Get in the zone … the no-blacks zone

Does Title VII permit an employer to staff its stores based on the racial composition of its customers? That’s the question at the heart of EEOC v. AutoZone, currently pending in federal court in Chicago.

In the lawsuit, the EEOC alleges that the auto-parts retailer transferred African-American employees to certain stores in the Chicago area based on its conception that its Hispanic customers preferred to interact with Hispanic employees.

According to Employment Law 360 [sub. req.], AutoZone claims that the EEOC cannot prove its claim because the transferees would have suffered no loss in pay, benefits, position, or responsibilities, and therefore suffered no adverse employment action under Title VII.

Meanwhile, the EEOC claims that this brand of segregation is the exact type of discrimination Title VII is supposed to prohibit: “Structuring a workforce or work assignments by race is at the core of what Title VII was enacted to combat. Autozone’s argument boils down to the proposition that an employer is free to segregate its workforce so long as it is careful to do so through lateral transfers. Title VII is not that narrow.”

It seems to me that even if the pay, benefits, etc. were exactly the same in both stores, we abolished “separate-but-equal” 61 years ago, and Title VII should not permit an employers to Plessy v. Ferguson its workforce for any reason.

For more on customer preference as discrimination, check out the following two posts from the archives:

• Customer preference does not protect employers from race discrimination claims 
• Customer preference and race discrimination—when the customer isn’t right

The “duck” test for independent contractors

Earlier this week, FedEx announced that it would pay an astounding $228 million to settle claims that it had misclassified drivers as independent contractors. This news comes on the heals on the Department of Labor’s announcement of pending guidance on independent contractor status.

Meanwhile, on the same day as the FedEx settlement, the Ohio Supreme Court issued its decision in State ex rel. WFAL Construction [pdf], which decided that under the facts presented, individuals working under a construction contract were “employees” for workers’ compensation purposes.

As a technical matter, in Ohio, R.C. 4123.01(A)(1)(c) lists 20 factors to determine whether a person is an “employee” for purposes of workers’ compensation; if 10 of those criteria are met, the worker is an employee. In WFAL Construction, the workers met the following 10 criteria:

1. The individuals were required to comply with instruction from either the owner or an onsite lead carpenter.
2. The services provided by these workers are integrated into the regular functioning of this employer as they do all of the work.
3. The named persons on the various timesheets and logs performed the work personally.
4. The individuals were paid by the employer.
5. Records that were available to the auditor showed that the same workers performed work repeatedly for the employer.
6. The individuals were paid for the specific number of hours worked on a weekly basis.
7. As the employer had a supervisor or foreman on the worksite if he was not present himself, the Committee finds that the order of work was determined by the employer.
8. Given the hourly payments, the workers would not realize a profit or loss as a result of the services provided.
9. The employer has the right to discharge any of these individuals.
10. There is no indication that any of the individuals would incur liability if the relationship ended.

Despite these specific criteria, I have reached the conclusion that the best test to determine whether a worker is an employee or an independent contractor is the “duck” test—if it looks like an employee, acts like an employee, and is treated like an employee, then it’s an employee. I know this isn’t clear guidance, but, much like how Justice Potter Stewart years ago famously defined obscenity, I think you know an employee when you see one. 

So, Department of Labor, bring on your guidance. I doubt it will be any clearer or more workable than my “duck” standard.

Legal marijuana remains off-limits in the workplace

It is likely that when Ohioans go the polls this November, we will have the opportunity to vote on whether to amend our state constitution to permit for the medicinal and recreational use of marijuana. Meanwhile, Cleveland.com reports that business groups are concerned over certain language in the proposed ballot measure, which, if passed, would require employers to accommodate their employees’ use of legally prescribed marijuana for medical purposes.

This language has employers questioning whether one could interpret the proposed amendment to mandate that employers permit certain employees to show up to work high, or, worse yet, use marijuana on-the-job.

To this end, business groups have been closely watching Coates v. Dish Network [pdf], a Colorado Supreme Court case asking whether an employer must accommodate an employee’s lawful use of marijuana under that state’s laws.

Thankfully, in a unanimous opinion, the Colorado Supreme Court held that the legality of marijuana under Colorado state law does not limit the right of an employer to otherwise regulate its use or effects in the workplace.

I have yet to read an opinion which suggests that legalized marijuana requires accommodation by employers for workplace use, even for medicinal purposes. Unless and until a court reaches that absurd conclusion, assume that employees have zero rights to show up to work high, even if personal off-duty marijuana use is legal under the law of your state, and even if the use is pursuant to a valid prescription to treat a medical condition.

Why don't discrimination laws protect everyone from abuse?

The Huffington Post asks the following question:

Laws Protect Certain Classes from Workplace Abuse: Why Not Everyone?

It’s a valid question. The law only protects an employee from being treated poorly at work if he or she happens to fall into a legally protected category, which, on the federal level, includes race, sex, religion, national origin, age, disability, genetic information, and military status. Depending in what state one happens to work, these classes might expand to include sexual orientation, gender identity, or marital status.

The article goes on to argue that “federal and state employment laws should be developed to protect all … from workplace bullying and companies from allegations of unfair treatment via clearly defined expectations for acceptable standards of behavior.”

Here’s the problem with this argument. You can’t legislate being an asshole. The world is full of them, and no set of laws, rules, or regulation will stop this mis-behavior. All it will do is either create an environment in which it is too expensive for employers to employ anyone because of the increased risk and attendant costs associates with firing anyone, or create an environment in which an employer fears managing anyone because of risk that the managed employee will cry “bully” and sue.

Yet, there is a tremendous amount of sex appeal behind the idea of anti-bullying laws. I believe, especially in the politically correct culture in which we currently live and work, that anti-bullying workplace laws are a likely inevitability. All it will take is one state to fall, and the rest will drop like dominoes. 

So, what is an employer to do? Shape up before a legislature requires it. Take a stand against bullies in your business. Treat all of your employees with the respect with which you would want to be treated if in their shoes. Hold your managers and supervisors accountable for any mis-treatment of employees, even if it falls outside one of the legally protected classes. Otherwise, the din of support for anti-bullying laws will grow into a roar that the government will not be able to ignore. While that would be good for my business, it most certainly would not be good for yours.

WIRTW #370 (the “I’m ready for my close-up”) edition

What are you doing at 8 pm tonight? I know what I’m doing. I’ll be watching Stossel on Fox Business Network. I was in New York on Tuesday taping a segment that airs on tonight’s show. Here’s the official description of my segment:

With politicians talking about job creation, you would hope government would make it easy to hire people. But the opposite is true. There are a thousand questions you may not ask when hiring someone… “how long have you been working?” or “how tall are you?” could get you into big trouble.

Pop some corn, or, if you’re out and about on a summer Friday eve, set your DVR, to get your seven-minute fix of Hyman on employment law.


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

Discrimination

• Post-trial maneuvering in a discrimination verdict — via Walter Olson’s Overlawyered
• “Must-haves” for your harassment investigation — via Robin Shea’s Employment & Labor Insider
• SCOTUS ruling on religious garb puts employers in a double bind — via HR Café
• Your employee has a fragrance allergy. What does the ADA require you to do? — via Eric Meyer’s The Employer Handbook Blog
• State of Ohio Jumps in and “Bans the Box” For All Civil Service Jobs — via TLNT

Social Media & Workplace Technology

• Keep God in Your Heart-and Off Your LinkedIn Profile — via Suzanne Lucas at Inc.com
• Zoo employee fired over “racist” social-media post — via wpxi.com

HR & Employee Relations

• OSHA and Workplace Violence — via The Emplawyerologist
• MOVE Act Introduced; Non-Compete Agreements Would Be Limited, if Passed — via Dan Schwartz’s Connecticut Employment Law Blog
• Enforcing a Noncompete Agreement Takes More Than Bluffing — via Michigan Employment Law Advisor
• Men Are Struggling With Work-Family Balance, Too — via Huffington Post
• Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review
• Online Background Check Disclosure Form Did Not Violate the FCRA — via Laconic Law Blog
• Employee Resigns: Walk Them Out the Door Or Let Them Work a Notice? — via Fistful of Talent
• 5 New Rules for the World of Work — via Blogging4Jobs

Wage & Hour

• SCOTUS takes another class action case — via Ross Runkel Report
• HR 101: Are You Classifying Your Independent Contractors Correctly? — via TLNT
• General Release May Not Preclude FLSA Claims Says Fifth Circuit — via The Wage and Hour Litigation Blog
• Five most targeted industries for government wage and hour audits — via California Employment Law Report
• Even for Hourly Workers, Calculating the “Regular Rate” Can Be Complex — via Wage & Hour Insights
• Intern Settlement Is a Blockbuster — via Minnesota Employment Law Report
• 3d Cir. Rules on FMLA Definition of Overnight Stay — via Delaware Employment Law Blog
• Court Imposes FMLA Catch-22 — via Donna Ballman’s Screw You Guys, I’m Going Home

Labor Relations

• How the NLRB’s “Quickie” Election Rule Is Impacting Workplace Elections — via TLNT
• “6th Circuit says Michigan tribe subject to federal labor laws” — via How Appealing
• English-Only Rules – A New Unfair Labor Practice — via Employment Essentials
• Hey NLRB: WTF? That Means “Why The Foolishness?” What Did You Think it Meant? — via The Employment Brief
• Why labor groups genuinely believe they can unionize McDonald’s one day — via Wonkblog

Beware the email chain of fools

A software engineer rejected for a job by GoDaddy is suing the company for discrimination. Why does he believe that the company discriminated against him? According to USA Today, he read it in the email chain included in his otherwise vanilla rejection email.

The e-mail…, which appears to be sent from a group titled the “GoDaddy Recruiting Team,” begins with a tame form letter, explaining that Connolly had not been selected for a job as a mobile IOS developer. But the note he said he saw below it in the e-mail chain packed an unusual punch.

It read, “about keith he’s great for the job in skills but he looks worse for wear do we really want an obeese (sic) christian? is that what our new image requires of us.”

Like many before it, GoDaddy says that either it was hacked or the email was fabricated. Some computer forensics will sort out the truth of that defense. If it turns out that the email is legit, GoDaddy might want to rethink its “we are not offering any kind of settlement or an apology” position.

Do I really need to tell you not to ever put something like “do we really want an obese Christian” in an email. Some things are better left unsaid, or, more to the point, un-typed. And, for god’s sake, please read those emails (all of them) before you click send. It makes my job a whole lot easier defending you without that smoking gun. 

And, before my employee-advocate readers get all over my case for defending one’s right to discriminate merely by keeping silent, yes, in an ideal world no one would think this way. But, my job is to defend the companies that have the misfortune of employing those that do. If GoDaddy is wrong, and one of its recruiters did send that email, then it should stand by its pronouncement that it is “proud to be an Equal Opportunity Employer” and settle, period.

Racist comments as protected concerted activity (really!)

Racism at work cannot be tolerated, right? So here’s a quick quiz. Assume you hear a white employee yelling the following at black co-workers:

• “Hey, did you bring enough KFC for everyone?” and
• “I smell fried chicken and watermelon!”

Do you: a) fire the offending employee; or b) brush it off? 

I’m going to lay pretty decent odds that most of you opted for choice “a.” Would you believe, though, that according to one NLRB judge, the answer depends on whether the racist employee is walking a picket line.

In Cooper Tire & Rubber Co. (6/5/15) [pdf], Administrative Law Judge Randazzo concluded that, while clearly racist, offensive, and inappropriate, the employer violated the NLRA when it fired the offending employee because he made the remarks in the context of a strike and there were no corresponding threats of violence:

Runion’s “KFC” and “fried chicken and watermelon” statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.… The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.

Thus, an employee is justified, under the NLRA, to be as racist as he wants to be as long as: 1) the comments are made in the context of otherwise protected, concerted activity, and b) the comments are not accompanied by violence or overt threats of violence.

Although the breadth of the NLRB’s current iteration’s interpretation of “protected concerted activity” should surprise no one, I am stunned that this ALJ has gone this far. 

1. No employee should be subjected to this type of abuse, picket line or no picket line, and it is shameful that this type of misconduct is condoned.
2. Employers should not be forced into a Hobson’s Choice between the NLRA and Title VII. Retaining the offender may save the employer from liability under the NLRA, but it won’t do the employer any favors if the victim pushes the issue under Title VII.

If nothing else, this case is a scary reminder of how far the NLRB and its judges will go to fine protected concerted activity. Employers, you are warned/

DOL set to publish guidance on independent-contractor status

Later this morning, I’ll board a flight for New York City to tape a segment for John Stossel’s Fox News show, to air Friday at 8 pm on Fox Business. We’ll be discussing the over-complexity of labor and employment laws, and their over-regulation of American businesses.

I’m certain one topic to be covered is our wage-and-hour laws. Serendipitously, according to Employment Law 360 [subscription required], Department of Labor Wage and Hour Division administrator David Weil recently announced that he will shortly publish an “administrator interpretation” to clarify who qualifies as an independent contractor.

The distinction between employee and contractor continues to beguile employers, and is ripe for problems under both wage-and-hour laws (among other legal entanglements). Individuals continue to file multi-million dollar class-action lawsuits claiming mis-classification as contractors cost them years of unpaid overtime. And, courts continue to take a hard line against companies that try to skirt their legal responsibilities via these mis-classifications.

Is it too much to hope for a reasonable interpretation from administrator Weil that permits bona fide contractors to remain classified as such? He speaks of a "holistic," as opposed to "mechanical" approach, which "requires a careful consideration of the economic realities and multiple aspects of the relationship." Expect a fuzzy standard with lots of gray area, which will continue to cause employers fits. Or, in other words, expect the status quo to continue, with employers who classify all but the clearest of workers as employees taking a huge wage-and-hour gamble.

Defining the three-headed associational disability claim

You likely know that the ADA protects employees from discrimination “because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.” But did you know that the ADA has three different theories to define this associational disability?

1. Expense (the cost of insuring the associated disabled person under the employer’s health plan);
2. Disability by association (a fear by the employer that the employee may contract the disability, or the employee is genetically predisposed to develop a disability that his or her relatives have); and 
3. Distraction (the employee is inattentive at work because of the disability of the associated person).

In Williams v. Union Underwear Co., (6th Cir. 6/5/15) [pdf], the court rejected the plaintiff’s attempt to use each of these theories to challenge his termination after his wife was diagnosed with Wagner’s Vascular Disease, which weakened her immune system. Other than the coincidental timing between the the wife’s diagnosis and the alleged beginning of Williams’s adverse treatment at work, the court could not find any other evidence of disability discrimination. Absent something in addition to timing, the court could not conclude that Williams had presented sufficient evidence to get his discrimination claim to a jury.

We, as employers, often treat employee’s with family medical issues with kid gloves. We not only worry about potential liability under the ADA, but also the FMLA. Yet, these employees are not bulletproof. In Williams, the plaintiff had suffered years of marginal performance, and the employer had enough. Without something in addition to the mere fact that his wife suffered from a rare disease, this court was unsympathetic to his claim, which should provide hope to employers that want to hold all employees accountable to reasonable performance standards.

WIRTW #369 (the “see me, hear me”) edition

It’s been awhile since I’ve updated everyone on when and where you can hear me speak, and I’ve got a bunch coming up in the next few weeks. So, here you go:

• Later today, I’m presenting on managing generational issues in the workplace at the Lakeland Community College 8th Annual Small Business Symposium.
• On June 10, at 2 pm, I’m presenting a webinar on how to create a safer, OSHA-compliant workplace, for HRdirect.
• On June 16, at noon, I’m presenting a webinar on OSHA compliance and workplace safety, for the West LegalEdcenter.
• On June 17, at 1 pm, I’m part of a panel webinar on the NLRB’s new “quickie” election rules, for Strafford.

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

Discrimination

• Five harassment “must haves” for employers — via Robin Shea’s Employment & Labor Insider
• Caitlyn Jenner’s Unveil Forces the Discussion of Transgender at Work — via Blogging4Jobs
• Employer’s search for “devious defecator” backfires after suspects sue under genetic privacy law — via ABA Journal
• Is It OK To Ask An Older Job Candidate If She Can Handle Supervising Young People? — via Evil Skippy at Work
• New DOL rules could blacklist fed contractors — via Business Management Daily
• Allergic At Work Is Not Allergic To Work — via The Labor Dish
• This employer had a “no pregnancy in the workplace” policy. No, really. It did. — via Eric Meyer’s The Employer Handbook Blog
• Employee Stressed Out By Manager Is Not Disabled And May Be Terminated — via Employment Law Worldview
• Now you know: rent two not one units for employee lodging — via Overlawyered

Social Media & Workplace Technology

• Should Companies Be Giving Fitbits To Employees? — via Workplace Diva
• How Wearable Technology Will Affect the Workplace — via Employment Intelligence
• More Bosses Expected To Track Their Staff Through Wearables In The Next 5 Years — via Forbes
• The Inbox – Orwell’s Big Brother Has An App For That — via Suits by Suits
• Aspects of Private Social Media Groups May Be Protectable Under Illinois Trade Secret Law — via Trading Secrets

HR & Employee Relations

• Flexibility and Job Satisfaction: Are Employers Listening? — via Next Blog
• June 1, 2015, Hazardous Communication Requirements Now In Effect — via OSHA Law Blog
• Is Your Employee’s Injury Reportable Under OSHA? — via The Emplawyerologist
• Planning Maternity or Paternity Leave: A Professional’s Guide — via Harvard Business Review

Wage & Hour

• How Fowl! Is An Employee’s Text and His Girlfriend’s Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast… — via Jeff Nowak’s FMLA Insights
• Can An Employee Assert State Law Wage Claims Based on Alleged Wrongful Tax Withholding? — via Minnesota Employer
• Department of Labor Seeks Information about Employees’ Use of Smartphones — via Wage & Hour Insights 
• Survey Shows Corporate Counsel Especially Fear Class Actions: With Good Reason! — via Wage & Hour - Development & Highlights
• General Release Obtained By Defendant in Non-FLSA State Court Case Did Not Waive FLSA Claims — via Overtime Law Blog

Labor Relations

• NLRB Issues Charge Against Ikea — via Labor Relations Today
• NLRB Ambush Election Rules Upheld by Texas Federal Court — via Hunton Employment & Labor Law Perspectives™
• Worse Than Feared … NLRB Reports First Month of Ambush Election Rules Yields More Petitions, Dramatically Quicker Elections — via Management Memo
• Federal Court affirms that federal contractors have to inform workers of unionization rights — via Mike Haberman’s Omega HR Solutions

Transgender rights take center stage

It’s been a big week for the rights of transgender Americans.

• Caitlyn (née Bruce) Jenner had her coming out party on the cover of Vanity Fair and become the quickest person to reach 1 million followers on Twitter, in less than four hours, besting President Obama’s record from two weeks ago.

• The EEOC published a guide addressing the rights of LGBT employees working in the federal sector [pdf], and continues to litigate cases under Title VII’s sex-discrimination prohibitions on behalf of transgender employees.

• OSHA published a statement of “best practices” for bathroom access for transgender employees [pdf], clarifying that employees should be entitled to use the bathroom of the gender with which they identify, and that no employer should require an employee to use a specific gender’s bathroom, or a segregated transgender-only bathroom facility.

While we wait for the law the catch up to society’s opinion on LGBT rights (i.e., same-sex marriage rights and official statutory extension of Title VII’s protections to LGBT employees), our federal agencies are doing the best they can to modernize these laws for us. If you are still discriminating against LGBT employees, it’s time to stop. You are officially behind the times. It was not that long ago that LGBT rights were a joke. Now, we are on the verge of a breakthrough. Are you going to ride the wave, or hold onto the jam of the door that Caitlyn Jenner just kicked down kicking and screaming. The choice, for now, is yours, unless you run afoul of the EEOC, OSHA, or a court, each of which is doing is best to do what Congress has, thus far, refused.

Did the 6th Circuit just guarantee jury trials in off-the-clock wage/hour cases?

One of the most difficult things to do is prove a negative. Yet, this is exactly the problem that employers face when defending wage and hour cases in which the employee alleges work performed off-the-clock. The employer says that the time clock defines the paid limits of the workday, while the employee says that s/he should be compensated for work performed outside the parameters of those clock-ins and clock-outs.

In Moran v. Al Basit LLC (6/1/15) [pdf], the 6th Circuit was faced with a simple question—does an employee need something other than his or her own testimony to establish an entitlement to unpaid compensation under the FLSA?

Sadly, the 6th Circuit ruled in the employee’s favor.

Plaintiff’s testimony coherently describes his weekly work schedule, including typical daily start and end times which he used to estimate a standard work week of sixty-five to sixty-eight hours.… However, while Plaintiff’s testimony may lack precision, we do not require employees to recall their schedules with perfect accuracy.… It is unsurprising, and in fact expected, that an employee would have difficulty recalling the exact hour he left work on a specific day months or years ago. It is, after all, “the employer who has the duty under § 11(c) of the [FLSA] to keep proper records of wages [and] hours,” and “[e]mployees seldom keep such records themselves.”

This ruling is scary, and has the potential to work extortionate results on employers. If all an employee has to do to establish a jury claim in an off-the-clock case is say, “The employer’s records are wrong; I worked these approximate hours on a weekly basis,” then it will be impossible for an employer to win summary judgment in any off-the-clock case.

Employers, the cost of defending wage-and-hour cases just went up, as did the risk for businesses. Even meticulous wage-and-hour records might not save you from a foggy memory of a disgruntled ex-employee.

#SCOTUS requires employers to stereotype in ruling for EEOC in hijab-accommodation case

Yesterday, the United States Supreme Court ruled that an employer violates Title VII’s religious accommodation requirements if the need for an accommodation was a “motivating factor” in its decision, regardless of whether the employer had actual knowledge of the religious practice or its need to be accommodated.

The case, EEOC v. Abercrombie & Fitch Stores [pdf], is an unambiguous win for religious freedoms, while, at the same time, places an added burden on employers to make educated guesses about applicants’ and employees’ potential needs for workplace religious accommodations.

Abercrombie involved a conflict between a hijab-wearing Muslim job applicant and the employer’s “look policy.” The unusually terse seven-page opinion (of which only a little more than three was dedicated to actual legal analysis) focused on the difference between motive and knowledge in explaining its holding:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.…

For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. 

So, if knowledge is irrelevant, what is an employer to when faced with one’s potential need for a religious accommodation? More the point, isn’t an employer faced with having to make educated guesses (based on stereotypes such as how one looks or what one wears) of the need for an accommodation? Title VII is supposed to eliminate stereotypes from the workplace, not premise the need for an accommodation on their use. And that’s my biggest critique of this opinion—it forces an employer into the unenviable position of applying stereotypes to make educated guesses.

Nevertheless, employers are stuck with the Abercrombie “motivating factor” rule as the rule for religious accommodations moving forward. Thus, let me offer a simple suggestion on how to address this issue in your workplace—talk it out. Consider using the following three-pronged approached to ACE religious-accommodation issues in your workplace.

• Ask: Even if an employee comes to a job interview wearing a hijab, it’s still not advisable to flat-out ask about his or her religion. Nevertheless, if you believe an applicant’s or employee’s religion might interfere with an essential function of the job, explain the essential functions and ask if the employee needs an accommodation. 

• Communicate: If the individual needs an accommodation, engage in the interactive process. Have a conversation with the applicant or employee. Explain your neutral policy for which an exception will have to be made. Talk through possible accommodations, and decide which accommodation, if any, is appropriate for your business and for the individual.

• Educate: Do you have written policy on religious accommodation? Of course, merely having a policy is never enough. You must communicate it to your employees, explain its meaning and operation, and enforce it when necessary.

This decision is a potential game-changer for employers. Make sure you understand the implications of Abercrombie, so that you are as accommodating as the law requires.

Image courtesy of Jeffrey Weston’s Ape, Not Monkey
http://www.apenotmonkey.com/2012/04/09/religious-accommodation/

6th Circuit: reasonable belief about unlawful conduct enough for SOX retaliation

It’s hard to imagine that in the eight-plus years I’ve written this blog, there is any area of employment law that on which I have not yet touched—except, I think, the Sarbanes-Oxley Act. Today, that changes.

For the uninitiated, Sarbanes-Oxley (or SOX) is a federal statute, enacted in reaction to a several corporate and accounting scandals (think Enron), which establishes conduct standards for public company boards, management and public accounting firms.

In Rhinehimer v. U.S. Bancorp Investments, Inc. (6th Cir. 5/28/15) [pdf], the 6th Circuit addressed the standard for protected conduct under SOX’s anti-retaliation provisions. Does the plaintiff have to prove an underlying fraud, or it is sufficient for the plaintiff to have a reasonable belief that a fraud was committed?

The facts in Rhinehimer are not complicated. Prior to taking a disability leave, Rhinehimer, a certified financial planner, transferred some of the assets of a long-term, elderly client into low risk, conservative investments. While on leave, Rhinehimer’s assistant alerted him to the fact that a co-worker moved some of those assets into riskier investments. Believing those moves to be contrary to the client’s estate plan, Rhinehimer sent an email to his supervisor complaining about the transactions. Upon his return from leave, Rhinehimer was disciplined for his “unprofessional” email. That email spawned an investigation by FINRA. When Rhinehimer informed his employer that he had retained an attorney in response to the FINRA investigation, he was fired.

At issue on appeal was whether a plaintiff claiming retaliation under SOX must allege the specific elements of fraud relating to the underlying transaction, or if a reasonable, but mistaken, belief about the illegality of the underlying (mis)conduct will support the retaliation claim.

The 6th Circuit held for the more liberal proof standard.

Although it is true that Plaintiff had no specific knowledge of whether Harrigan had omitted or misrepresented material information in his communications with Purcell, much less any knowledge of whether Harrigan did so intentionally or with reckless disregard, these gaps in Plaintiff’s knowledge are immaterial. Even if, in fact, everything about the trades were above board, courts universally recognize that [SOX] protects employees who reasonably but mistakenly believe that the conduct at issue constitutes a violation of relevant law.… 

The information that was available to Plaintiff was more than adequate to allow him reasonably to believe that the trades were the result of conduct constituting unsuitability fraud. When USBII retaliated against him for reporting that information, it therefore violated Sarbanes–Oxley’s whistleblower protections.  

If you are a publicly-trade company, employees who lodge complaint about financial improprieties or other financial issues require special treatment. If faced with one of these complaints, do not get hung up on the rightness or wrongness of the complaining employee’s belief about the illegal conduct, because, if you later fire that employee, it appears the reviewing court will not care. 

WIRTW #368 (the “let's go Cavs” edition)

It’s t-minus six days until championship fever sweeps the most victory-starved city in America. Let’s go Cavs!

A photo posted by Cleveland Cavaliers (@cavs) on May 27, 2015 at 12:02pm PDT

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

Discrimination

• Being “Qualified” Doesn’t Necessarily Mean Being Able to Perform “Essential Functions” of Job — via Dan Schwartz’s Connecticut Employment Law Blog
• Here’s Why Your Company Should Offer Paid Maternity Leave — via TLNT
• Private Employers Likely to Face Gender Identity Discrimination Claims as Federal Government Continues to Expand Title VII Protections to Transgender Employees — via Employer Defense Law Blog
• EEOC Will Now Process and Investigate Sexual Orientation, Transgender, and Gender Identity Claims — via Randy T. Enochs’s Wisconsin Employment & Labor Law Blog

Social Media & Workplace Technology

• Five Key Social Media Questions All Health Care Employers Should Consider: Question #3: How Do I Protect Patient Privacy On Social Media? — via netWORKed Lawyers
• Those without Facebook accounts need not apply. Well, maybe not in one state. — via Eric Meyer’s The Employer Handbook Blog
• Doing online “reputation management”? — via Walter Olson’s Overlawyered
• “Sixth Circuit creates circuit split on private search doctrine for computers” — via How Appealing
• What Companies Should Ask Before Embracing Wearables — via Harvard Business Review
• Cyber Insurance: Why you should require certain vendors to have it — via Privacy and Data Security Insight
• Don’t Tweet On Me! — via Employment Law Lookout
• Texting in the office: a problem, or just yet another distraction? — via Business Management Daily

HR & Employee Relations

• American Ninja Warrior – Lessons on Family, Life, & Work — via Rob Schwartz’s dadworking
• No Matter What Scrabble Says, Don’t Ever Use These 10 Words at Work — via Evil HR Lady, Suzanne Lucas
• Hilariously honest job posting admits the pay is ‘sh*t’ and the boss is a ‘d*ckhead’ — via Boy Genius Report
• The Pros and Cons of Mandatory Workplace Arbitration — via Abovethelaw.com
• Work/Life Balance and Lessons from Managing Two Careers — via YourHRGuy.com
• Millennials may not be the radicals you think — via Mike Haberman’s Omega HR Solutions
• Slowly but surely, workplace bullying laws are becoming a reality in the U.S. — via Minding the Workplace

Wage & Hour

• Wage and Hour Division Seeks Information on Smartphones’ Impact on Hours Worked — via The Wage and Hour Litigation Blog
• Wage-Hour Audits: Lessons Learned From Chipotle’s Heartburn — via The Wage and Hour Litigation Blog
• An Open Letter to the Department of Labor Concerning The Proposed Changes To Exemptions for White Collar Regulations — via Wage and Hour Law Update
• Third Circuit Defines “Overnight Stay” for FMLA — via Phil Miles’s Lawffice Space
• FMLA Leave: sometimes, it is about putting the pieces together — via Employer Law Report
• OSHA Publishes New Whistleblower Investigations Manual — via Employment Law Lookout
• OSHA Issues Spring Regulatory Agenda — via OSHA Law Blog
• The ACA Today: Where it Stands and How it Affects Employers — via ERC Insights Blog

Labor Relations

• General Counsel Responds to Labor Practitioners’ Questions — via Vorys on Labor
• Regional Directors Report Data on The NLRB’s Amended Election Rules After One Month – Court Challenges Continue — via Health Employment and Labor
• Video: What every new Wal-Mart employee hears about why unions are terrible — via Wonkblog
• Board Dismisses Six ULP Charges Against Am. Apparel — via Labor Relations Today
• Update: What Recent NLRB Activity Means for Employee Handbooks and Policies — via Intown Employer
• Is the NLRB is expanding its list of “inherently” concerted protected activities under Section 7? — via Employment Law Matters
• How We’re Voting on the Union, and Why — via Deadspin

A lesson on the importance of uniformity in performance standards

Under the ADA, and employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

What happens, however, when an employer holds a disabled employee to a higher performance standard than non-disabled counterparts? Consider Wolffram v. Sysco Cincinnati (S.D. Ohio 5/19/15).

The plaintiff in Wolffram was a diabetic, and, as a result, needed extra time for bathroom breaks during the work day. Those bathroom breaks caused Wolffram’s performance to suffer on Sysco’s electronic performance monitoring system. Because Wolffram consistently fell below the minimum performance requirements, Sysco ultimately terminated him. Nevertheless, he defeated Sysco’s summary judgment motion on his disability discrimination claim. How? Because he claimed that other non-disabled employees were given more slack on the performance standards, that other employees “cheated” the system but were not disciplined or terminated.

Employers, it’s okay to have performance standards. It’s even okay to require that each of your employees, disabled and non-disabled, meet those standards. When you start letting those standards slip, however, you become exposed to claims from disabled employees who cannot otherwise meet the requirements because of their disability. Yet another example of how the EEO laws require uniformity of application in your workplace.

“You’re late again!” “Talk to my lawyer.”

I’m timely to a fault. I hate being late, and go to great lengths to ensure that I am never tardy for anything. I think it’s annoying to those around me, or least those I live with. Just ask my kids.

Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.

Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.

Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.

Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.

Putting together the puzzle on off-duty emails and overtime

Employers, I can see the writing on the wall, and it’s not looking good for your continued reliance on your non-exempt employees using their smartphones off-the-clock.

In the past few days, this issue has picked up a ton of momentum. First, the Wall Street Journal ran an article entitled, “Can You Sue the Boss for Making You Answer Late-Night Email?” Then, the Wage & Hour Litigation Blog reported that the Department of Labor’s Wage & Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work outside of scheduled work hours.” Finally, the ABA Journal reminded us that the same Wage & Hour Division will likely raise the salary floor for exemption eligibility from $23,600 a year to $50,000 a year. This significant bump in the salary test will remove a large chunk of your employees from many of the FLSA’s key overtime exemptions.

What does all this mean? It means that you need to take a long, hard, look at which of your employees you are requiring to connect when they are “off-the-clock.” If you are requiring your non-exempt employees to read and respond to emails after their work day “ends,” you need to examine whether the FLSA requires that you pay them for that time (more often than not at a 1.5 overtime premium).

I’m pretty certain that the Department of Labor consider this time compensable, but I’m not so sure. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

Nevertheless, if you want to eliminate the risk over this issue, I suggest you consider a couple of steps:

1. Audit all of your employees for their exempt status. This audit will ensure that you have your employees properly classified as exempt versus non-exempt.
2. Consider implementing an email curfew for your non-exempt employees (which has its own pros and cons).

This issue is not going away any time soon, and illustrates the difficulty the law has keeping up with the stunning pace of technology.

For more on this important issue, I recommend Just how nervous should companies be about FLSA lawsuits over employee smartphone use? (Hint: very) via Eric Meyer’s Employer Handbook Blog.

New poll reveals continued risk in Googling job applicants

According to a recently published Harris Poll, 52 percent of employers use social media to research job candidates. This number is up from 43 percent in 2014 and 39 percent in 2013.

What information are employers looking for?

• 60 percent are looking for information that supports their qualifications for the job.
• 56 percent want to see if the candidate has a professional online persona.
• 37 percent want to see what other people are posting about the candidate.
• 21 percent admit they’re looking for reasons not to hire the candidate.

The same poll found that 35 percent of hiring managers who use social media to screen applicants have sent friend requests or otherwise attempted to connect with applicants online. As stunning as that number is, it’s even more stunning that 80 percent report that job seekers report accepting such requests. 

Employers, please stop the insanity. I’m not treading new ground here by telling you that you are taking a huge risk by Googling or Friending applicants without proper checks in place to guard against the disclosure of protected information. “What types of information,” you ask? How about information about the individual’s medical history or religious preference, for starters. 

Yes, there are a host of reasons to engage in these searches. Indeed, I believe that, in a world of increasing transparency online, employers take a risk by not including Facebook in their pre-employment background searches. But, it needs to be part of larger background screening program. And, you need to ensure that you have the right checks in place to keep protected information (such as EEO stuff) as far away from the decision makers as possible. 

How do you do this? Train someone external to your hiring process to perform the searches, and provide a scrubbed report to those internal to the hiring process. These scrubbed reports should be void of any protected information, while including any info relevant to the hiring decision (such as whether the applicant has ever trashed an ex-employer online, or disclosed an ex-employer’s confidential information, or exhibits poor judgment by posting inappropriate or harassing stuff).

And, for god’s sake, please stop Friending job applicants. It’s just plain creepy.

Employment Law Blog Carnival: The “Wreck of the Old 97” Edition #ELBC

On September 27, 1903, the Old 97, a Southern Railway mail train running between Washington DC and Atlanta, Georgia, derailed near Danville, Virginia. The wreck inspired a famous ballad (most famously covered by Johnny Cash and Hank Williams III), which, in turn, inspired the Old 97’s to name their band some 70 years later.

I’m not shy with my love for the Old 97’s. Part of my adoration stems from how great their music is. And it’s not just the jangly vibe that kills on an album, or in a bar, or in a concert hall. Rhett Miller writes some of the best lyrics you will ever find, with most songs focusing on love, heartache, booze, or some combination of the three. The rest of my love stems from how cool they’ve been to my daughter, Norah (here and here).

Regardless the reason, my favorite band gets billing as the honoree of this month’s Employment Law Blog Carnival, as we look at the month’s best blog posts through the swarthy lens of some of the Old 97’s best songs.

Victoria

This is the story of Victoria Lee
She started off on Percodan and ended up with me
She lived in Berkeley ’til the earthquake shook her loose
She lives in Texas now where nothin’ ever moves

Poor Victoria Lee had a rough go of it. Narcotics and one-night stands. What if your corporate wellness program reveals an employee like Victoria. Employment Essentials has some suggestions, in The EEOC Asks: Is Your Corporate Wellness Program Really Voluntary?


The New Kid

The new kid, he’s got money
The money I deserve
He’s got the goods
But he’s not good for his word

This song hold a real special place in my heart (see above, about my daughter). When you hire a new employee, do you know how to handle trade secrets and restrictive covenants? Jesse R. Dill at Walcheske & Luzi, in Wisconsin Supreme Court Adds New Twist to Restrictive Covenant Law, and Heather Bussing at HR Examiner, in People Are Not Trade Secrets, offer some suggestions.


Over the Cliff

Please don’t call me cool just call me, “A⌇⌇hole”
’Cause I will be a beggar not a king
And the devil don’t care if you’re a fish or you’re a stick
Yeah, I’m goin’ over the cliff

Has the NFL gone over the cliff with Deflategate? Did the league screw the pooch by choosing the wrong investigator? Lorene Schaefer’s Win-Win HR, in Given the Stakes, Should the NFL Have Selected a Different Investigator in Deflategate?, has some thoughts on what Roger Goodell should have done.


Wish the Worst

I hope you crash your momma’s car
I hope you pass out in some bar
I hope you catch some kinda flu
Let’s say I wish the worst for you

Crashed cars and the flu are certainly bad. The Mad Pooper, though, is clearly worse, says Eric Meyer’s Employer Handbook Blog, in Well, that stinks! Doo-doo creates a discrimination claim.


Four Leaf Clover

I got a lucky silver dollar
My granddad gave it to me now he’s dead
Times like this I wish that I could join him
Might just stop this pounding in my head

How lucky will franchisors feel when the NLRB finally clarifies its stance on joint employers? Phil Miles’s Lawffice Space shares NLRB GC on Joint Employers.


Every Night Is Friday Night [Without You]

Now I’m no saint
But I ain’t such a freak
On the days of the week
I work hard, hard

If an employee works hard, but feels he or she is getting the short end of the pay stick, will the FLSA cover their oral complaints? Doug Hass’s Wage & Hour Insights offers Second Circuit Extends FLSA Anti-Retaliation Provision to More Oral Complaints.


Niteclub

Eighteen-hundred miles from this old niteclub
A girl is turning twenty-two today
How am I supposed to entertain you?
My fingertips are worthless when my mind’s so far away

Long distance relationships certainly present their problems. What about remote employees? Read 6th Circuit Holds That Regular and Predictable On-Site Job Attendance is an Essential Function via Randy Enochs’s Wisconsin Employment & Labor Law Blog


Question

Some day somebody’s gonna ask you
A question that you should say yes to
Once in your life
Maybe tonight I’ve got a question for you

“Question” might be (is?) the most romantic song ever written. Meanwhile, John Holmquist, at his Michigan Employment Law Connection, warns about another (much less romantic) question, Arbitration … be careful what you ask for, while Donna Ballman, at her aptly titled Screw You Guys, I’m Going Home, asks, What Did The Florida Legislature Do For Employees? Diddly squat, with one silly exception.


Let’s Get Drunk & Get It On

Take you to a cheap hotel out on the interstate
Well you look so great to me
This is the perfect place for a rendezvous
Its got a rotten view but the ice is free
Let’s drink whiskey and do it
all night long
Let’s get drunk
and get it on

Believe it or not, “Let’s Get Drunk…” is also a romantic song; don’t let the catchy title fool you. Be careful about getting it on at work, warns Dan Schwartz, at his Connecticut Employment Law Blog, in 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo.


Murder (Or A Heart Attack)

And I told the neighbors, I put pictures up
And handed out some flyers at the show
And the whole town speculating
Situations could’ve been avoided if I’d only shut the window

One of the band’s biggest hits tells the story of a lost cat that escapes through an open window. You can imagine the investigation that followed to bring the kitty home. “What about investigations at work,” you say? I have you covered, via Ari Rosenstein’s Small Biz HR Blog, in Conducting Effective (and Legal!) Workplace Investigations, and Stuart Rudner at Rudner McDonald, in Employees: Honesty in the Course of a Workplace Investigation Pays Off.


Doreen

When I first met Doreen
She was barely seventeen
She was drinking whiskey sours in the bar

Sex with a minor at work? Check. What if it happens only once? Did the 4th Circuit’s recent decision spell certain doom for employers? Robert Fitzpatrick on Employment Law provides a nice summary, in Fourth Circuit Overturns Decade of Precedent in Blockbuster En Banc Hostile Work Environment Decision, while Robin Shea’s Employment & Labor Insider, in Is this new harassment decision the end of the world for employers?, thinks the reaction to this decision is way overblown.


Timebomb

I got a timebomb in my mind Mom
I hear it ticking but I don’t know why
I call the police but they don’t like me
I hear ‘em whispering when I walk by

This month’s carnival ends the same way every Old 97’s show ends, with the raucous riffs of Timebomb, from 1997’s Too Far to Care. If you have a timebomb in your workplace, I bet the FMLA has something to do with it. Janette Levey Frisch’s The EmpLAWyerologist suggests how to handle an employee abusing FMLA, in Is Your Employee Abusing Her FMLA Leave?

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Philip Miles, author of Lawffice Space and all around good guy, will host next month’s Employment Law Blog Carnival, on June 17. If you want to participate, email Phil a link to your employment-law-related blog post by June 12.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with edition #368.