Some thoughts on arbitration agreements for employees

Recently, the Cuyahoga County Court of Appeals stymied an attempt by an employer to enforce an arbitration agreement against an employee. The employer was a Burger King franchise and the employee was a former employee claiming she was raped by her supervisor in the restaurant’s men’s bathroom. The court, in Arnold v. Burger King, concluded that, for various reasons, enforcing the agreement against her and requiring her to arbitrate her claims would be unconscionable.

Arnold notwithstanding, arbitration continues to the favored method used by employers to limit their potential exposure in front of a jury. I, however, am not a fan of arbitration agreements. Conventional wisdom suggests that arbitration is quicker and cheaper means to resolve lawsuits. Research, however, suggests that the opposite may better match reality.

lf arbitration is neither faster or less expensive than court, but you still want to foster expediency and limit the risk of a runaway jury verdict, consider two possible alternatives.

Contractual Waivers of Jury Trials

First, employers can have employees sign agreements waiving the right to ask for a jury in any subsequent legal disputes. More than 20 years ago, in K.M.C. Co. v. Irving Trust Co., the 6th Circuit stated: “It is clear that the parties to a contract may by prior written agreement waive the right to jury trial.... [T]he constitutional right to jury trial may only be waived if done knowingly, voluntarily and intentionally.” The contract should clearly and unambiguously advise the employee that by signing the agreement the employee is giving up any and all rights to have any claims related to his or her employment raised by a jury. The more broadly the waiver is drafted, the more likely it will cover an employment-related claim, provided it is otherwise knowing and voluntary.

Agreements to Shorten the Statute of Limitations

Secondly, employers can attempt to limit the amount of time employees have to assert employment claims. In Thurman v. DaimlerChrysler, Inc. [pdf], the 6th Circuit held that a clause in an employment application limiting the statutory limitations period for filing a lawsuit against the employer was valid. Thurman’s employment application with DaimlerChrysler contained a clause waiving any statute of limitation and agreeing to an abbreviated limitations period in which to file suit against the employer. Specifically, the clause stated:

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

The Court held that the abbreviated limitations period contained in the employment application was reasonable, and that all of Thurman’s claims against DaimlerChrysler were time barred by the six-month limitations period. The Court paid particular attention to the “read carefully before signing” language, and noted that it was in bold and placed conspicuously directly above Thurman’s signature acknowledging that she read and understood the document. It also found the specific language used was clear and unambiguous.

The advantage of using these types of clauses is that you can limit the duration of potential liabilities. For example, in Ohio employees have 6 years to file discrimination claims (other than age) under R.C. 4112.99. A clause such as the one in Thurman would shorten that time frame from 6 years to 6 months, a dramatic improvement.

“FMLA” is not a magic word

Does an employee have to invoke the letters “F-M-L-A” for an employer to offer it? Or, what if an employer fires an employee who misses work because of an FMLA-qualifying illness for which FMLA-leave was not offered? Has the employer violated the statute?

In Festerman v. County of Wayne (6th Cir. 5/8/15) (h/t: Eric Meyer), a police officer felt chest pains at left work for the emergency room. Five days later, he submitted an incident report, and, a day after that, a doctor’s note that stated, “Patient is advised to limit working hours to 8 hrs/day.”  At no time, however, did the employee specifically request FMLA leave, or invoke the statute for his time off from work.

The 6th Circuit concluded that neither the hospital visit nor the doctor’s note were individually sufficient to place the employer notice that the employee qualified for FMLA leave. However, the court concluded that, presented with the total picture, a fact issue existed as to whether the FMLA covered this employee’s leave.

This Court is confronted with a doctor’s note that expressly discloses a requirement of limiting the employee’s work hours per day, but fails to disclose the condition that gives rise to this requirement or any additional prescribed treatment. Consequently, the doctor’s note submitted by Festerman, in isolation, may not have provided sufficient notice to Wayne County of a qualifying condition under the FMLA. The circumstances surrounding Festerman’s initial qualifying leave, however, provided additional context to the doctor’s note and are evidence that Festerman’s superiors were aware of his potential FMLA-qualifying condition….

Given Wayne County’s knowledge of a serious health-related incident that occurred in the workplace and the doctor’s note which advises that Festerman’s workday should be limited to eight hours per day, a reasonable jury could find that Festerman provided sufficient notice to Wayne County of a FMLA-qualifying serious health condition.

I’ve previously discussed how an employer should handle an employee’s potential or questionable request for leave under the FMLA.

• If the employer fails to treat the request as one for FMLA leave, the employer assumes all of the risk. If the employer is wrong, and the employee was requesting FMLA leave, an employer is severely limited it its ability to defend an FMLA interference lawsuit.

• If, however, the employer treats the request as one for FMLA leave, the employee assumes all of the risk. The FMLA provides an employer tools  to verify the legitimacy of the request. The employer can (and should) require that the employee provide a medical certification justifying the need for the FMLA leave. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. If the employer ultimately concludes that the leave does not qualify under the FMLA, it can retroactively deny the leave and treat all intervening absences as unexcused, which usually results in termination.

In other words, employers, err on the side of caution. Use the FMLA’s checks and balances. When in doubt, offer conditional FMLA leave, and confirm with the statute’s medical certification process. And, just, as importantly, train your supervisors to recognize a potential FMLA issue so that they do not get in the way of this process working.

WIRTW #367 (the “warped” edition)

In my never-ending quest to retire from law and manage my daughter’s burgeoning music career full-time, I bring you highlights from last weekend’s School of Rock Warped Tour show, with Norah singing lead vocals on “Russian Roulette” by Tsunami Bomb, and playing lead guitar on “Prosthetic Head” by Green Day.

This weekend, you have two chances to catch the SoR Warped Tour band in action. Tomorrow, they will be playing a few songs at the Relay for Life, at Pat Catan Stadium in Strongsville, at 3:30, and Sunday they will reprise the entire show at the Music Box Supper Club at 12:30. Or, if you follow me on Periscope or Twitter, you’ll likely be able to catch a song or two live from the comfort of your iPhone.

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

Discrimination

• Be Smarter than the Average Bear: ADA Accommodations at Camp — via Dan Schwartz’s Connecticut Employment Law Blog
• New Fourth Circuit Standard: Single Incident Sufficient For Title VII Hostile Workplace Harassment Claim — via The Employment Brief
• Can we stop with the age-based stereotypes? — via Robin Shea’s Employment & Labor Insider
• How 2 racial slurs in 24 hours can create a hostile work environment — via Eric Meyer’s The Employer Handbook Blog
• Same-Sex Marriage Bans As Sex Discrimination: The Potential Impact On Plan Sponsors And Employers — via Employment Law Lookout
• Growing Numbers of Americans Report Age Discrimination — via Atlanta Employment Lawyer Blog
• Proposed EEOC Rules Further Complicate Wellness Program Design — via E is for ERISA

Social Media & Workplace Technology

• Infographic: What recruiters really think of your social media photos — via Ragan.com
• A data breach is often an employee problem — via Mike Haberman’s Omega HR Solutions
• Woman fired after disabling work app that tracked her movements 24/7 — via The Verge
• Do Your Apps Violate Employee Privacy? — via Heather Bussing at HR Examiner

HR & Employee Relations

• Deflategate and the power of external investigations — via EntertainHR
• Bill Simmons and ESPN: 5 Times When It's Time to Fire Your Biggest Star — via The HR Capitalist
• Moms Should Be the Most Upset with Piers Morgan’s Paternity Leave Comments — via The Daddy Files
• Stop Punishing the Family Man — via Harvard Business Review
• Jury Awards $2 Million to Nurse for “Defamatory” Report to Board of Nursing — via Minnesota Employment Law Report
• Study: How to best manage millennials — via Ragan.com
• Employee Handbooks: Every Word Counts—A Quick Fix to Your Harassment — via Next Blog
• Providers: Beware of HIPAA and Patient Privacy Rules During Employment Disputes — via Above the Law

Wage & Hour

• The Trouble with Off-the-Clock Work — via Blogging4Jobs
• Courts continue to back employers with strong timekeeping policies, practices — via EmployerLINC
• The next labor fight is over when you work, not how much you make — via Wonkblog
• OSHA Issues Comprehensive Rule to Protect Construction Workers in Confined Spaces — via Joe’s HR and Benefits Blog
• OSHA: Inadequate Penalties, Poor Enforcement — via Workplace Prof Blog
• FMLA and Union Contracts May Be More Than We Bargained For — via The Emplawyerologist

Labor Relations

• Should you settle that pesky NLRB charge? — via HR Hero Line
• Do your confidentiality and nondisclosure agreements violate Federal law? — via Mike Haberman’s Omega HR Solutions
• Make sure your company e-mail policy passes the Purple test — via Technology for HR

NLRB offers some good news for franchisors, or does it?

We are in the middle of class war in America, and your local fast-food restaurant is ground zero. Workers are fighting for higher wages and better working conditions. And, they are getting some help from the federal government.

Last summer, the NLRB Office of General Counsel authorized complaints against 43 different McDonald’s franchises, along with the restaurant’s franchisor, McDonald’s, USA, LLC. In each case, the franchisor did not own the restaurant or employ the workers. Instead, McDonald’s merely licenses its trademarks and operating procedures to the local franchisees. The franchisees, in turn, hire, fire, discipline, pay, and take all other responsibilities for the employees. As a “joint employer,” however, McDonald’s will share liability with the direct employer as if it stands in their shoes, because if a franchisor is a joint employer with its franchisee, the franchisor would share liability for all the franchisee's employment and other sins.

This week, however, we received some news on this front from the same NLRB Office of General Counsel. In Nutritionality, Inc. d/b/a Freshii [pdf], the OGC issued an advice memorandum concluding that the franchisor is not a joint employer with the franchisee.

Nevertheless, it’s not all happy meals for franchisors. The OCG compared two possible legal test for “joint employers,” the Board’s current standard and the “industrial realities” test.

Under the Board’s current standard—

The Board will find that two separate entities are joint employers of a single workforce if they “share or codetermine those matters governing the essential terms and conditions of employment.” To establish such status, a business entity must meaningfully affect matters relating to the employment relationship “such as hiring, firing, discipline, supervision, and direction.” … The Board and the courts have also considered other factors in making a joint employer determination, including an employer’s involvement in decisions relating to wages and compensation, the number of job vacancies to be filled, work hours, the assignment of work and equipment, employment tenure, and an employer’s involvement in the collective bargaining process.

In Nutritionality, however, the OGC lobbied for the NLRB to apply a more liberal “industrial realities” test—

Under that standard, the Board finds joint employer status where, under the totality of the circumstances, including the way the separate entities have structured their commercial relationship, the putative joint employer wields sufficient influence over the working conditions of the other entity’s employees such that meaningful bargaining could not occur in its absence. This approach makes no distinction between direct, indirect and potential control over working conditions and results in a joint employer finding where “industrial realities” make an entity essential for meaningful bargaining.

Ultimately, the OGC concluded that the franchisor failed as a joint employer under either test. Nevertheless, as the NLRB continues litigate against McDonald’s as a “joint employer,” this issue bears monitoring, especially as to the legal standard espoused by the NLRB. If the NLRB ultimately concludes that McDonald’s is a joint employer with its franchisees under a looser, more liberal joint-employer standard, it could be the most significant legal development of the year to come.

[Hat tip: Phil Miles]

NLRB judge strikes down termination based on HIPAA violation

HIPAA. Five letters that strike fear into the heart of anyone that handles employee medical information. That is, anyone except an NLRB judge passing judgment on whether an employer was justified in firing a union-supporting employee for clear HIPAA violations.

In Rocky Mountain Eye Center [pdf], and NLRB administrative law judge was faced with the issue of whether the NLRA protects an employee of a medical practice, Britta Brown, who accessed co-worker medical information in her employer’s Centricity database for the purpose of gathering contact info for a union-organizing campaign. The judge concluded that the employee’s HIPAA violation did not strip her of the Act’s protection.

I find the Respondent’s comingling of employee and patient data in Centricity, along with its training instructions to employees and its practices, detailed above, preclude any legitimate defense that Brown’s accessing the system to obtain employee phone numbers warranted discipline as a HIPAA violation. While the Respondent's general concerns about HIPAA compliance are unquestionably legitimate, the circumstances here lead me to conclude they were seized upon to stop Brown’s union activity.

In other words, because the employer: 1) permitted the co-mingling of non-protected employee contact information with protected patient medical information, regardless of whether the employee was also a patient, and 2) trained (or, at least, acquiesced in) employees using Centricity to access each others’ contact info for work-related reasons, such as scheduling and social events, the employer could not discipline an employee who used the same tools to access the same information for a union-organizing campaign.

HIPAA isn’t the only law that mandates the confidentiality of medical information.

• The ADA provides that information obtained by an employer regarding the medical condition or history of an applicant or employee must be collected on separate forms, kept in separate medical files, and be treated as a “confidential medical record.”
• If an employer has genetic information obtained under one of GINA’s limited exceptions, it must also keep this information separate from personnel files and treat it as a confidential medical record.

If you are a medical practice and your employees are also your patients, HIPAA adds a deep layer of complexity to these confidentiality issues. The judge’s decision in Rocky Mountain Eye Center notwithstanding, take these confidentiality requirements seriously, and train your employees on the proper handling of, and access to, confidential medical information. Otherwise, instead of an unfair labor practice charge, you might be facing a lawsuit from an employee relating to a breach of confidentiality.

John Oliver tackles paid medical leave

Is it time for America to catch up to the rest of the world and offer paid family leave to our employees? Perhaps the best argument in favor of paid family leave is that besides Papua New Guinea, we are the only country that doesn’t offer it. Makes you think we’re a little behind the times.

Here’s John Oliver’s very funny, and poignant, take on the issue from this week’s Last Week Tonight:

Did the 6th Circuit just gut the honest-belief rule?

The only fight I’ve even been in was in 4th grade. For reasons that I can’t remember, Yale Weinstein and I squared off in the schoolyard of Loesche Elementary School. There were no winners, only losers, and the only thing that saved both of us from suspension that day was the fact that the principal knew my dad from his childhood and was friends with my grandmother. It’s not what you know, but who you know, right?

Let’s suppose you have two employees who get into a fight at work, and one happens to be white and one black. Does Title VII require you to fire both employees, or can you make an honest assessment of the instigator, and only fire the responsible party?

According to the 6th Circuit in Wheat v. Fifth Third Bank (5/7/15) [pdf], an employer potentially violates Title VII when an it fires only one participant in a workplace fight, when both are of different races.

The facts are relatively simple. Wheat (black) and Hatfield (white) first got into an argument, which later escalated into a physical altercation. The employer’s HR department immediately investigated, concluded that Wheat was the instigator, and fired him for violating its workplace violence policy.

The 6th Circuit concluded that the trial court erred in dismissing Wheat’s Title VII claim on summary judgment. Critically, the appellate court reviewed the deposition testimony and found that the evidence showed that Hatfield, and not Wheat, was the aggressor.

Even the most cursory of examinations of the evidence before the district court and this court reveals that a genuine factual dispute exists regarding Wheat’s status as the aggressor in the confrontation with Hatfield. In fact, the deposition testimony establishes that it was Hatfield, not Wheat, who pursued the altercation after the two men had separated initially and gone to their respective “corners.” Even Hatfield himself admitted that it was he who took the ill-advised step of reengaging with the plaintiff after their initial encounter. Moreover, even if the defendant’s position is premised upon its belief that Wheat was the initial aggressor when the two men met in the hallway of the bank, the argument must fail. Although Hatfield claimed that the plaintiff “put his hand in [Hatfield’s] face,” Wheat stated during his deposition that he was turning around to extricate himself from the argument when Hatfield “assaulted” him by swatting him on his arm.

Based on the appellate court’s reading of the deposition testimony, it concluded that “divergent explanations of the unfolding of the relevant events creates an obvious dispute of fact that should preclude the grant of summary judgment to the defendant at the prima-facie-case stage of the litigation.”

To that, I say hogwash. Courts have long held that they do not, and will not, sit as super-personnel departments, second-guessing an employer’s business decisions. Indeed, an employer’s “honest belief” in its decision will act as a shield from a later claim of discrimination. As another panel of this same court recognized a few years ago, in Brooks v. Davey Tree Expert (internal quotations omitted):

Under the “honest belief” rule … so long as the employer honestly believed in the proffered reason, an employee cannot prove pretext even if the employer’s reason in the end is shown to be mistaken, foolish, trivial, or baseless…. For an employer to avoid a finding that its claimed nondiscriminatory reason was pretextual, the employer must be able to establish its reasonable reliance on the particularized facts that were before it at the time the decision was made.

[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action. Although we will not micro-manage the process used by employers in making their employment decisions, we also will not “blindly assume that an employer’s description of its reasons is honest. Therefore, when the employee is able to produce sufficient evidence to establish that the employer failed to make a reasonably informed and considered decision before taking its adverse employment action, thereby making its decisional process unworthy of credence, then any reliance placed by the employer in such a process cannot be said to be honestly held.

It seems to me that as long as Fifth-Third Bank’s HR department engaged in a reasonable-under-the-circumstances investigation of the fight between Wheat and Hatfield, a court is not in a position to second-guess the results of that investigation or the terminations that flowed therefrom. Yet, by examining the deposition testimony and reaching its own independent conclusion of which employee was responsible for the fight, hasn’t this court undermined (or, more accurately, ignored) the employer’s “honest belief?” And, if that’s the case, what does it say about the future of the honest-belief rule as a viable defense to a discrimination claim in the 6th Circuit?

For now, however, if you are faced with two employees of different races (or national origins, or religions…) fighting in your workplace, is it just best to fire them both, if your honest belief of who was the instigator won’t protect you if that “instigator” happens to be of different race?

WIRTW #365 (the “en français” edition)

One of the curricular pieces I love about my kids’ school is that they start foreign language in kindergarten. My daughter, Norah, is now in her 4th year of French (which she gets every other day), and my son, Donovan, gets both French and Spanish, alternating each day.

When we attending Norah’s first parent/teacher conference when she was in kindergarten, I remember her French teacher telling us all about the play that would cap their year. I sat in disbelief as she explained how the kids would perform “La Poule Maboule” (Chicken Little), all in French. Imagine my surprise a few months later when I sat at school and watched the kids masterfully pull it off.

Now, three years later, the performances are no longer a surprise, but are still a delight to experience how little minds soak up foreign languages.

So, I present Donovan’s kindergarten class performing “La Poule Maboule,” and Norah’s 3rd grade class performing “Comment y Aller.”

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

Discrimination

• Well, that stinks! Doo-doo creates a discrimination claim. — via Eric Meyer’s The Employer Handbook Blog
• When Are Reasonable Accommodations NOT Required For a Disabled Employee? — via Minnesota Employer
• EEOC Launches Digital Charge System — via Workplace Prof Blog
• Does Title II of the ADA Apply to Employment? Two Views — via Understanding the Americans with Disabilities Act
• Timing of termination creates question of fact in association discrimination case — via EmployerLINC
• EEOC Denied Inspection Of Employer’s Premises — via Workplace Class Action Litigation

Social Media & Workplace Technology

• Regulatory Update: DOJ and SEC Issue Privacy and Cybersecurity Recommendations — via Privacy and Data Security Insight
• Social Media Assets in Bankruptcy: Facebook and Twitter Accounts Subject to Reach of Creditors — via Socially Aware Blog
• Five Key Social Media Questions All Health Care Employers Should Consider: Question #1: When is it okay to fire an employee for a social media post? — via netWORKed Lawyers
• The poisonous nature of too much of our online dialogue — via Minding the Workplace
• One-third of jobs will be replaced by robots — via Inhouse Blog
• You can’t spell “idiot”  without IoT (Internet of Things) — via The Verge

HR & Employee Relations

• How to Keep Your Office Weird, Without Getting Sued — via In House
• Millennials want a work-life balance. Their bosses just don’t get why. — via Washington Post
• Unlimited Vacation, Free Beer and Kids at Work. Is this the Future Workplace? — via Rush on Business
• People Are Not Trade Secrets — via HR Examiner with John Sumser
• Making the Case for Pre Employment Personality Tests — via Newton Software Blog
• What do you do with old personnel records? — via Mike Haberman’s Omega HR Solutions
• Arbitration … be careful what you ask for — via Michigan Employment Law Connection

Wage & Hour

• Study: minimum wage hurt employment, earnings, mobility for low-skill workers — via Walter Olson’s Overlawyered
• NFL Cheerleaders To Be Deemed “Employees” And Protected Under Proposed Law — via Wage & Hour - Development & Highlights
• FLSA Exemption Changes: More On Salaried-Employee Alternatives — via Wage and Hour Laws Blog
• Wage and Hour Basics Series: Penalties for FLSA Non-Compliance — via Wage & Hour Insights
• Proposed overtime rule has been sent to OMB — via Robin Shea’s Employment & Labor Insider
• Intermittent FMLA — and More Recurring Issues — via The Emplawyerologist

Labor Relations

• Inside the Case That Could Hold McDonald’s Responsible for Union-busting — via Workplace Fairness
• Cleaning Up Your Employee Handbooks, NLRB-Style — via Dan Schwartz’s Connecticut Employment Law Blog
• Employer beware: NLRA rulings often conflict with existing employer policies — via Technology for HR

OSHA chimes in on transgender bathrooms

OSHA is no stranger to regulating workplace bathrooms. Now, Employment Law 360 [sub. req.] reports that OSHA and the National Center for Transgender Equality “have entered into a partnership to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms.” According to NCTE Executive Director Mara Keisling, “Transgender workers can be prevented from using common workplace restrooms, which is a threat to their physical health and a violation of federal law.” Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels adds, “Through this alliance, we will jointly work with the NCTE to develop products and guidance materials to improve workplace safety and health for all workers.”

This is an interesting issue, and, especially for employees and employers for whom this issue causes some degree of discomfort, can present a real problem. Yet, this is a problem with a simple solution—establish a unisex bathroom. Or, you can permit transgender employees to use the bathroom of the gender with which they identify. Either way, this is an issue you should be discussing with your employees and building in your EEO / anti-harassment training. This issue is not going away (see Bruce Jenner), and the sooner you address it in your workplace, the less risk you are taking.

[Image courtesy of Robin Shea’s Employment & Labor Insider]

Is hiring for “digital natives” age discrimination?

Let’s say you’re looking to fill a position at your company that requires a certain degree of technical proficiency. Or, you just want to make sure that the person you hire is comfortable with a computer, an email account, and an iPhone. Is it legal to advertise that the position requires a “digital native?” According to Fortune.com, some companies have begun using this term as a hiring criteria in job postings. Yet, is “digital native” simply code for “younger?”

“Digital native” certainly appears to be a loaded term. According to the Fortune article, some employment attorneys believe that the “trend” towards digital natives is “troubling” and “a veiled form of age discrimination.”

• “This is a very risky area because we’re using the term that has connotations associated with it that are very age-based. It’s kind of a loaded term.” Ingrid Fredeen, attorney and vice president of NAVEX Global

• “I don’t believe using ‘digital native,’ a generational term, as a job requirement would stand up in court. I think older individuals could definitely argue ‘digital native’ requirements are just a pretext for age discrimination.” Christy Holstege, California civil rights attorney

Let me offer a counter-argument. I’m 42 years old, more tech savvy than most, and, by any definition, a digital native. I’ve been using computers since my early grade-school years. I’d fit any criteria seeking a “digital native,” and, yet, I’m also inside the age-protected class. While I do not believe companies should use “digital native” in job advertisement or descriptions (just as I wouldn’t use “recent graduate”), one challenging its use cannot examine that use in a vacuum. Instead, take a look at the hiring demographics. How many employees over 40 (over 50, over 60) hold a position that calls for a digital native. If the answer is “none,” then the employer has a huge problem. If, however, there exists a good mix of ages—both outside and inside the protected class—then there also exists a great argument that the term “digital native” has no loaded, illegal subtext.

Failure to accommodate may not equal retaliation, says federal court

In Neely v. Benchmark Family Services (S.D. Ohio 4/21/15), the plaintiff claimed that his employer retaliated against him for failing to accommodate his undiagnosed alleged sleep disorder. His symptoms included averaging two or three hours of sleep per night, and randomly falling asleep during the day, including while at work. The court dismissed Neely’s ADA discrimination claim and failure to accommodate claim, in large part because there was no evidence that his sleep issues had a medical root. Then the court turned to Neely’s retaliation claim:

One might wonder how retaliation claim in the absence of a disability can be squared with the text of the statute…. The line of cases relied upon by the Sixth Circuit explains that “[a]n individual who is adjudged not to be a qualified individual with a disability may still pursue a retaliation claim under the ADA as long as [he] had a good faith belief that [a] requested accommodation was appropriate.” Thus, “although ‘[i]t is questionable’ whether an employee who merely requests a reasonable accommodation ‘fits within the literal language of the statute,’  we are bound … to conclude that making such a request is protected activity….”

Plaintiff would have the Court extend this reasoning even further to himself, a litigant who was not disabled under the act, unlike the cited cases, did not request an accommodation and had not yet filed a formal charge…. Other courts have refused to extend retaliation claims to employment actions taken after an employee’s complaints of health conditions to a manager, and so will this Court.

What does this mean for you, as a practical matter? When an employee complains about a health problem at work, do your diligence. Determine if the employee is requesting an accommodation. If so, seek and gather from the employee medical information in support of the claimed disability and the requested accommodation. Then, make an informed decision about whether the employee is disabled if and if you should offer an accommodation. These steps will put you in the best position to defend against discrimination, accommodation, and retaliation claims under the ADA.

Let’s start treating salaried workers like salaried workers

I’ve been thinking a lot lately about what it means to be a salaried exempt employee. The classification is significant, because it enables an employer not to pay the employee overtime for an hours worked over 40 in week.

To qualify under most of the FLSA’s exemptions, the employee must be paid on a salary basis, which means that the exempt employee must receive his or her full salary for any week in which the employee performs any work, without regard to the number of days or hours worked. For this reason, the FLSA only permits an employer to take deductions from an exempt employee’s salary in very limited circumstances:

• For full workweeks in which the exempt employee performs no work.
• For an exempt employee who is absent for a full work day for personal reasons other than sickness or accident. 
• For an exempt employee absent a day or more for sickness or disability, if the company maintains a plan that provides compensation for loss of salary caused by sickness and disability and the employee exhausted that leave.
• For penalties imposed for violation of safety rules of major significance.
• To offset any amounts received by an employee as jury or witness fees, or military pay.
• For unpaid disciplinary suspensions of one or more full work days for workplace conduct rule violations.
• For partial weeks worked during the initial or final weeks of employment. 
• For an exempt employee working a reduced or intermittent work schedule under the Family and Medical Leave Act.

Otherwise, if an employer deducts pay from an exempt employee’s salary for time missed for any other reason, that deduction will cause the employer to lose the benefit of that employee’s exemption for that work week. Moreover, it will also cause the employer to lose the benefit of the exemption for any other employee working in the job classification for the same manager, regardless of whether any of those other employees also suffered improper deductions that week. 

As Chris McKinney recently pointed out on his Texas Employment Law Blog, noticeably missing from any discussion of improper salary deductions is deductions from banks of paid time off. Indeed, the FLSA permits an employer to dock vacation time in any increment, and force a salaried exempt employee to use vacation or other paid time off to cover time away from work without jeopardizing that employee’s exempt status. 

Perhaps the question employers should be considering, however, isn’t whether the FLSA permits deductions from an employee’s paid time off in increments of less than a full work day, but whether it makes sense to take those deductions at all. Above all else, being a salaried exempt employee means that you work until you get the job done. Some weeks it means that the employee works 40 hours, some weeks 60 hours, and some weeks even more. And, it also means that some weeks, the employee works less than 40 hours. If a salaried exempt employee is performing (that is, getting the job done in a timely and quality manner), then if that employee needs a few hours off to take a child to a doctor’s appointment, or a half-day to attend an event at a child’s school, do we really need to nickel-and-dime that employee over a few hours of PTO? Or, do we recognize the employee’s diligent performance, permit the time off, with the understanding that the time will be “made up” when the employee works to get the job done? You can can which option I prefer.

WIRTW #366 (the “same-sex marriage” edition)

Earlier this week, the U.S. Supreme Court heard oral argument in Obergefell v. Hodges, one the Court’s most anticipated cases in years, which will (hopefully) decided the fate of same-sex marriage rights.

The web’s best coverage of the oral argument and its implications comes from SCOTUSblog:

• “Super-cuts” from same-sex marriage arguments
• No clear answers on same-sex marriage: In Plain English
• Argument analysis: Justice Kennedy, hesitant but leaning
• Evening round-up: Today’s argument in Obergefell v. Hodges

Stay tuned. The decision is expected in June, and I’ll be sure to report on its implications for your workplace.

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

Discrimination

• If Bruce Jenner Were Your Employee — via Inc.com
• “My religion or my job?” That’s a bad workplace question. — via Eric Meyer’s The Employer Handbook Blog
• EEOC Commissioner Offers Helpful Guidance to Employers on Providing Accommodations to Pregnant Employees — via Jeff Nowak’s FMLA Insights
• Look! Abercrombie Finally Shifts Hiring Focus After Years of Lawsuits — via In House
• EEOC Considers Commuting a Major Life Activity — via FEDweek
• Spate of Gender Discrimination Lawsuits Against Silicon Valley Technology Companies Highlights the Importance of Adopting and Enforcing Anti-Discrimination Policies and Procedures — via Technology Company Counselor
• You Accommodate Your Employees, But Do They Accommodate Your Customers? — via All in a Day’s Work
• Hey – that EEOC wellness rule isn’t half bad — via Robin Shea’s Employment & Labor Insider
• Company Settles ADA Suit Alleging Violation of Law’s Medical Inquiries, Confidentiality Clauses — via Joe’s HR and Benefits Blog

Social Media & Workplace Technology

• What Do You Do When The Ugly Allegations In A Lawsuit Against Your Company Go Viral? — via The Labor Dish
• Periscope hit 1 million users in its first 10 days — via The Verge
• Do You Lock Your Phone with a Passcode? — via Lifehacker
• Will the Second Circuit “Like” the NLRB’s Recent Stance on Social Media? An Update on the Facebook “Like” Firing Case — via Employment Matters Blog

HR & Employee Relations

• Is 2015 Becoming the Year of the Employee? — via TLNT
• Watch This Great Webinar on Working Dads, Paternity Leave and Workplace Flexibility — via Fathers, Work and Family
• Weasels and Sociopaths — via HR Examiner with John Sumser
• Is HR Legally Liable for a Boss’s Bad Behavior? — via Evil HR Lady, Suzanne Lucas
• My Co-Worker Called Me A Mother F!@#%r — via Evil Skippy at Work
• The 18 Hottest Background Screening Trends — via Newton Software Blog
• OSHA steps into center ring in unusual accident probe — via Business Management Daily

Wage & Hour

• FLSA Exemption Changes: Some Compensation Alternatives For Salaried Employees — via Wage and Hour Laws Blog
• Gawker FLSA Collective Action Illustrates Clash of Technology and Law — via Above the Law
• Reimbursing Employees for Business Expenses: The FLSA Kickback Rule — via Wage & Hour Insights
• Is Intermittent FMLA Giving You a Chronic Headache? — via The Emplawyerologist
• Eighth Circuit Holds Early Stage Illness Does Not Warrant FMLA Leave — via Minnesota Employment Law Report

Labor Relations

• When Reviewing a Reinstatement Decision by an Arbitrator, Consider Over a Dozen Factors — via Dan Schwartz’s Connecticut Employment Law Blog
• Update on NLRB Election Rules Challenge — via Workplace Prof Blog
• The More the Merrier? A New Lawsuit Against the NLRB’s Election Rule Encounters an Early Setback — via Vorys on Labor
• Con-Way Says No To Teamsters — via Labor Relations Today
• Ambush Elections: Use the Force? — via Labor Relations Institute

Supreme Court ruling on EEOC conciliation obligations is a Pyrrhic victory for employers

One question that employers always ask upon receipt of an EEOC charge of discrimination is, “How does this process work?” After the EEOC concludes its investigation, it has two basic options. It can conclude that no reasonable cause exists that the employer violated Title VII and dismiss the charge (leaving the employee to file his or her own lawsuit in federal court within 90 days), or conclude that reasonable cause does exist (again leaving the employee to file his or her own lawsuit, or instituting a lawsuit on the employee’s behalf).

Before the EEOC can file its own discrimination lawsuit against an employer, Title VII requires that the agency “endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” What happens, however, if the EEOC fails to conciliate? What is scope of the EEOC’s conciliation obligation? And does a failure act as a bar to any subsequent lawsuit filed by the EEOC?

These were the question the Supreme Court considered in Mach Mining, LLC v. EEOC [pdf]. This is what the Court unanimously concluded:

1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation.

2. The statute only requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. Such notice must describe what the employer has done and identify the employees (or class of employees) that have suffered. The EEOC then must try to engage the employer in a discussion to provide the employer a chance to remedy the allegedly discriminatory practice. Title VII does not, however, require a good-faith negotiation.

3. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement.

4. Should a court conclude (based on “concrete evidence” presented by the employer) that the EEOC did not provide the employer the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, the appropriate remedy is to stay the proceedings and issue an order requiring the EEOC to undertake the mandated conciliation efforts. Dismissal of the lawsuit is not warranted in these circumstances.

Technically speaking, you can chalk this case up as a victory for employers, albeit a narrow one. The Supreme Court refused to hold that Title VII imposes a duty on the EEOC to negotiation in good faith, and that the agency satisfies its obligation to conciliate merely by providing notice and an opportunity to discuss. Moreover, a failure to conciliate doesn’t serve as a jurisdictional bar to litigation, but merely results in the EEOC being told to “try again, this time with meaning.”

If nothing else, this case sends a strong message that courts favor resolution, not litigation.

Supreme Court to consider time limits for constructive discharge claims

Yesterday, the Supreme Court finished its Spring 2015 term with oral argument in Obergefell v. Hodges, the same-sex-marriage case. Earlier in the week, it added another case to its docket for its 2015 – 2016 term, agreeing to hear Green v. Donahoe, which asks the following question:

Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held?

While this case is not as sexy as some other employment issues recently before the Court, it is nevertheless important. Under the federal employment discrimination statutes, an employee only has 300 days to file a charge of discrimination with the EEOC, which serves as the prerequisite to the filing of a later lawsuit in federal court. If the Supreme Court holds that the filing period begins to run at the employer’s last allegedly discriminatory act, then an employee who later resigns and claims constructive discharge will have a shorter window within which to file an administrative charge after the resignation.

Stay tuned, as this case will be heard towards the end of this year or early next year.

Asymptomatic HIV is a “disability,” no matter what one appellate court said

In Clayton v. Cleveland Clinic Foundation, an Ohio appellate court was faced with the issue of whether Ohio’s disability discrimination statute protects asymptomatic HIV as a “disability.” The court relied on the following exchange from the plaintiff’s deposition to conclude, wrongly, that the employee was not suffering from a protected disability.

Q. How does your HIV status impair you?

A. It doesn’t.

Q. All right. So you would say that it doesn’t substantially limit any of your activities of daily life?

A. No. Thank God. Praise him.

Q. When you were at the Cleveland Clinic Foundation, would you agree with me that you could perform all of your essential functions of being a housekeeper without any accommodations?

A. I was able to perform any duty without any accommodations.

Let’s start with the basics. Even before Congress amended the ADA in 2009 to liberalize the statute’s definition of “disability,” the law recognized and protected asymptomatic HIV as a disability. The United States Supreme Court said as much as far back as 1998, in Bragdon v. Abbott:

In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease.

The Clayton court was not only wrong about whether HIV qualifies as a disability, but also on the interplay between a disability and a reasonable accommodation. One has a “disability” if one has a a physical or mental impairment that substantially limits a major life activity, period. For the ADA to further protect that individual on the basis of that disability, the employee must be able to perform the essential functions of the job with or without reasonable accommodation. The determinations, however, are separate and distinct from each other. The essential function analysis has zero impact on whether one suffers from a protected disability as a threshold issue.

By conflating these two tests, this court set a dangerous precedent. Make no mistake, asymptomatic HIV is a disability. If an employee presents with HIV (or some other systemic illness), assume that the ADA covers the employee, and shift the analysis: 1) to ensure that the employee receives a reasonable accommodation if necessary to perform the essential function(s) of the job; and 2) to ensure that no one treats the employee differently because of the disability or some (mis)perception about the disability.

NLRB signs off on employer social media policy as legal

It’s not news that employer social media policies are on the NLRB’s radar. What is newsworthy, though, is when the NLRB considers a social media policy and concludes that it does not unlawfully infringe on employees’ rights to engage in protected concerted activity under the National Labor Relations Act.

Consider, then, Landry’s Inc., decided last week by the NLRB, as newsworthy.

In that case, the NLRB considered the following social media policy:

While your free time is generally not subject to any restriction by the Company, the Company urges all employees not to post information regarding the Company, their jobs, or other employees which could lead to morale issues in the workplace or detrimentally affect the Company’s business. This can be accomplished by always thinking before you post, being civil to others and their opinions, and not posting personal information about others unless you have received their permission. You are personally responsible for the content you publish on blogs, wikis, or any other form of social media. Be mindful that what you publish will be public for a long time. Be also mindful that if the Company receives a complaint from an employee about information you have posted about that employee, the Company may need to investigate that complaint to insure that there has been no violation of the harassment policy or other Company policy. In the event there is such a complaint, you will be expected to cooperate in any investigation of that complaint, including providing access to the posts at issue.

The Board concluded that the policy was lawful:

Employees reading the Respondent’s social media policy could reasonably conclude … that they are being urged to be civil with others in posting job-related material and discussing on social media sites their grievances and disagreements with the Respondent or each other regarding job-related matters.… There is no restriction in the social media policy against posting “personnel” information or “payroll information,” or “wage-related information”; and obviously, posting information that in common parlance is generally understood to be personal such as, for example, matters regarding social relationships and similar private matters, could result not only in morale problems but could also constitute “harassment” to which the Respondent’s social media policy refers. It is readily apparent that such postings would likely create enmity among employees in the workplace which could, in turn, adversely affect the Respondent’s business.

Why is this newsworthy? Because, for years, the NLRB has urged for an expansive reading of employer policies, suggesting that a hypothetical parade-of-horribles that could lead to union-related, or other protected concerted, activity renders any facially neutral workplace policy unlawful. In Landry’s, the Board is adopting (at least in this case) a more reasonable, real-world reading of a social media policy to conclude that because no employee could reasonably read the policy, in context, to unreasonably infringe on employees’ rights.

This case provides a good illustration of the fine distinctions the NLRB is drawing between lawful and unlawful social media policies, and provides a good reminder of the need for all employers to routinely review your own social media and other workplace policies for compliance.

WIRTW #365 (the “on the road again” edition)

It’s been a crazy week. I gave four different seminar presentations over an eight-day span:

• Last Wednesday I presented a two-hour FMLA/ADA update to the Southwest Safety Council.
• Monday evening I gave the keynote address at the Greater Cleveland Pest Control Association annual award banquet, scaring the pants off everyone about OSHA.
• Tuesday I presented a webinar on criminal background checks and Title VII
• Wednesday I opened the Northern Ohio Labor & Employment Conference with a discussion of emerging technology and employment law (i.e., BYOD, cyber-security, and social media).

Thanks to all who invited me to speak to your organizations. It is always my pleasure.

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

Discrimination

• 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo — via Dan Schwartz’s Connecticut Employment Law Blog
• For ADA and accommodating employee disabilities, think “Burger King” — via Eric Meyer’s The Employer Handbook Blog
• Why women are afraid to tell employers they’re pregnant — via Wonkblog
• Fired for What!? - The Great Popeye’s Fried Chicken Caper — via Phil Miles’s Lawffice Space
• Is Political Affiliation the New Black When it Comes to Discrimination? — via California Labor and Employment Defense Blog
• Is telecommuting a reasonable accommodation, or is it not? — via Robin Shea’s Employment & Labor Insider
• Telesh on EPLI’s Influence — via Workplace Prof Blog

Social Media & Workplace Technology

• If you’re horrible on the internet, Clear app could save your job — via The Verge
• Can an Employer Make Me Change My LinkedIn Photo? — via HR Examiner with John Sumser
• LinkedIn dodges a legal bullet — via Walter Olson’s Overlawyered
• The Dos and Don’ts of Work Email, from Emojis to Typos — via Harvard Business Review

HR & Employee Relations

• I walked in on employees having sex — and I think there’s a sex club in my office — via Ask a Manager
• Yelling at Co-Workers and Employees: Is It Ok? — via ERC’s HR insights Blog
• What Your Company’ Policy on Employee References? — via In House
• Is Thor an illegal immigrant? — via Law and the Multiverse
• How Commute Issues Can Dramatically Impact Employee Retention — via TLNT
• How to Build a Better Marijuana Policy — via Evil HR Lady, Suzanne Lucas
• Work Schedules are Damaging Lawyer Health — via Inhouse Blog
• Recovering From a Fraud Loss — via FRAUDfiles

Wage & Hour

• Do Lower Gasoline Prices Signal A New Wave Of FLSA Actions In The Energy Industry? — via Wage & Hour - Development & Highlights
• Docking Pay From Salaried, Exempt Employees Is Illegal…And Very Common — via Texas Employment Law Blog
• Beware Strangers Bearing Gifts! DOL Promotes “Free” National Safety Council “Cell Phone Policy Kit” — via Employment Law Lookout
• “Half-Time” Overtime: The Fair Labor Standards Act’s Fluctuating Workweek Method — via Wage & Hour Insights
• Is Your Employee Abusing Her FMLA Leave? — via The Emplawyerologist

Labor Relations

• Are employer codes of conduct meaningless in today’s NLRB climate? — via HR Hero Line
• Rival Unions Vie For Position At VW — via Labor Relations Today
• NLRB vs. Right-to-Work — via Ross Runkel Report
• Union Isn’t Liable For Members’ Posts To Private Facebook Group–Weigand v. NLRB — via Technology & Marketing Law Blog
• NLRB Wants Postal Service to Bargain Over the Impact of Data Breach — via Employer Advocate

Until next week…

“Stop harassing me!” = protected conduct to support retaliation claim, says 6th Circuit

What happens when the alleged perpetrator of sexual or other unlawful harassment is also the person to whom the victim lodges a complaint of harassment? If the alleged perpetrator later fires (or causes the firing of) the victim, has the victim engaged in protected conduct (opposition of the harassment) to support a retaliation claim? According to the 6th Circuit, in EEOC v. New Breed Logistics (4/22/15) [pdf], the answer is yes.

The jury concluded that Calhoun, a supervisor, sexually harassed three women (Hines, Pearson, and Pete), retaliated against them after they objected, and further retaliated against a male employee (Partee) “who verbally opposed Calhoun’s sexual harassment and supported the women’s complaints.” The evidence at trial was that Calhoun laughed and responded “that he wasn’t going to get in trouble, that he ran th[e] area, [and that] anybody who went to [HR] on him would be fired.” Calhoun then fired each of the four employees, claiming performance and attendance issues. 

As the threshold issue, the 6th Circuit had to determine whether complaints or objections made to the accused harasser constitute protected activity to support a retaliation claim. The 6th Circuit had little difficulty concluding that these four employees had engaged in protected activity:

We conclude that a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed…. Here, at the very least, all four complainants requested that Calhoun stop his sexually harassing behavior before their terminations. Consistent with our holding today, these complaints constitute protected activity.

While I agree that this holding makes sense, consider the awful position in which it could place employers who are lax with their termination decisions. An employer is vicariously liable for the actions of a supervisor or manager (e.g., harassment or retaliation). Thus, an employer will be liable for the rogue actions of a harasser trying to protect his or her turf from an objecting employee.

The solution? More diligence and scrutiny of termination decisions by HR departments and senior management. One cannot merely rubber stamp a manager’s or supervisor’s decision to terminate. If that individual harbors a discriminatory animus, we know that the cat’s paw will nab you. Now, we also know, per New Breed Logistics, that retaliation liability has the same potential issues when an alleged harasser is involved.

Bottom line: Do not rubber stamp termination decisions. Fact-check and confirm before allowing the company to pull the trigger.

A shy employee, a drug test, and the ADA meet in a bar…

Chris Lucas suffers from paruresis (aka, shy bladder syndrome). He claimed that he could not urinate in public bathrooms, and often would hold his bladder throughout his entire work day to avoid having to use the restroom at work. He also admitted, however, that if the urge become too overwhelming, his desire not to wet himself would overcome his fear of public urination.

Lucas’s employer, Gregg Appliances, maintained a drug-free workplace policy which required periodic testing of employees. Lucas’s promotion to a general manager position was contingent upon him passing just such a drug test. When Lucas (and his shy bladder) could not complete the drug test, the testing clinic reported to the employer: “PER COLLECTOR: DONOR LEFT COLLECTION SITE BEFORE COMPLETION OF DRUG TEST.” When confronted by management, Lucas never mentioned his difficulty urinating or his paruresis. Indeed, he did not even visit a physician for his condition until the day after Gregg Appliances fired him for failing to take the required drug screen.

In Lucas v. Gregg Appliances (S.D. Ohio 4/15/15), an Ohio federal court concluded that Lucas could not proceed with his ADA claim. The court dismissed Lucas’s claim for two reasons:

1. The employer had no knowledge of his disability. Lucas never told anyone at the employer before taking his drug test, or after he failed to complete the test. He only relayed his condition to his boss after he was fired. Just because an employer knows that an employee has a health problem (i.e., the inability to pee after drinking several glasses of water over the span of two hours) does not mean that the employer also knows that the employee suffers from an ADA-protected disability. Where the disability is not obvious, the burden is on the employee to make the employer aware.

2. Just as the burden is on the employee to advise of the existence of a disability, the burden also squarely rests on the employee to request a reasonable accommodation. Here, Lucas did not request any accommodation (a blood or hair test) until after his termination. If an employee fails to request a reasonable accommodation during his employment, he cannot later complain that the employer failed to provide an accommodation or otherwise participate in the interactive process.

The ADA does not require an employer to guess and play detective. Instead, it anticipates a collaborative conversation between employer and employee about disabilities and accommodations. The party that fails to take part in this conversation will usually be the one that ends up the loser in any ADA lawsuit.