A New Year’s accommodation story

We spent part of our winter vacation on a quick family trip to Washington D.C.  The Old 97’s, my 8-year-old daughter’s favorite band, was playing two nights, and we decided to pack up the car and make the drive to our nation’s capital to catch the less raucous New Year’s Eve Eve show (and to see some of the of the sights).

My younger child, Donovan, who’s 6, has Celiac Disease. Traveling with someone who has a food allergy is tricky enough. When that same person is your typical 6-year-old picky eater, it’s darn near impossible.

Before we left home, I called the concert venue, where we planned to eat dinner during the opening act, to ask about gluten-free options for kids. They assured me that the wait staff and chefs were well versed in gluten-free preparations. For example, they could serve a bun-less cheeseburger (not his favorite, but he’d manage). When they told me that they had a dedicated fryer for french fries, I knew we’d be fine. He loves fries, but most restaurants can’t accommodate him because of the risk of cross contamination from shared fryers.

When we sat down for dinner, however, the server told us that the downstairs concert hall has a different, more limited menu then the upstairs restaurant, and they they don’t serve a kids menu or fries downstairs. Uh oh! I explained my son’s dietary issues, and that I had called ahead. She explained that they were really crowded and could not make any promises, but that she would see what she could do. No more than 5 minutes later she returned with a thumbs up, letting us know they a bun-less kids cheeseburger with gluten-free french fries would be on their way. Crisis averted.

Employers, there is a lesson to be learned from how the Hamilton handled our issue. It would have been easy for it to stick to its, “We’re too busy” story, leaving Donovan with nothing to eat. Yet, given how simple it was for them to take an extra minute and go upstairs for the burger and fries, I would have been offended had they said no.

Don’t  take the easy way out with your employees when they ask for accommodations for a disability, religion, or other protected reason. Even if you are legally right (and, the odds are good that you won’t be), you will leave the employee feeling offended and upset. Those feelings breed discontent, which, in turn, breed lawsuits. 

WIRTW #349 (the “Merry Christmas and Happy New Year, y’all” edition)

With the end of the year drawing nigh, today’s post will be my last of 2014 (barring any hot-off-the-presses breaking news). I wish all of my readers a joyous holiday season (whatever your December celebration of choice), and a happy New Year. I’ll see everyone back in 2015.

Here’s what I read this week:

Discrimination

• Santa Sued for Disability Discrimination Due to Reindeer Harassment — via Bolek Besser Glesius, LLC
• Ebola discrimination in your workplace, what the Department of Justice wants you to know. — via Eric Meyer’s The Employer Handbook Blog
• Do You Hear What I Hear? Accent Discrimination in the Workplace. — via Fitzpatrick on Employment Law
• The GOP Effect on the EEOC — via HRE Online
• Is Retaliation The New Discrimination?? — via Employment Law Lookout
• Anti-discrimination training: How to harm when you’re trying to help — via HR Cafe
• Six Geese a Laying … And How Not to Get Your Goose Cooked With a Pregnancy Discrimination Claim — via All in a Day’s Work
• Is alcoholism considered a disability under the Americans with Disabilities Act (ADA)? — via Employment Law Bits

Social Media & Workplace Technology

• Employee Personal Information – The Gift You Don’t Want to Give this Christmas — via EntertainHR
• What We Can Learn from the Biggest Corporate Hacks — via Lifehacker
• Jets Owner “Accidentally” Favorites Tweet Calling For GM's Firing — via Deadspin
• Time for Employers to Consider Social Media Background Checks? — via employeescreenIQ Blog

HR & Employee Relations

• The Top Five Signs you Need an HR Person — via Blogging4Jobs
• Employment law advice you should never follow — via Robin Shea’s Employment & Labor Insider
• How Employers Do Employment Background Checks — via Evil HR Lady, Suzanne Lucas
• FCRA Class Action Lawsuits: What Employers Need to Know — via Trepanier MacGillis Battina
• Millennials Seek Flexibility at Work — via Minnesota Labor & Employment Law Blog
• Guns In The Workplace Versus Employer’s Property Rights — via Ohio HR Law
• Is Full-Time Telecommuting a Good or Bad Thing? — via Technologist

Wage & Hour

• PA Supreme Court Affirms Nine-Figure Judgment Against Wal-Mart — via Phil Miles’s Lawffice Space
• Wage and Hour Considerations During The Holiday Season — via Overtime Lawyer Blog
• Yes, Employers Can Still Have Unpaid Interns (Under the Right Circumstances) — via Wage & Hour Insights
• FMLA Leave for Headache Effectively Converts Full-Time Position into Part-Time Position; Employers' Shrieks Heard Across the Country — via Jeff Nowak’s FMLA Insights

Labor Relations

• NLRB and labor law roundup — via Walter Olson’s Overlawyered
• NLRB Delivers Freshly Wrapped Gift to Trumka — via Labor Pains
• NLRB helps unions by speeding elections; “ambush elections” rule to be fought by business groups — via The Business Journals
• NLRB: Employers Must Include Employees’ Phone Numbers, Email Addresses in Voter Lists — via Joe’s HR and Benefits Blog
• Alt-Labor — via Labor Relations Institute
• National Labor Relations Board Narrows Arbitral Deferral Standards ​— via Labor Relations Today

The 12 Days of Employment Law Christmas (2014)

For the past two Noels, I published “The 12 Days of Employment Law Christmas.” As this has become a year-end tradition at the blog, I’m sharing it again (with updated links). If you’re feeling brave, post a video of yourself singing along.

Have a great end to your 2014, and happy holidays, regardless of your holiday of choice.

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(Some musical accompaniment)

On the first day of Christmas,
my employment lawyer gave to me
a lawsuit for my company.

On the second day of Christmas,
my employment lawyer gave to me
2 trade secrets,
and a lawsuit for my company.

On the third day of Christmas,
my employment lawyer gave to me
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fourth day of Christmas,
my employment lawyer gave to me
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the fifth day of Christmas,
my employment lawyer gave to me
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the sixth day of Christmas,
my employment lawyer gave to me
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the seventh day of Christmas,
my employment lawyer gave to me
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eighth day of Christmas,
my employment lawyer gave to me 
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the ninth day of Christmas,
my employment lawyer gave to me
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the tenth day of Christmas,
my employment lawyer gave to me
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the eleventh day of Christmas,
my employment lawyer gave to me
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

On the twelfth day of Christmas,
my employment lawyer gave to me
12 disabled workers,
11 personnel manuals,
10 labor campaigns,
9 ladies lactating,
8 discriminating managers,
7 sex harassers,
6 guys-a-lying,
5 Facebook firings,
4 collective actions,
3 FMLA notices,
2 trade secrets,
and a lawsuit for my company.

Merry Christmas!

Feds impose LGBT affirmative action on federal contractors

If you are a federal contractor of subcontractor, in four months you will have new affirmative action obligations relating to sexual orientation and gender identity.

According to a Final Rule issued last week by the Office of Federal Contract Compliance Programs, beginning  April 5, 2015, federal contractors and subcontractors must include federal contractors and subcontractors must include sexual orientation and gender identity in their affirmative action plans.

According to the Rule, which implements Executive Order 13762, federal contractors and subcontractors must:

• Take affirmative action to ensure that applicants are employed, and employees are treated, without regard to their sexual orientation and gender identity.
• Include sexual orientation and gender identity as prohibited bases of discrimination in the Equal Opportunity Clause in all federal contracts, subcontracts, and purchase orders.
• Update all solicitations or advertisements for employment to state that the contractor considers all applicants for employment without regard to any of the protected bases, which now must include sexual orientation and gender identity.
• Post updated notices in the workplace for applicants and employees, which state that sexual orientation and gender identity are protected traits in employment.

Notably, and different than affirmative action for other protected traits, the Rule does not require contractors to set placement goals on the bases of sexual orientation or gender identity, nor does it require contractors to collect and analyze any data on these bases (although the OFCCP will consider statistical and non-statistical data in determining whether contractors have met their nondiscrimination obligations).

While Congress continues to drag it feet  on ENDA, the Obama Administration continues to do what it can to extend equal employment opportunity for all.

Adverse actions come in all shapes and sizes

Consider these facts, taken from Kudla v. Olympic Steel (Ohio Ct. App. 11/20/14). Employee, age 65, is fired from his job as part of a corporate reorganization. Employer has a change of heart, however, and rescinds the termination after Employee lawyers up and alleges age discrimination. He claimed, however, that his employment following his rehire was substantively different, including a forced move out of his prior office into a cubicle, the exclusion from meetings, and the placement on surveillance.

Based on these facts, the court of appeals had little problem deciding that the trial court should have allowed Kudla to present his claim to a jury:

He contends that he was essentially demoted and cites in support of his contention, for example, that many of his responsibilities, except clerical ones, were reassigned to his younger coworkers, and that he was moved out of his office into a cubicle.

Olympic Steel, on the other hand, denies Kudla's demotion claim and cites that his pay was not reduced, his job title did not change, and he still performed important work for the company. The company also contends that putting Kudla in a cubicle was a temporary situation necessitated by the reorganization of the human resources department; as part of the reorganization, Kudla no longer needed to discuss personal, confidential information with employees and managers and, thus, he did not need an office….

[W]e find that a genuine issue of material fact exists as to whether Kudla did suffer an adverse employment action.

It is not impossible to terminate, or otherwise take an adverse action against, an employee on the heels of protected activity. Moreover, something as innocuous as moving an employee out of his office could be deemed sufficiently “adverse” to support a retaliation claim.

Bad employees cannot bulletproof themselves merely by complaining about discrimination. However, you must have a rock-solid legitimate non-retaliatory and non-pretextual reason for your action to survive the lawsuit that is likely to follow.

The NLRB was a busy beaver last week

Late last week, the NLRB made huge news. In Purple Communications, the NLRB ruled that employees have a right to use their employers’ email systems during non-working time to communicate about union issues. For more on this case, I suggest checking out the write-ups by my friends Dan Schwartz and Seth Borden, both of whom did an excellent job summarizing the decision and its import.

In response to Purple Communications, employers should be reviewing, and, if necessary, revising, their email and electronic-communications policies to ensure that they do not prohibit employees from engaging in conversations about union issues during non-working time.

To cap its week, the Board next issued its rules for ambush elections in representation proceedings.

While the email ruling is the sexier of the two issues, the election rules will likely have the more significant impact on your business. In fact, I agree with Eric Meyer that Purple Communications is not that big of deal. Yes, it is troubling that the NLRB is ignoring the property rights employers have in their own email systems. But, in reality, I wonder if employees are using their company’s email systems for this purpose. There are so many other modes of communications available to employees. They can text each other. They can message on Facebook. The fact is that unions are increasingly more technologically sophisticated in their organizing tactics, and I wonder how many are relying on corporate email systems for communication. Moreover, if employees are using your email systems for organizing, then you have the right and the ability to read those emails. If you can have access to unions’ organizing secret sauce, is this access all that bad for employers.

In response to the election rules, employers need to adopt what I call the “TEAM” response to union organizing:

• Train supervisors
• Educate employees
• Accessibility
• Modernize policies

You can read more about this philosophy of union avoidance here. The point is that once a union files its petition seeking a representation election, you will have scant time to respond. You will not have time to launch a full-blown counter-campaign. If your supervisors do not know how to spot potential organizing before it becomes an issues, and if you don’t have a game plan in place long before its needed, you will have a difficult, if not impossible, time engaging in a meaningful response to the union. If you can’t effectively communicate your message to your employees, you will have a difficult time convincing those employees to vote against the union.

WIRTW #348 (the “blackheart” edition)

Twice a year, my kids’ school invites any students in grades K – 5 who take private music lessons to perform in a recital for the entire Lower School. On Thursday, 16 students displayed their musical talents. We heard Christmas carols, standards, and classical pieces. And then Norah took the stage with Joan Jett’s Crimson and Clover:

If you're in Cleveland, you can see Norah perform this (and other Joan Jett songs) with her full band on Sunday, January 18 and Saturday, January 24, at the Music Box Supper Club.

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Have you voted yet for this year’s ABA Blawg 100? You have until Dec. 19 to cast your vote here.

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Here’s what I read this week:

Discrimination

• The “Association” Game: How a Spouse’s Cancer May be Covered by the ADA — via Dan Schwartz’s Connecticut Employment Law Blog
• Role reversal! EEOC must disclose its own background check policy to the employer it's suing — via Eric Meyer’s The Employer Handbook Blog
• ENDA Getting a Turbocharge — via Wisconsin Employment & Labor Law Blog
• What Not to Do If an Employee Requests an Accommodation — via Blogging4Jobs
• White People and Political Correctness — via Fistful of Talent
• Is It Religious Discrimination To Have A Christmas Tree At Work? — via Evil Skippy at Work
• The Origins of Sexual Harassment — via Workplace Prof Blog
• Is a dumb joke sexual harassment? — via Evil HR Lady, Suzanne Lucas
• Expand pregnancy-bias law to include accommodation rights? — via Walter Olson’s Overlawyered
• Does Title VII Prohibit Sexual Orientation/Gender Identity Discrmination? Definitely, Maybe. — via The Emplawyerologist

Social Media & Workplace Technology

• Instagram is now bigger than Twitter — via The Verge
• Lawyers Left to their Own Devices — via Clio

HR & Employee Relations

• Man has 8 minutes to convince prostitutes to quit in new reality show — via Entertainment Weekly’s Ausiello Files
• FTC and EEOC Publish Background Check Guide for Job Applicants — via EmployeeScreenIQ Blog
• Why would I want to offer a severance benefit to a terminated employee? — via Employment Law Bits
• 10 oddest Christmas and holiday gifts given by co-workers, says Harris Poll — via Cleveland.com
• Can you keep your HR lady from moonlighting as an exotic dancer? — via Mike Haberman’s Omega HR Solutions

Wage & Hour

• The Changing Face of Paid-Time-Off ERC Insights Blog
• Buccaneers Will Stop Using Unpaid Homeless People To Sell Beer — via Deadspin
• States With Pro-Employee Laws: No Use-It-Or-Lose-It Vacation — via Donna Ballman’s Screw You Guys, I’m Going Home
• When an Employee Falls Off a Ladder at Work, is His Absence Covered by FMLA? An Employer's Misstep Discussed… — via Jeff Nowak’s FMLA Insights
• Unanimous Supreme Court Rules Employer Need Not Pay for Worker Security Screenings: Integrity Staffing Solutions, Inc. v. Busk— via Wage & Hour Insights

Labor Relations

• NLRB Again Attempts to Invalidate Mandatory Arbitration Clauses for Employment Claims — via Employment Matters Blog
• Senate Confirms New Member of the National Labor Relations Board — via TLNT
• NLRB: Mercedes Violated Labor Law by Restricting Distribution of Union Material — via Joe’s HR and Benefits Blog
• Board ALJ Hits Walmart With ULPs — via Labor Relations Today

Even Santa needs an employee handbook

The Christmas season is upon us, which means that the elves are hard at work deep inside the confines of the North Pole’s buildings preparing gifts to load onto Santa’s sleight for his Yuletide trip around the globe. Pop culture, such as Rudolph the Red-Nosed Reindeer and Elf, portrays Santa’s workshop as a happy, jolly place, where the elves gleefully craft toys all hours of the day and night, with not even a whisper of discontent.

Someone (or, more accurately, some elf), has squealed.

The North Pole Employee Handbook: A Guide to Policies, Rules, Regulations and Daily Operations for the Worker at North Pole Industries was allegedly found in “the vast confines of a Newark warehouse used to store elf clothing for Christmas displays.” It appears that all is not candy and carols at the North Pole.

For example:

• Employees are called “cogs.”
• Humans are not discriminated against in employment, as long as they are nimble, quick, and speak in high-pitched voices.
• Cogs receive unpaid holidays for most of January, all of February – September, and half of October. With no other industry to speak of in the North Pole, however, other income-earning opportunities must be scarce.
• Human employees must wear fake elf ears “as a gesture of solidarity with” their “fellow employees.”
• Cogs must sign a non-competition agreement as a condition of employment. (I guess that job at Mattel is going to have to wait.)
• Discipline can include weeks of work without pay.
• Cogs receive the generous allotment of one five minute break and one 11.5 minute lunch break for every 11 hours worked.

Other topics covered include the dental plan (administered by Herbie), how to participate in reindeer games, and what the 12 days of Christmas mean to you. Needless to say, Santa does not appear to be one to be trifled with. Then again, if he knows when all of the world’s kids have been naughty or nice, it stands to reason that he keeps a pretty tight grip on his employees. And, if you think Santa is a pain, the handbook makes it clear that the HR Director, Mrs. Claus, goes without physical attention from Santa during peak production times and can get a tad prickly as a result.

If you’re looking for a good holiday gift for that special HR person in your life, I strongly recommend The North Pole Employee Handbook.

Also, don’t forget after January 1 to take a look at your own employee handbook, to determine if any policies need to be updated or added.

#SCOTUS unanimously holds that post-work security checks are unpaid

Integrity Staffing Solutions v. Busk asks the question of whether the FLSA entitles hourly employees to be paid for post-shift time spent undergoing mandatory security screenings. The case was brought by two employees of a warehousing company with employee theft issues. To combat the problem, the company implemented mandatory (and time consuming, but unpaid) post-shift security checks.

When I wrote about this case following oral argument, I commented that “I would be surprised … if the employees walk away with a win. This case will hinge on whether the security screenings are key to the nature of the employment…. [T]he employer has the better of this agreement.”

I love it when I’m right.

Yesterday, the Court handed employers a unanimous victory (opinion [pdf] here):

The security screenings at issue here are noncompensable postliminary activities. To begin with, the screenings were not the “principal activity or activities which [the] employee is employed to perform.” Integrity Staffing did not employ its workers to undergo security screenings, but to retrieve products from warehouse shelves and package those products for shipment to Amazon customers.

The security screenings also were not “integral and indispensable” to the employees’ duties as warehouse workers…. The screenings were not an intrinsic element of retrieving products from warehouse shelves or packaging them for shipment. And Integrity Staffing could have eliminated the screenings altogether without impairing the employees’ ability to complete their work.

Shortly after the Court delivered its opinion, I read the following tweet:

#SCOTUS OKs #WageTheft at Amazon http://t.co/DvSuWmLEqO

— N. William Metke (@metkelaw) December 9, 2014

While I understand that employee advocates are trying to make a point by using the phrase, “wage theft,” their continued use of this misnomer does their cause a disservice. It is not wage theft if a court concludes that time is not compensable. In fact, it’s the opposite of wage theft. Labeling every instance that an employer does not pay an employee as “wage theft” waters down the plight of the minimum-wage worker (which, I understand, is the point of labor’s wage-and-hour efforts). If you want us to take you seriously, you can’t cry thief every time you see an employer carrying a stack of pay envelopes.

EEOC 0-2 on severance-agreement lawsuits … but does it matter?

Recall that in October, a Chicago federal court dismissed a lawsuit filed by the EEOC against CVS, claiming that the pharmacy retailer’s severance agreements violated Title VII by employing allegedly retaliatory language. That court, however, failed to reach the merits of the case, instead dismissing the EEOC’s claims on procedural grounds (the agency’s failure to engage in pre-suit conciliation), thereby depriving employers guidance on whether certain garden-variety provisions in employment agreements violate Title VII’s anti-retaliation provisions. I held out hope that the practical guidance employers seek on this issue would come from a similar lawsuit pending in Colorado.

Last week, a Denver federal court dismissed that other EEOC severance-agreement-as-retaliation lawsuit. Like the earlier CVS dismissal, however, the dismissal in EEOC v. CollegeAmerica Denver was on procedural grounds, and offers little practical import for employers moving forward on this important issue.

Perhaps if there is any solace for employers looking to sue separation agreements to halt future litigation, and not to buy a future lawsuit by the EEOC, employers can look to footnote 3 in the EEOC v. CVS decision:

The “covenant not to sue” provision prohibits an employee from “initat[ing] or fil[ing] … a complaint or proceeding asserting any of the Released Claims.” The general release of claims is set out in ¶ 7 of the Agreement, but that section also includes the caveat that the release does not limit “any rights that the Employee cannot lawfully waive.” However, there is a specific carve out for an employee’s “right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws”; and further provides, “nor shall this Agreement prohibit [the employee] from cooperating with any such agency in its investigation.” … The verb participate is defined as “to be involved with others in doing something” and “to take part in an activity … with others.” http://www.merriam-webster.com/dictionary/participate. It is not reasonable to construe “the right to participate in a proceeding with any appropriate federal … agency,” to exclude the right of the employee from filing an EEOC charge. And, even if the Separation Agreement explicitly banned filing charges, those provisions would be unenforceable and could not constitute resistance to the Act.

In other words, the CVS court, albeit in dicta, believes that the EEOC is chasing an unsupportable claim by arguing that covenants not to file charges violate Title VII’s prohibitions on retaliation.

Employers, however, should not lull themselves into a false sense of security. Neither employer won either of these cases on the merits. For whatever reason, this issue is on the agency’s radar, and it will likely seek another case to prove its point regarding these agreements.

For now, the prudent course of action is to make sure that your agreements clearly and unambiguously, in a provision separate and distinct from the release, waiver, and covenant not to sue, state that employees retain their federally protected rights. I am using something like the following:

Nothing in this Agreement is intended to, or shall, interfere with Employee’s rights under federal, state, or local civil rights or employment discrimination laws to file or otherwise institute a charge of discrimination, to participate in a proceeding with any appropriate federal, state, or local government agency enforcing discrimination laws, or to cooperate with any such agency in its investigation, none of which shall constitute a breach of any of the provisions of this Agreement. Employee shall not, however, be entitled to any relief, recovery, or monies in connection with any such brought against any of the Released Parties, regardless of who filed or initiated any such complaint, charge, or proceeding.

1.2 million reasons to fight harassment

According to an EEOC press release, a Wyoming federal judge has approved a $1.2 million settlement with three well-servicing companies on behalf of a dozen employees who claimed that they suffered regular and repeated racially derogatory comments and jokes:

Employees regularly used terms like “wetback” and “beaner” to refer to Hispanic employees, “wagon burner” to refer to Native American employees, and the “N-word” to refer to black employees…. According to the EEOC’s amended complaint, minority employees on the rigs regularly heard racist terms … such as “n----r-rigging” and telling employees to “n----r a pipe down” were also common.

Said EEOC General Counsel David Lopez, “This type of outrageous discrimination sadly still exists. Employers in the oil and gas industry should heed this settlement and renew their efforts to ensure that employees are treated equally regardless of race or national origin.” EEOC Regional Attorney Mary Jo O’Neill added, “The type of blatant racist conduct alleged in this case has no place in the workplace. We believe that our lawsuit and the significant relief obtained in this settlement will send the message, not only to the defendants, but to the entire industry that the EEOC will not this kind of misconduct - or retaliation for complaining about it.”

Over the past couple of weeks, our country has been hyper-focused on race. It’s pathetic that employees still have to suffer workplaces with any degree of racism. While I believe that not every mishandled situation is because of race, this EEOC settlement shows that we still have a ways to go with race relations, and employers that shirk or ignore their responsibilities in this regard do so at their peril.

WIRTW #347 (the “bad santa” edition)

A big thank you to NPR’s Yuki Noguchi, who interviewed me for a story on office holiday parties gone badly, which ran on Wednesday’s Morning Edition. You can listen here:

I love my money-quote as the story’s main call-out. I should emboss it on my business cards.

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Have you voted yet for this year’s ABA Blawg 100? You have until Dec. 19 to cast your vote here. (And a hearty and heart-felt thank you to Casey Sipe for the kind words in nominating me this year).

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Here’s what I read this week (and last week):

Discrimination

• Cancer and the Workplace: Tips for Employers and A Thanksgiving to Remember: When Cancer Strikes — via Dan Schwartz’s Connecticut Employment Law Blog
• Do you have a “super” anti-harassment contract with your employees? — via Eric Meyer’s The Employer Handbook Blog
• Accommodating service animals in the workplace — via HR Hero Line
• “Oh Wow, You Look So Pretty I Can’t Even Concentrate” (Part II) — via Employment Discrimination Report
• Sexual Harassment Investigations — via Employment Essentials
• The EEOC and wellness programs: coming home to roost? — via Michigan Employment Law Connection
• EEOC promises guidance on wellness programs in February — via Robin Shea’s Employment & Labor Insider

Social Media & Workplace Technology

• Issue of Threats via Facebook Heads to the Supreme Court — via Molly DiBianca’s Delaware Employment Law Blog
• Googling Candidates: Ray Rice Version — via The HR Capitalist, Kris Dunn
• The Key to Managing Cyber Monday: Just Be Generous With Employees — via TLNT
• Will “Facebook at Work” be a LinkedIn Killer? — via The Tim Sackett Project
• Fitbit Data May Become Evidence in the Courtroom — via Ride The Lightning
• The Newest Field of E-Discovery: You — via Above the Law
• Is Your Company on Instagram? 3 Things GCs Should Watch For — via In House

HR & Employee Relations

• The One Where Evil HR Lady Gets Fired — via Evil HR Lady, Suzanne Lucas
• Are old ways of treating employees coming back? — via Mike Haberman’s Omega HR Solutions
• News Flash: My Background Check and I Am Boring — via employeescreenIQ Blog
• Disgruntled Employee’s Alleged Parting Shot Leads to Federal Indictment — via Suits by Suits
• Ten Actions You Can Take Now to Protect Your Company’s Trade Secrets – Action Three: Create a Culture of Confidentiality — via netWORKed Lawyers
• Doggy Day Care Chain Makes Pet Sitters Sign Noncompetes To Protect “Trade Secrets” — via Huffington Post
• I Want it Now: Entitlement in the Workplace — via HR Schoolhouse
• Unconscionable Employment Arbitration Agreements — via Phil Miles’s Lawffice Space

Wage & Hour

• Wage Theft Costs American Workers as Much as $50 Billion a Year — via Texas Employment Law Blog
• Report: Buccaneers Employ Indentured Servants As Concessions Workers — via Deadspin
• No FLSA Overtime Recovery For What Employer “Should Have” Paid — via Wage and Hour Laws Blog
• Avoid Being the Next Unpaid Intern Headline — via Wage & Hour Defense Institute
• FLSA Rules For Exempt Employees During Snow Days — via Minnesota Employer
• Happy Thanksgiving from my Lovable FMLA Abuser, Albuquerque Turkey — via Jeff Nowak’s FMLA Insights

Labor Relations

• 2014 Union Win Rates Increase Over Same Period in 2013 — via Matt Austin Labor Law
• Board ALJ Hits Phillips 66 For Media Gag Policy — via Labor Relations Today
• Franchise arrangements pose legal problem for NLRB’s proposed joint-employer standard — via Ohio HR Law
• NLRB General Counsel on Joint Employment: “The More (Employers) The Merrier” — via The Emplawyerologist
• Facebook Bus Drivers Join Teamsters — via Labor Relations Today

Reading the #SCOTUS tea leaves: Young v. UPS and pregnancy accommodations

Yesterday, the Supreme Court heard oral argument in Young v. UPS, which will decide whether Title VII requires an employer to accommodate pregnant workers the same as non-pregnant workers similar in their inability to work.

UPS required Peggy Young to be able to lift up to 70 pounds as part of her job as a package delivery driver. After she became pregnant, her doctor limited her lifting. Ms. Young requested that UPS move her to a light duty assignment. UPS’s collective bargaining agreement allowed an employee to work a light duty assignment only because of an “on-the job” injury or when “disabled” under the ADA. Because Ms. Young did not meet either of these categories UPS denied her request.

Ms. Young’s lawsuit argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree it accommodated a disabled employee. The 4th Circuit disagreed, finding that UPS’s policies did not treat pregnant workers less favorably, but the same as any other worker who did not meet the specific requirements for light duty under the CBA. 

The case may hinge on where the justices fall on the right comparator for UPS’s pregnant workers. Is it those employees who are ADA-disabled or otherwise injured on-the-job, whom UPS accommodates, or those non-ADA employees injured off-the-job, whom UPS does not accommodate.

As one would expect, the Justices appear to be split down ideological (maybe gender) lines, and, as is often the case, Justice Kennedy may be the key that will unlock this issue. He, however, was relatively quiet during the argument, only asking a handful of questions, which failed to shed any light on his thought process. Truth be told, it was a very curious argument, and the case, at least based on the Justice’s queries, is not easily predictable.

I am hopeful that the court will side with working parents and rule in favor of the employee in this case. A ruling for UPS would, I fear, promote the unequal treatment of pregnant workers, which is anathema to the spirit, if not the letter, of the Pregnancy Discrimination Act. No employer should be allowed to act as if it is exempt from the law.

A PDF of the compete oral argument transcript is available here.

Let’s all strive to be a little more flexible

Two weeks ago I had no choice but to take my 8-year-old daughter to a hearing. My wife was out of town for work, and Norah was home from school sick with a fever. So, we packed up her iPod and a Harry Potter book, and we drove down to the Industrial Commission. We had a great morning. We stopped for breakfast at Starbucks and talked—about school, her friends, and life in general. In the back of my mind, however, I was a bit on edge, as I had no idea how the hearing officer would react to an unplanned bring-your-daughter-to-work day.

As it turns out, my edge was for naught. The hearing officer could not have been cooler. She welcomed Norah to the hearing room with open arms, and complimented her on our way out on how well she behaved (as if there was any doubt). In fact, she was so cool that she noted “Miss Hyman” as having made an appearance for the Employer in her written opinion.

Compare my story to that of an attorney, who, having given birth, asked a Department of Justice Immigration Judge to continue a hearing. Amazingly, that judge refused. Or, consider this example from my past of a lawyer who refused to agree to a continuance while my son was in the hospital.

What’s the lesson here? Career and life don’t always get along. Yet, the meaning of “working time” in this country is changing. Technology has made it much easier for employees to work anywhere at any time. The law, however, is traditionally slow to react. Last month, the 7th Circuit held that regular attendance at work is an essential function of most jobs (even in the face of the defendant-employer’s “Work at Home” policy), and, next year, the 6th Circuit will decide the issue of telecommuting as an ADA reasonable accommodation.

Just because the law is slow to react to this paradigm shift in the definition of “work” does not mean that you should avoid flexible work policies for your employees. Employers that can adapt to the shifting needs of their employees, and their ability to work outside the four walls of the office and the traditional 9-to-5 hours, will have a leg up on attracting and retaining talent. Isn’t that the best reason to be flexible with your workers?

Oh, and in case you’re curious, Norah’s legal career is off to a rousing start. She’s 1-0. She’ll have a tough when she grows up between lawyer or rock star.

Federal court holds that Title VII does not protect the transgendered

LGBT rights continue to dominate headlines. Last month, the 6th Circuit became the first federal appellate court to uphold a state-law same-sex marriage ban, teeing up a likely showdown in the Supreme Court sometime next year. In September, the EEOC filed its first two lawsuits alleging sex discrimination on behalf of transgender employees (here and here).

Now, a federal court in Texas has expressly held that Title VII’s prohibition against sex discrimination does not extend to a transgender employee. Eure v. The Sage Corp. (W.D. Tex. 11/19/14) (h/t: Eric Meyer) involves a truck-driving instructor born a female but who presents as a male.  Eure alleged that her employer’s National Project Director, upon seeing her with a student, said, “What is that and who hired that,” adding that Sage did not hire “cross genders.”

The court, however, dismissed Eure’s sex-discrimination claim, concluding that Title VII’s prohibition against sex discrimination does not cover transgender employees.

In some cases, the plaintiffs bringing successful sex stereotyping claims are transgender people, arguing that the discrimination that they have suffered is because their coworkers perceived their behavior or appearance as not “masculine or feminine enough.” However, courts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity…. [D]iscrimination based on transgender status is [not] per se gender stereotyping actionable under Title VII.

What lessons can we learn from this case? While many courts have extended Title VII’s protections to address sexual orientation and gender identity based on “sex stereotyping” (i.e., an employee’s failure to conform to traditional male or female gender roles), this issue is far from settled. Because the issue is not clear, we not-so-patiently wait for Congress to step in and address the issue by amending Title VII to make this coverage clear and unambiguous. In the meantime, you, as an employer, are free to decide the issue for your own workplace by drafting (and, more importantly, enforcing) policies of inclusion for LGBT employees.

Feds say you can't force high-cost employees onto Health Care Exchange

Do you have an employee with a high-cost medical condition? For example, an employee with hemophilia could incur hundreds of thousands or dollars or more in medical costs per year. That one employee could be catastrophic for the overall cost of your company’s group health plan. As a result, many employers are taking advantage of Obamacare’s health-care exchanges by paying these employees to secure their own private medical insurance.

This practice, however, may be changing, and it’s not for the better. According to TLNT, the Departments of Labor, Health and Human Services, and the Treasury have jointly warned employers not to dump high-cost employees from group health plans:

As employers try to minimize expenses under the health law, the Obama Administration has warned them against paying high-cost workers to leave the company medical plan and buy coverage elsewhere. Such a move would unlawfully discriminate against employees based on their health status….

The Affordable Care Act requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness. Because most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. That’s far more than the $10,000 or so it might give an employee to pay for an exchange plan’s premiums….

The Affordable Care Act itself doesn’t block companies from paying sick workers to find coverage elsewhere…. But other laws do, including the Health Insurance Portability and Accountability Act and the Public Health Service Act, according to three federal agencies. Specifically, paying a sick worker to leave the company plan violates those statutes’ restrictions on discriminating against employees based on medical status, the departments said in their bulletin.

I understand how dropping an ill employee from health coverage because of a medical condition would violate a variety of laws, including the ADA. But, in these cases, employers are not “dropping” employees. Instead, they are merely shifting coverage from an employer-sponsored plan to a government-sponsored plan. The cost to the employee, and the coverage available to the employee, should not change. If the cost and coverage does not change, this practice should not violate any laws.

An employee must ask for ADA accommodation to receive it

By now, hopefully everyone reading this blog knows that the expiration of an employee’s 12 weeks of annual FMLA leave is not necessarily the end of that employee’s unpaid leave of absence for his or her own medical issues. Under the ADA, an employer must consider granting unpaid leave the exceeds the FMLA as a reasonable accommodation, provided that the employee actually requests the accommodation. As Judge v. Landscape Forms (6th Cir. 11/24/14) [pdf] makes clear, an employer is not required to offer a reasonable accommodation that an employee does not first request.

The facts of the case are relatively simply. Mark Judge took an FMLA leave to heal his shoulder after surgery from a non-work injury. At the time of his FMLA leave, he advised the company that his recovery time was 4-6 months. When his 12 weeks of FMLA leave expired, however, he did not advise of an expected return to work date, or otherwise ask for any additional unpaid time off as an accommodation.

Under those circumstances, the court concluded that the company had no obligation to provide any unpaid leave in excess of Judge’s 12 weeks of FMLA:

The EEOC regulations interpreting the ADA place the initial burden of requesting an accommodation on the employee. Once that request is made, the employer has a duty to engage in an interactive process to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. But if the employee never requests an accommodation, the employer’s duty to engage in the interactive process is never triggered…. 

Judge argues that Landscape Forms should have granted him a leave of absence until mid-November 2011, when he ultimately was released to work without restrictions. However, Judge fails to identify any statement he made before he was fired that could be construed as a request for leave until then….

Leaves of absence and reasonable accommodations are two of the trickier workplace issues facing employers. When those two issues converge with one employee, the complexities increase exponentially. As Judge v. Landscape Forms illustrates, unpaid leaves of absence are not a guaranteed entitlement, and employees must ask for for accommodation before being able to sue over its denial.

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Happy Thanksgiving. I am extraordinarily thankful that you take the time to read my thoughts every day. I’ll see everyone back on Monday after a much needed long weekend.

It’s five in a row for the ABA Journal’s Blawg 100

For the fifth year in a row, I am honored that the ABA Journal has chosen the Ohio Employer’s Law Blog for the Blawg 100, its list of the 100 best legal blogs.

Last night on Twitter, another of the honorees affectionately called me an “employment law nerd” because of my selection. It is a title I wear as a badge of honor. As has been the case for the four prior years, I am thrilled to be on a list of blogs of such high quality written by lawyers who are my friends.

Now comes the shameless part. If you are so inclined, the ABA Journal is asking you to weigh in and vote on your favorites. Go to www.abajournal.com/blawg100 to register and vote. Voting ends at close of business on Dec. 19, 2014.

Thank you to all my readers.

There is no easy fix for the overtime-pay problem

Those of you who are long time readers know they I’ve long rallied for changes to the Fair Labor Standards Act. The law is overly complex, anachronistic, and nearly impossible for compliance by employers.

Last week, I read an article on politico.com arguing that the FLSA’s exemptions need to be rewritten to make it easier for employees to qualify for overtime pay. This is not the right solution to this country’s wage-hour problems. You don’t fix one problem by creating another, i.e., punishing small and midsize employers by requiring them to start paying groups of employees overtime en masse. What will be their solution to this newly created problem? Reverse engineering. They will look at each employee’s W-2 wages for the past years, and calculate the appropriate lower hourly wage (or salary) to play each newly overtimed employee that will result in the same annual W-2 figure with the time-and-a-half rolled in.

This is not a solution. It’s an administrative burden that will not put more money in workers’ pockets. The solution is to make FLSA compliance easier for employers by simplifying decades-old regulations.

There is one wage-hour change I can support. Pending in the Ohio legislature is a bill that would require retail employers to pay triple-time to employees who work on Thanksgiving. Dear readers, please do not shop on Thanksgiving. Retailers require employees to give up their holiday because we show up for sales like lemmings to the 25% off sticker. I understand why safety forces and medical workers need to give up their holidays. But the cashier at Target? He or she deserves the day of add much as I you and I do. So if we need a law to disincentive employment on these days, then so be it.

WIRTW #346 (the #grossatwork edition)

Gawker wants to know, “What’s the Grossest Thing You've Ever Done at Work?” Me? I very accidentally walked in on a very naked octogenarian. You? Share in the comments, or on Twitter with the hashtag #grossatwork.

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

Discrimination

• Pick a number, any number: $185 million for pregnancy bias — via Walter Olson’s Overlawyered
• Employers Must Treat Pregnant Workers Mindfully to Avoid Compliance Challenges — via Smart HR Manager
• Personal desktop printers: convenience or reasonable accommodation? — via Technology for HR
• Senators Grill EEOC General Counsel Lopez In Confirmation Hearings W— via orkplace Class Action Litigation

Social Media & Workplace Technology

• The NLRB and the EEOC are primed to sue you for using social media in the hiring process — via Mike Haberman’s Omega HR Solutions
• Does Your Technology Match Your Culture? — via SocialFish
• Facebook Testing New Service Designed For Workplace Use — via TLNT
• Is it against the law to remote wipe an employee's Candy Crush high score? — via Eric Meyer’s The Employer Handbook Blog
• Fitbit data is being used as evidence in court — via The Verge
• When inappropriate texts aren’t harassment — via Evil HR Lady, Suzanne Lucas
• The Inbox - Love Me Tinder — via Suits by Suits
• Teacher’s Racist Twitter Rant and the Law — via Phil Miles’s Lawffice Space

HR & Employee Relations

• “Happy Holidays” vs. “Merry Christmas” — via Evil Skippy at Work
• Workers Gave Up $52 Billion In Vacation, is it Time to End 20th Century Vacation Policies? — via Blogging4Jobs
• OSHA Warns Retailers It Expects Better Than Business as Usual on Black Friday — via Employer Defense Law Blog
• I Love Sports References in the Workplace — via Next Blog
• Planning your workplace holiday party? Read this first! — via Robin Shea’s Employment & Labor Insider
• Chick-fil-A Manager Loses His ****, Posts Ban of Slang Words in Store — via The HR Capitalist, Kris Dunn
• Workplace of the Future? Citi’s Experiment — via Families and Work Institute Blog
• A Working Father’s Response — via DOL’s Work in Progress

Wage & Hour

• FLSA Suit Against Supervisors Barred by 11th Amendment Workplace Prof Blog
• Employees of New York City Strip Club Dance Off With $10M Employment Law Worldview
• Wage Theft Continues To Plague Workers Overtime Lawyer Blog
• And Another One: Conde Nast Settles Intern Pay Lawsuit In House
• Employee wage, time off, and benefit issues that arrive with winter storms HR Hero Line
• What is Off-the-Clock Work? Wage & Hour - Development & Highlights

Labor Relations

• Wal-Mart Labor Struggles to Result in Black Friday Protests — via Workplace Prof Blog
• VW Implements New Labor Policy, Potentially Paving Way For UAW — via Labor Relations Today