difficult for most bona fide volunteers to cross to demonstrate employment status. And while no organization should discriminate against anyone providing services to it, this case decides that the public good done by nonprofit organizations outweighs the public policy against employment discrimination.

WIRTW #345 (the “earworm” edition)

Ever since my wife and I went to see Rhett Miller a couple of weeks ago, Lost Without You has been stuck in an unending loop in our collective head. Now, it is my gift to you.

For earworms, you could do a whole lot worse. At least Lost Without You is a good song. It could be It’s A Small World.

Here’s what I read this week:

Discrimination

• Despite Employment Discrimination Training, “Human Nature Often Rears Its Ugly Head” — via Employment Discrimination Report
• Seed and Fertilizer Providers to Pay $187,500 for Genetic Information and Disability Discrimination — via EEOC News Releases
• Obesity: Grounds for Unlawful Discrimination in Europe? — via LE Blog
• Is your wellness program illegal according to the EEOC? — via Omega HR Solutions
• 3 Tips for Harassment Investigations — via Molly DiBianca’s Delaware Employment Law Blog
• Sexting, flirting, but no sexual harassment here — via Eric Meyer’s The Employer Handbook Blog

Social Media & Workplace Technology

• Home Depot switches execs to iPhones, MacBooks as it blames Windows for massive breach — via TiPb
• Harvard secretly installed cameras in lecture halls to monitor student attendance — via The Verge

HR & Employee Relations

• Tuesday’s GOP “shellacking” may not change much for employers — via Robin Shea’s Employment & Labor Insider
• The Workplace Issues That Keep HR Professionals Up at Night — via TLNT
• Everything You Need to Know About Paid Sick Leave — via Evil HR Lady, Suzanne Lucas
• The Right Way to do an Exit Interview — via Blogging4Jobs
• Study: Men value work flexibility, too — via Business Management Daily
• Background Check Settlements Still Costing Employers Big Dollars — via Dan Schwartz’s Connecticut Employment Law Blog

Wage & Hour

• Why a 40-Hour Worker Means More to Small Businesses — via WSJ.com: Small Business
• A Labor and Employment Audit of Santa’s Workshop — via New York Labor and Employment Law Report
• Intern-Employee FLSA Case Dismissed Because Clinical Experience Is Not “Work” — via Wage & Hour - Development & Highlights
• Put Up or Shut Up: 8th Circuit Shuts Down Overtime Claim Because Plaintiff’s Guestimates of His Hours Worked Are Insufficient — via The Wage and Hour Litigation Blog
• Gentlemen’s Club Cannot Strip Dancers of Employee Status — via Labor & Employment Law Perspectives
• Wage & Hour Litigation Insurance: A Viable Option for Employers Wishing to Mitigate Risk? — via Washington Workplace Law

Labor Relations

• In Murphy Oil, NLRB Reaffirms Its Stance on Class Action Waivers — via In House
• Obama Withdraws NLRB nominee — via The Hill’s Briefing Room

Are you doing enough to protect your trade secrets from theft in the cloud?

Do your employees use Dropbox (or Google Drive, or Box, or iCloud, etc.) to store work documents? The appeal of these cloud services is easy to see. Because they provide the ability to store electronic files and access them across multiple devices linked to the same account (i.e., one’s office PC, home computer, iPhone, and iPad), they have exponentially increased the work-life balance of employees who need to work beyond the traditional 9-5. With that benefit, however, comes significant risk to employers.

You may think Dropbox and other cloud services don’t present a risk. After you, your employees are loyal and trustworthy. But, it only takes one layoff to turn a loyal employee into a desperate job seeker looking to provide value to turn a prospective employer into a new job. In that instance, the trade secret cat is out of the bag, and you are spending, and spending, and spending, to try to wrangle it back in.

I’ve seen two cases in which a company alleged that an employee absconded with trade secrets or other confidential information by storing them remotely on a cloud service.

• In a lawsuit filed last week, Lyft accused its former COO of snatching thousands of sensitive documents when he left to work for its chief competitor, Uber. The mode of theft? The downloading of emails and documents to his personal Dropbox account in the months leading up to his defection.
• Last year, Zynga settled a lawsuit it had filed against a former manager whom it alleged had used Dropbox to steal its trade secrets upon leaving for a rival startup.

What can an employer do to minimize risk of trade-secret misappropriation or other breach of confidentiality, short of filing expensive and protracted litigation? Consider these 8 steps, courtesy of the ABA Section of Litigation’s Intellectual Property Committee:

1. Limit access to trade-secrets on a need-to-know basis. The fewer people with access to trade secrets, the more likely the information will remain secret.
2. Limit access to cloud-based solutions on company computers and prohibit any use of personal cloud solutions for company materials. Consider installing software to limit access to any cloud solutions that are not approved by the company.
3. Implement policies and train employees about the use (or non-use) of cloud solutions and, more generally, about the protection of confidential information. Employee handbooks, new-employee orientations, posted company policies, and annual employee training sessions all provide opportunities to address these issues.
4. Monitor when files are accessed or downloaded, and by whom. This will allow the company to take immediate action in the event it discovers suspicious activity.
5. Require employees to sign NDAs. All employees should sign NDAs prohibiting them from taking or using company information for any purpose other than their work for the company. These obligations should extend beyond termination.
6. Conduct exit interviews. This will allow the company to explore whether the employee retained any confidential information and to instruct him or her that any such information should be immediately returned or destroyed.
7. Collect and secure computers used by terminated employees. By examining the computer of a former employee, a company can often determine if any information was taken before the employee’s departure and what that information was.
8. Label or name files containing trade secrets as “Confidential” or “Trade Secret.” While this probably will not prevent unauthorized use or access, it may help a company to persuade a court that any misappropriated information still qualifies for trade-secret protection. This is because confidentiality labels help show that the company took reasonable steps to maintain secrecy by notifying the employee as to the sensitivity of the information.

You cannot absolutely protect against the use of the cloud by your employees. All an employee has to do is email a file to a personal email account, and your control over that file is gone. Implementing these 8 measures, however, will place your business in the best position possible to limit your risk, and secure against theft of sensitive information by exiting or otherwise disgruntled employees.

Recap of #hrintelchat on pregnancy discrimination

Yesterday afternoon, Jeff Nowak and I had a lively tête-à-tête on Twitter—aka the #hrintelchat—on all things pregnancy discrimination. In case you missed it (and given the numbers of folks tweeting along, I’m going to guess that you did), below is a neat little summary of the hour-long tweetfest. The rights of pregnant workers is an important issue that will only get more important and dual-income families and single moms are the rule and not the exception.

Thanks to Thompson HR for the invitation and for hosting. I enjoyed my hour of tweeting (even if my wrists and fingers did not).

#hrintelchat Tweets

Putting paternity leave on equal footing with maternity leave, #hrintelchat

This afternoon, from 3 – 4 pm, EST, I, along with my friend, Jeff Nowak, will be hosting a TweetChat for Thompson Information Services on the “Evolving Rights of Pregnant Employees in the Workplace.” Follow us on Twitter at #hrintelchat, and tweet your questions or comments to @ThompsonHR, @jeffreysnowak, and @JonHyman. We’ll be discussing workplace right and accommodations of pregnant employees. More information is available here.

While our TweetChat will focus on the rights of pregnant women, females aren’t the only ones that have workplace rights when it comes to new babies. According to the New York Times, even though many men have the same right to paternity leave that their female counterparts have to maternity leave, few exercise that right out of fear and stigmatization.

Paternity leave is perhaps the clearest example of how things are changing — and how they are not. Though the Family and Medical Leave Act of 1993 requires companies with more than 50 employees to provide 12 weeks of unpaid leave for new parents, it requires no paid leave. The 14 percent of companies that do offer pay … do so by choice. Twenty percent of companies that are supposed to comply with the law, meanwhile, still don’t offer paternity leave…. And almost half the workers in the United States work at smaller companies that are not required to offer any leave at all.

Even when there is a policy on the books, unwritten workplace norms can discourage men from taking leave. Whether or not they are eligible for paid leave, most men take only about a week, if they take any time at all. For working-class men, the chances of taking leave are even slimmer.

Here are a few “don’ts” to keep in mind in managing new dads in your workplace.

• Don’t forget the men in your workplace when you’re crafting leave policies.
• Don’t deny leaves to new dads doling out post-childbirth leaves of absence.
• Don’t punish those that use those policies and leaves, such as limiting promotions, opportunities, or raises.
• Don’t apply unconscious stereotypes about the dedication or loyalty of men who take leaves of absence for familial responsibilities.

Directing the delicate union decertification dance

It was one of the most tense moments of my career. One for the union, one for the employer. That’s how the folded pieces of paper lifted out of the previously sealed box. I sat in the conference room of my client, a company saddled with a labor union it did not want, and a group of employees, who, feeling the same way, filed a decertification petition with the NLRB. One for the union, one of the employer, all the way to 16 – 16. We all held our breath as the board agent lifted the 33rd piece of paper out of the box, unfolded it, and announced that by a margin of one, my client’s employees were no longer represented by a labor union.

I thought of this story over the weekend as I read in the New York Times that the NLRB had issued a complaint against Cablevision, accusing it of threatening to deny a group of employees a pay raise unless they voted to quit their union, and further accusing it of illegally sponsoring a nonbinding poll to determine those same employees wanted to leave their union.

Decertification is a tricky dance. An employer cannot solicit, support, or assist in the initiation, signing, or filing of a decertification petition by its employees. It can, however, provide “ministerial aid” to its employees in response to their own efforts. The test is whether the specific conduct had “the tendency … to interfere with the free exercise of the rights guaranteed to employees under the Act.” Thus, an employer cannot poll its employees to determine whether they support decertification, nor can it help employees circulate the decert petition. It likely can, however, direct employees to their local NLRB office in response to a question about decertification.

What does an employer’s unlawful assistance of a decertification campaign look like? McKesson Corp. [pdf], decided last week by an NLRB Administrative Law Judge, shows us. In that case, the employer assisted a group of employees (to whom it referred as the “magnificent seven”) to circulate a decertification petition. According to the ALJ:

The credited evidence establishes that these individuals did not act on their own but rather on behalf of management and with management’s assistance…. I find that the respondent had embarked on a plot to rid itself of the union and that the seven individuals collecting signatures were part of the plot.

Employers need to be mindful of the distinction between unlawful solicitation, support, or assistance, versus lawful ministerial aid. Critically, employers cannot interject in a decertification campaign. If you have any doubt on where the line is in your case, consult with your labor counsel to avoid a costly error.

WIRTW #344 (the “potty police” edition)

Do you know what rights your employees have to use the bathroom at work? Earlier this morning, Adrienne Mitchell and I discussed that very issue on Marketwatch Radio. You can listen here: When nature calls, does your boss answer?

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On November 11, from 3 – 4 pm, Jeff Nowak and I will be hosting a TweetChat on the evolving rights of pregnant employees in the workplace. Follow along and participate with the hashtag, #hrintelchat. We’ll talk to you then.

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

Discrimination

• Do Accused Harassers Have a Right to Be Heard? — via Employment Discrimination Report
• EEOC: trolling for plaintiffs — via HR Hero Line
• Employer to Forego Inflexible Leave Policy in Settlement of ADA Lawsuit, EEOC Announces — via Joe’s HR and Benefits Blog
• Employee Retaliation Claims Continue to Rise — via Southwest Florida HR Law & Solutions
• EEOC Targeting Wellness Programs — via Workplace Prof Blog
• EEOC Part of Increasing Focus On LGBT Issues — via The National Law Forum
• Knowledge and consistency—Keys to following the prohibitions of Title VII — via InsideCounsel
• Under the ADA, is talking an essential job function for an HR Specialist? — via Eric Meyer’s The Employer Handbook Blog
• Racial talk at work? Beware of reverse discrimination. — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Social Media, The Workplace and the Enforcement Agencies Circus — via Next Blog
• Following Conditional Certification, Court Permits Notice Via Social Media — via Overtime Law Blog
• How to stay anonymous online — via Boy Genius Report
• How Many Policies Can a Worker Violate with One Selfie? — via HR Daily Advisor
• Social media at work: concerns, implications, and best practices — via Technology for HR
• The Internet of Things and Employee Management — via Blogging4Jobs
• Your Workplace Is Going Viral #AlexfromTarget — via Dan Schwartz’s Connecticut Employment Law Blog
• Three Tips for Protecting Your Electronically Stored Confidential Information — via Molly DiBianca’s

HR & Employee Relations

• What HR Will Never Tell You — via The Boss Show (with guest Suzanne Lucas, the “Evil HR Lady”)
• Engaging Your Older Workers — via Harvard Business Review
• How And Why You Should Bring Kids Into The Workplace — via Fast Company
• Businesses must adapt to multigenerational workforce — via The Tennessean
• A Millennial Twist: LinkedIn Pushing Bring Your Parents to Work Day — via TLNT
• The FCRA is the new FLSA — via Employer Law Report
• Future Friday: Monitoring employee well-being by testing their sweat — via Mike Haberman’s Omega HR Solutions
• Should Employers Require Intellectual Property Agreements? — via Evil Skippy at Work

Wage & Hour

• Morgan & Morgan: For The Overtime — via Walter Olson’s Overlawyered
• Motion To Dismiss FLSA Collective Action On Pleadings Fails: An Interesting Tactic — via Wage & Hour - Development & Highlights
• Eleventh Circuit Upholds District Court’s Rejection of Challenge to Employer Records — via Wage and Hour Law Update
• Employee Wins Cross-Country Wage War Against CEO — via Suits by Suits
• Reducing Intermittent FMLA Leave at Work — via Employment Law Bits
• When an Employee Requests FMLA Leave for a Workplace Injury, Is the Employer Required to Report it as an OSHA Event? — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB’s Murphy Oil Decision Reaffirms Board’s Position on Class or Collective Action Waivers Despite Rejection by Federal Courts — via Employer Defense Law Blog
• Has the National Labor Relations Board opened “Pandora's Box”? — via msnbc.com
• NLRB Says On-Line Planning For Insubordination Is Not Protected Concerted Activity — via Labor Relations Update
• Facebook Posts too Insubordinate, Lose NLRA Protection — via Phil Miles’s Lawffice Space
• Another Established Labor Rule Bites the Dust — via Matt Austin Labor Law
• NLRB Revisits the Definition of an Independent Contractor — via TLNT
• NLRB Attempts to Make an End Run Around Courts Invalidating its Rulings on Arbitration Agreements — via Stoel Rives World of Employment

Not all speech on social media is protected

I’ve spilled a ton of ink over the past few years warning employers about the risks and pitfalls that lurk in attempting to act against an employee for work-related comments on social media. Not all online speech, however, is protected, as two recent cases illustrate.

In Ames v. Ohio Department of Rehabilitation & Correction (Ohio Ct. App. 10/28/14), a parole office posted the following on her personal Facebook page:

I’ll gimp into work tomorrow. I guess I could just shoot them all ... lol!

Yo! Thanks neighbor. I’ll gimp into work tomorrow. I guess I could just shoot them all … ARE YOU KIDDING ME? ‘MEANING I CAN’T CHASE THEM!’ OH MY GOD! YOU PEOPLE REALLY DO NEED A LIFE! LIKE NO LAW ENFORCEMENT OFFICER ‘EVER’ MADE THAT TYPE OF COMMENT. YOU MAKE ME LAUGH OUT LOUD!

Troubled by these comments, the ODRC sent Ames for three different independent medical examination, and ultimately terminated her. The appellate court dismissed her disability discrimination claim, concluding that: 1) the mere fact that an employer sends an employee for an IME does not mean that the employer regarded the employee as disabled; and 2) regardless, “posting a vulgar, threatening statement toward a co-worker under her supervision” is a legitimate, non-discriminatory reason to terminate.

Richmond District Neighborhood Center (NLRB 10/28/14) [pdf] concerned the following Facebook exchange between two teen center employees:

Let them do the numbers, and we’ll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food. I don’t feel like bein their bitch and making it all happy-friendly-middle school campy. Let’s do some cool shit, and let them figure out the money…. They dont appreciate shit. Thats why this year all I wanna do is shit on my own. have parties all year and not get the office people involved….

hahaha! Fuck em. field trips all the time to wherever the fuck we want!

When a co-worker sent screenshots of the conversation (which included a student), the teen center rescinded its re-employment offers to the two employees. The NLRB had little trouble concluding that these posts were unprotected insubordination, not protected concerted activity:

Callaghan and Moore’s lengthy exchange repeatedly described a wide variety of planned insubordination in specific detail. We are not presented here with brief comments that might be more easily explained away as a joke, or hyperbole divorced from any likelihood of implementation. The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.

From these two examples, we glean that, indeed, there exists a line between protected online speech and unprotected threats, harassment, or insubordination. The difficult task is figuring out where that line is, an issue that will continue to develop, and bears watching, as more employees take to the social-sphere to air workplace grievances.

The New Kid says thank you @rhettmiller — #NailedIt

One of the benefits of maintaining this very public forum is having the opportunity to share with you some personal insight into my family. For example, you know that my 6-year-old son deals with some life-long medical issues, and that my 8-year-old daughter plays rock music. Today is one of those days that I get to share some family stuff, this time of the insanely cool variety. So sit back and relax—no employment-law lessons. Today is a straight up rock-and-roll story.

My daughter’s favorite band is the Old 97’s. You can read the whole history here. Sunday night, my wife and I took Norah to see Rhett Miller, the band’s lead singer, perform a solo gig at the Music Box Supper Club. (Side note: if you’re anywhere near Cleveland, do yourself a favor and catch a show at the Music Box. Mike and Colleen built an amazing venue, with great sound, sight lines, and food; they deserve your business). Front row seats for the Hymans.

Norah’s third-grade class is learning how to write personal narratives. Her first story for the school year was all about going to see the Old 97’s in June and meeting Rhett backstage before the show. He was gracious and kind, and clearly made a big impression on a girl of her size.

Norah wanted to give Rhett a copy of her book at Sunday’s show, and asked if I could tweet Rhett to let him know. So I did. I didn’t get any response (nor did I expect one), and tried to temper Norah’s expectations about Rhett remembering her. But it’s hard to temper an 8-year-old.

There we are at the show, our table abutting the front of the stage, Norah no more than three feet from her idol. Did Rhett remember Norah? Of course he did. He spent his first moment talking to the crowd to say a personal hello to her (while making apologies for some of his songs’ more saltier language). And the show went on, Norah in her seat, right in front of Rhett, singing along to all of her Old 97’s favorites.

During the show, Rhett leaned forward and asked Norah if she knows Fireflies. For those who don’t know Rhett’s catalogue, Fireflies is a beautiful (if a tad biting) duet sung with a female. Historically, when Rhett performs this song live he brings someone from the audience up on stage to sing the female part. Needless to say, the song works much better if the person knows it. When Rhett asked Norah if she wanted to sing Fireflies with him, she had to decline, because she didn’t know it nearly well enough to sing it in front of a crowd. Rhett told her to practice, and they would sing together on his next visit to the Music Box.

And the show goes on. After dueting Over the Cliff with opening-act Jon Langford (whom I really enjoyed), Rhett noticed the similarities between that song and the next on his set list, Let’s Get Drunk & Get It On, so much so that he could not get into the song without confusing the two. He needed a “palate cleanser,” as he put it, and asked Norah for a request. She chose The New Kid, the song that started her Old 97’s obsession. Rhett enthusiastically launched into the song.

After finishing the first verse, and watching Norah belt away from her in front of him, Rhett leaned forward and asked if she wanted to come on stage and sing the rest of the song with him.

This is what happened next:

Rhett put it perfectly after Norah finished — #NailedIt! (Stick around to the end of the video to see Norah give Rhett the copy of her book, and thanks to Marie Popichak for capturing and sharing).

The show ends, and Rhett hands Norah the set list (which you Old 97’s/Rhett fans know is a thing and a big deal). And, sure as you know it, there is Fireflies, with “(NORAH?)” inked in right next to it.

Not only did Rhett remember meeting Norah in June, he pre-planned a duet with her!

Rhett, you are one of a kind. From the bottom of our hearts, thank you for caring enough to turn a special night for our little girl into an absolutely unforgettable one. You undeniably rock in all the ways that matter, and represent the hope that one can be both a celebrity and a good person.

We’ll see you next time you’re in town. Norah’s working on Fireflies, just in case.

@rhettmiller and one of the sweetest onstage moments ever. Norah requested New Kid & sang 2nd verse like a rockstar! pic.twitter.com/yje3ZN2lcd

— Kristie Gripp (@Tippy13) November 3, 2014

“I honestly bet you’re big down there.” SNL tackles workplace diversity training.

NBC does itself a disservice by running classic episodes of Saturday Night Live each week, because the old episodes merely reinforce that the new episodes are longer appointment viewing. But, this sketch on diversity training (spoofing some very bad VHS videos you hopefully didn't use during the last millennium) from this past week’s episode made me laugh pretty hard. Enjoy.

 

Ohio considers paid leave for quarantined employees

As just-back-from-Sierra-Leone Kaci Kickox continues to fight efforts to bind her to a mandatory 21-day Ebola quarantine, states around the country continue to figure out how to deal with these very new issues.

Ohio (which was Ebola ground-zero only a few weeks ago) has entered the fray with H.B. 647. The bill would:

• Provide paid leave to any employee unable to work because of a quarantine or placement in medical isolation.
• Prohibit an employer from requiring the employee to use paid time off in lieu of the statutory paid leave.
• Prohibit an employer from taking any adverse action against an employee who failed to report to work because of a quarantine or placement in isolation, or who has requested quarantine or isolation pay.
• Provide for both administrative and judicial remedies for aggrieved employees.

The bill has only just been introduced, and has not yet even been assigned to a committee. If any action is taken on this bill, I will pass it along.

In the meantime, employers need to be flexible with employees who have potentially been exposed to Ebola or other dangerous infectious diseases. If you send the employee home, do it with pay. Otherwise, you are inviting legislative fixes to what should be common-sense issues.

WIRTW #343 (the “trick or treat” edition)

True confession—I do not like Halloween. I never did. As a kid, I tolerated the holiday because it brought a bounty of candy. As I aged out of trick or treating, however, whatever soft feelings I had for the holiday devolved to hardened ire. The only good thing about Halloween is that it makes way for the Godfather I and II of holidays, Thanksgiving and Christmas. 

Here’s some stuff you need to know about Halloween and your workplace.  

• Employers Beware: Five Tips for Celebrating Halloween in the Workplace — via Employment Intelligence
• Halloween in the workplace? Bah! Humbug! — via Robin Shea’s Employment & Labor Insider
• 5 Tips For Your Office Halloween Party — via The Evil HR Lady, Suzanne Lucas, writing at Inc.com
• Top 5 fears workers have about their jobs — via Cleveland.com

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

Discrimination

• More Transgender Discrimination as Sex Discrimination — via Phil Miles’s Lawffice Space
• LGBT charges are rolling in, EEOC Commissioner says — via Robin Shea’s Employment & Labor Insider
• One-Armed Security Guard Wins ADA Case — via Minnesota Employer
• Employer must consider “job restructuring” if such restructuring would accommodate disabled employee without undue hardship — via Employment Law Matters
• EEOC is Challenging Some Corporate Wellness Programs as Violating the ADA — via Texas Employment Law Blog
• How Courts View Post-Employment Retaliation Claims — via Corporate Counsel
• OCR issues dear colleague letter on bullying on the basis of disability — via Understanding the ADA
• The Taller You Are, The More Your Income: We Re-Visit Appearance Bias — via Employment Discrimination Report

Social Media & Workplace Technology

• Social media blunders cost a chef and a chief their jobs — via Eric Meyer’s Employer Handbook Blog
• PGA President Fired For Calling Ian Poulter "Lil Girl" On Twitter — via Deadspin
• Is Ello something — or not? — via Real Lawyers Have Blogs
• Disruptive Technology in the Workplace: Employment Law Considerations — via Technology Company Counselor
• 5 best practices for lawfully monitoring your employees’ social media activities — via The Philadelphia Business Journal
• Do you know what apps your employees use? — via WSJ.com
• A Perk of BYOD Policies at Work — via Next Blog

HR & Employee Relations

• Is the Future of the Desk a Coffee Shop Table? — via Blogging4Jobs
• Bad bosses literally can make you sick, research finds — via NorthJersey.com
• Dazed and confused: Unemployment benefits OKed for Michigan medical marijuana users — via Employer Advocate
• Today in Small Business: When the Ebola Virus Touches a Business — via You’re the Boss Blog
• Say, What?! The 12 Worst Things An Intern Can Say At Work — via Workplace Diva
• Yes, You Really Do Need to Screen Temporary Holiday Employees — via TLNT
• Do Employers Have To Warn You Before Firing You? — via Evil Skippy at Work
• US Whistleblower Laws: What Employers Need to Know — via i-Sight Investigation Software Blog

Wage & Hour

• NBC Inks $6.4 Million Deal to Stem Intern Uprising — via Law.com
• The Supreme Court’s Recent Decision on the Taxation of Severance Payments — via Suits by Suits
• Wage and Hour Cases to Watch at the Supreme Court: Part 1--Integrity Staffing — via Wage & Hour Insights
• Lee v. Dynamex Operations: Defining “Employee” in Misclassification Context — via Impact Litigation Journal
• NCAA Sued For Wage Violations — via Impact Litigation Journal

Labor Relations

• NLRB Sinks Confidentiality Clause of “Titanic” Director James Cameron — via Matt Austin Labor Law
• Union Campaign Heats Up At B’more Jimmy Johns — via Labor Relations Today
• The NLRB―the new elephant in the room — via HR Hero Line

EEOC files historic lawsuit challenging biometric testing by employers

It’s no secret that health insurance costs are out of control. To help combat this surge, many employers have turned to biometric testing for their employees. Biometric testing is part of corporate wellness programs where employees measure certain levels, such as blood pressure and cholesterol, for breaks on insurance premiums under the Affordable Care Act.

If the Affordable Care Act expressly permits this testing, then why is the EEOC claiming that Honeywell’s biometric testing program violates the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act?

On Monday, the EEOC filed a lawsuit seeking a temporary restraining order declaring Honeywell’s biometric testing illegal. According to the EEOC’s lawsuit, ­Honeywell’s program creates up to $4,000 in penalties for employees unless they and their spouses take blood and medical tests that can identify smoking, diabetes, high blood pressure, obesity and other health problems. The Minneapolis Star Tribune quotes an EEOC attorney, who said, “Honeywell’s tests and threatened penalties go too far because they are not job-related and are not consistent with any business necessity…. They can only do that in ­situations where it’s ­voluntary for the employee to answer.”

For its part, Honeywell has called the lawsuit “frivolous”—

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace…. The incentives we provide are specifically sanctioned by two separate Federal statutes—HIPAA and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs…. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

Because the EEOC is seeking a TRO, I would expect this case to unfold quickly. I will keep everyone updated as this important story develops. Special thanks to Kate Bischoff for brining this to my attention.

Court of appeals decision highlights risk of (mis)classifying employees

I once handled a wage-and-hour investigation in which the employer, before retaining my services, hired an HR consultant to help classify its employees as exempt or non-exempt. The DOL, however, disagreed, and reclassified half of the company’s employees (with corresponding back pay awards for unpaid overtime for those employees moved from exempt to non-exempt).

FLSA exemptions are highly fact specific and highly subjective. One person’s exempt manager is another’s non-exempt clerk. Case in point? Little v. Belle Tire Distributors (6th Cir. 10/23/14) [pdf].

Little concerns a first assistant manager at a tire store. As a “manager,” the employer had the employee classified as exempt under both the executive and administrative exemptions. The employer’s written job description defined the first assistant manager position as requiring proficiency in “Professional Selling Skills,” “inventory control and pricing,” and “knowledge of location payroll control.” The job description further states that the employee have “necessary supervisory skills” and “managerial skills,” and be “fully knowledgeable” of “hiring and termination procedures.”

The court of appeals concluded that the employer’s determination that this employee was exempt was not dispositive, and sent the case back to the district court for trial on the issues of whether the employee qualified as exempt under either the executive or administrative exemption:

Belle Tire seeks to paint Little as influential in hiring and as actively leading employee training and other management tasks. Little, on the other hand, seeks to characterize himself as a salesman who provides clerical-type assistance to his store manager….

Though it is clear Little played some role in interviewing job candidates, preparing work schedules, and conducting training, questions remain concerning the exact nature of the work Little performed and the level of discretion that Little exercised. Such questions are suitable for a factfinder’s determination….

Although Little engages in office and non-manual tasks such as typing up the schedule and preparing purchase orders, Little testified that he spends eighty to ninety percent of his time engaged in sales duties. Time spent on a task is not the sole determinant of a primary duty, but the fact that Little spent the vast majority of his time on tasks he could not do concurrently with administrative tasks creates a genuine dispute as to whether his administrative responsibilities were his “primary duty.” Additionally, Little’s deposition—the most detailed account of his day-to-day activities—suggests that Little’s discretion was highly constrained.

The lesson here is not a happy one. No matter how reasonable or rational you think you are being in classifying employees, a court may second-guess you down the road. In close cases, err on the side of caution and classify as non-exempt. You will end up paying more overtime as you go, but will avoid the windfall (and related legal fees) if a court later re-classifies an employee or group or employees.

The times they are a changin’ for LGBT discrimination

Last week, the The U.S. Office of Special Counsel announced a landmark determination that the Department of the Army engaged in “frequent, pervasive and humiliating,” gender-identity discrimination against an Army software specialist who had transitioned from male to female.

According to a press release issued by the OSC, the employee

experienced a significant change in working conditions when the Army improperly restricted her restroom usage, repeatedly referred to her by her birth name and male pronouns, and excessively monitored her conversations with coworkers. In response, the Army agreed to provide training to correct and prevent future discrimination. The Army already had permitted Ms. Lusardi to use the restroom associated with her gender identity.

You can download the full decision here.

Congress has been slow to amend Title VII expressly to prohibit LGBT discrimination. Yet, courts, agencies, the White House and, now, the U.S. military, continue to fill in the gaps.

The time will come when it becomes per se illegal for all employers to discrimination against an employee’s sexual orientation or gender identity. Until that time, we will have to rely on courts’ creative solutions to fit these claims under Title VII’s general prohibitions against sexual stereotyping and sexual discrimination. Nevertheless, employers should not wait for Title VII to include LGBT as a protected class. Instead, employers can, and should, do right by all of their employees by adopting progressive anti-discrimination policies that make it clear that they are employers are inclusion for all employees, even if Title VII still permits discrimination against some.

Does social media hold the cure for your malingering, hooky playing employees?

In one of the better earlier episodes of The Office, the Assistant to the Regional Manager, Dwight Schrute, thinks that one of his co-workers is faking an illness to get out of work. So, he stakes out the employee’s house to investigate and uncover the truth.

 

According to a recent Harris Poll (h/t: Cleveland.com), figuring out if your employees are cheating on their sick leave is no longer as complicated as a stake out, and is only as far away as a few clicks of your mouse. According to the poll, nearly a quarter of employers have caught their employees lying on social media about being sick. Of those caught, a quarter were fired, while half were disciplined or reprimanded.

 

 

Three observations—

 

     1. If you think an employee is abusing sick leave or other time off, a little investigation on social media appears to go along way to ferreting out the truth. You no longer need to go the Dwight-Schrute route to determine if an employee is lying to you about the reason he or she isn’t at work. You should be adding social media to your quiver of investigatory tools. Otherwise, you could be missing a key (and easy) piece of the puzzle.

     2. The employment relationship is based on trust. Once that trust disintegrates, the relationship is almost certainly unsalvageable. I’m almost as shocked that only 25% of employers who have caught an employee lying about sick leave fired the offending employee, as I am that that another 25% appear to ignore the indiscretion completely. While I agree that we need better time-off policies in this country, it is still no excuse for lying.

     3. Then again, if an employee is so reckless (or senseless) as to tell an employer one thing, and then post the exact opposite on Facebook or Twitter an hour later, maybe I don’t want that employee working for me anyway. Just saying.

WIRTW #342 (the “family photo” edition)

Photo by Jenny Gildea Photography (who I cannot more highly recommend).

Here’s what I read this week:

Discrimination

• “How Can We Accommodate You?” — via Employment Discrimination Report
• Hearing Religious and Pregnancy Discrimination Cases Appeals to the Supreme Court — via The Emplawyerologist
• Employer Permitted to Use “After-Acquired” Evidence at Discrimination Trial — via Labor Employment Law Blog
• EEOC’s Current Enforcement Guidance on Pregnancy Discrimination — via The L•E•Jer
• I Quit! Constructive Discharge Serves as Substitute for Adverse Employment Action — via Texas Employment Law Update

Social Media & Workplace Technology

• Do you know your Klout Score? Social media and the hiring process — via Technology for HR
• Top 10 Technology Blunders for Employers — via Robin Shea’s Employment & Labor Insider
• A Perk of BYOD Policies at Work — via Molly DiBianca’s Delaware Employment Law Blog

HR & Employee Relations

• The Ebola Scare: 10 Workplace Issues HR Should Be Ready For — via TLNT
• Ebola Alert: OSHA Releases Guidance on Employer and Employee Obligations — via Troutman Sanders HR Law Matters
• Fired Over Fears of Ebola: What you need to know. — via Texas Employment Law Blog
• 31% Of Sick Employees Think Boss Appreciates Their Presenteeism — via Workplace Diva
• Bully For You? Not When It Comes To Workplace Bullying — via Dan Schwartz’s Connecticut Employment Law Blog
• 12 Point Action Plan—Handling Violence in The Workplace — via HR Daily Advisor
• When the employer goes too far: The Jimmy John’s Non-Compete — via Smooth Transitions
• Unlimited Vacation Policies Suck! — via The Tim Sackett Project

Wage & Hour

• Late Payment of Wages Constitutes Non-Payment of Wages, Subjecting Employer to Liquidated Damages Under FLSA — via Overtime Law Blog
• You’d think emailing FMLA paperwork would be ok. Yeah, you’d think that. — via Eric Meyer’s Employer Handbook Blog
• Does FMLA Leave and Short-Term Disability Leave Run Concurrently? — via Wisconsin Employment & Labor Law Blog
• The Affordable Care Act—Countdown to Compliance for Employers, Week 10: What’s an Employer to Do (with Marketplace Notices)? — via Employment Matters Blog

Labor Relations

• ALJs Signal That D.R. Horton Is Alive And Well — via Labor Relations Today
• NLRB Modifies Standard Remedial Notice to Include QR Code and Link to Board’s Web Site — via Pennsylvania Labor and Employment Blog
• Employers are Often Surprised Who Can Vote in Union Elections — via Matt Austin Labor Law
• Ebola and Potential Labor Relations Issues — via Labor Relations Update