Ohio’s attempt at an off-duty conduct law creates many more problems than it solves

It has become increasingly difficult to separate our private lives from our professional lives. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer.

Ohio is not one of these 29 states. Senate Bill 180, however, is looking to change that.

The other side of the coin on the appropriate response to harassment

Last week I discussed the importance of a timely and effective remedial response by an employer to an employee’s harassment complaint. Today, I examine the other side of the coin—what happens when an employer does not take proactive steps to eliminate harassment from the workplace.

WIRTW #386 (the “onion” edition)

I’ve the reading the Onion for years. It’s consistently funny, often offensive, and seldom disappoints. Here’s some quick hits (all, surprisingly, SFW) published by the Onion over the past year.

• Impressive New Hire Figures Out Bare Minimum Of Work Job Requires On First Day
• Boss Able To Seamlessly Blend Constructive Criticism With Personal Attacks
• Company Flat-Out Asks Female Candidate How Much Mileage They Can Get Out Of Her Before She Has Baby
• Jeff Bezos Assures Amazon Employees That HR Working 100 Hours A Week To Address Their Complaints
• HR Director Reminds Employees That Any Crying Done At Office Must Be Work-Related
• HR Sends Out Reminder Email About Not Scrawling ‘Revenge’ In Blood In Conference Room

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

Compensable working time : FLSA :: Disability : Pre-2009 ADA

Think back to when you took your SATs, many years ago—number-2 pencils, plastic school chairs and laminate-topped desks, florescent lights, nervous sweat, and, the bane of many a high-schooler, the analogies that comprise so much of the SAT’s verbal section. Remember “dog : bark :: cat : meow”?

Today, I am going to propose an employment-law, wage-and-hour analogy. It goes like this:

Compensable working time : FLSA :: Disability : Pre-2009 ADA

What does this mean (and how dare I make you think about your SATs for the first time in forever)?

John Oliver on OSHA (and a not-so-subtle shout-out to my firm’s new OSHA blog)

On this week’s Last Week Tonight, John Oliver gives OSHA a pass on its slack investigations of North Dakota oil field accidents. He blames OSHA’s inactivity on its lack of resources coupled with the oil companies’ use of subcontracted employees.

Just because harassment is offensive doesn’t make it illegal

Clifford Harris is a practicing member of the Voodoo religion. His co-workers at Electro-Motive Diesel often expressed their opinion about his religion, calling him “crazy” and describing it as “evil”. (For what it’s worth, they might not have been that off base—Harris once got called into a meeting with his supervisor after he was accused of blowing Voodoo dust on a co-worker.)

Be careful what you email (yes, this is a lesson I need to keep repeating)

Two USERRA posts within four days? What is this world coming to?

In Arroyo v. Volvo Group North America (7th Cir. 10/6/15), the appellate court was faced with the issue of whether the district court correctly dismissed an Army Reservist’s USERRA lawsuit. Volvo claimed that it fired LuzMaria Arroyo for violations of its attendance policy. The court, however, thought that the following emails exchanged between her supervisors suggested otherwise:

• “I find myself with a dilemma if I were to discipline a person for taking too much time off for military reserve duty…. I certainly give her credit for serving our country but of course I am also responsible for our business needs.”
• “First, we do not have to grant time off for [Arroyo’s] travel time. Her legal obligation is 2 weeks per year, which we do give off, and 1 weekend per month. The drills she attended were most likely extra training, which we do not have to grant the time. We do not have to give extra time for her travel to and from her weekend duty. She does have the option to transfer to a closer unit, we cannot make her transfer.”
• “Unfortunately, there isn’t a lot we can do…. Per the law we have to wait for her. Sorry it isn’t what you wanted to hear.” (after her deployment to Baghdad.)
• “[Arroyo] is really becoming a pain with all this.”

WIRTW #385 (the “there’s no such thing as a free lunch…” edition)

Retailer Urban Outfitters is trying to new strategy to staff its fulfillment centers for the holiday season. It’s asking its salaried employees to work weekends. And, since they are already paid a salary, the work comes with the added bonus of no extra pay, but with a free lunch, and transportation (if needed).

A lesson on USERRA and military-status discrimination

The Uniformed Services Employment and Reemployment Rights Act guarantees servicemembers the right to be free from discrimination in hiring, re-hiring or reinstatement, retention, promotion, or any benefit of employment on the basis of that membership, application for membership, performance of service, application for service, or obligation in the armed forces.

Intermittent leave for exempt employees: the survey results

Last week, I asked a simple question: should employer require salaried, exempt employees to take intermittent FMLA leave as unpaid leave, and deduct hours spent on leave from their pay.

Here are the results:

Beware blanket exclusion policies under the ADA

Nicholas Siewertsen, deaf since birth, sued The Worthington Steel Company, claiming that it discriminated against him when it banned him from performing any job requiring him to operate forklifts or cranes.

From the time of his hiring in 2001 until the ban in 2011, Siewertsen operated forklifts, overhead cranes, and other motorized equipment without incident. He communicated with his co-workers using a variety of techniques and tools, including written messages on notepads, computer programs and text messages, hand gestures, and limited speech. In 2011, however, the plan human resources manager learned, apparently for the first time, that the company had a corporate-wide policy against deaf employees driving forklifts. Without considering Siewertsen’s decade of on-the-job performance, the company disqualified him from his current position, and transferred him, without a demotion in pay, to one of four menial jobs in the plant that did not require the use of forklifts or cranes. Siewertsen sued, claiming that the company violated the ADA by applying the no-forklifts-for-deaf-employees policy, and transferring him to another position. (Even though the transfer did not result in a reduction in pay, Siewertsen claimed the new position lacked any opportunities for promotion or advancement within the company).

A stinker of an ADA lawsuit: employee claims illegal firing over excessive gas

A New Jersey pork roll manufacturer is accused of unlawfully firing an employee because of his excessive flatulence in the office. The Huffington Post has the details:

Announcing the launch of the Ohio OSHA Law blog

It’s with tremendous pride that I announce the launch of the Ohio OSHA Law blog. It is the second labor and employment blog published by Meyers, Roman, Friedberg & Lewis.

I like to think of myself as a blogging evangelist, and I am beyond pleased that my colleagues have picked up my blogging challenge.

For an agency as potentially devastating as OSHA can be for employers, OSHA often flies under the radar. Yet, all it takes is the complaint of one disgruntled employee, or one unpreventable injury, to bring an OSHA investigator your door. And, once they arrive, you can sure they won’t leave without telling you have to open your checkbook. The results of an investigation can be financially devastating. Click over to OSHA website for a snapshot of how high a citation can reach.

You need to educate yourself about OSHA, and bring your business into compliance before OSHA shows up at your door. So, do your business (and me) a favor and head over to OhioOSHAlaw.com for all of your workplace safety updates.

WIRTW #384 (the “survey” edition)

Have you taken my survey on FMLA intermittent leave and salaried exempt employees? If not, click here, and answer two short questions. Let’s see if this is a problem in need of a solution, or a non-issue.

Should you deduct from an exempt employee’s salary for intermittent FMLA? [survey]

Suppose you have a salaried, exempt employee. You pay that employee a fixed weekly salary, regardless of the number of hours he or she works. Some weeks the employee works 40 hours, some weeks the employee works 30 hours, and some weeks the employee works 60 hours. In the calculus of a weekly paycheck, the number of hours worked is irrelevant. A salary covers all hours worked in a week, whether it’s one hour or 100 hours.

Let’s further suppose this salaried, exempt employee submits a request, and is approved for, intermittent leave under the FMLA. It could be for the employee’s own serious health condition, or that of a family member. As a result, this salaried exempt employee starts taking an hour or two off per week for doctor’s appointments related to the serious health condition. Is that FMLA time-off paid or unpaid, for the salaried, exempt employee?

Independent contractors: everyone has an opinion

Everyone’s getting in on the act of defining who is an employee versus an independent contractor. This week, it’s the NLRB’s turn. In Sisters’ Camelot (9/25/15) [pdf], the Board determined that terminated pro-union community canvassers were employees covered by the NLRA, not independent contractors.

The employer, a nonprofit organization that collects and distributes food to low-income individuals, funds its operation primarily through donations obtained by canvassers through door-to-door solicitations. The canvassers, classified by the employer as independent contractors, attempted to organize into a labor union. When the employer found out, it terminated the services of one the ringleader, and suggested to others that organizing would be futile. Unfair labor practice charges followed.

The NLRB concluded that the canvassers are employees, not independent contractors. In so ruling, it balanced the following 11 factors:

1. Extent of control by employer
2. Whether the individual is engaged in a distinct occupation or business
3. Whether the work is usually done under the direction of the employer or by a specialist without supervision
4. Skill required in the occupation
5. Whether the employer or individual supplies the instrumentalities, tools, and place of work
6. Length of time for which individual is employed
7. Method of payment
8. Whether the work is part of the regular business of the employer
9. Whether the parties believe they are creating an independent-contractor relationship
10. Whether the principal is or is not in the business
11. Whether the evidence shows the individual is rendering services as an independent business

The NLRB concluded that only two of the factors either favored independent-contractor status or were inconclusive on the issue—length of employment (which is sporadic and permits them to hold other jobs) and whether the parties believed they are creating an independent contractor relationship (with some testifying that they had signed independent-contractor agreements). The other nine, however, favored a finding of employee status:

Critically, when the canvassers work for the Respondent, they do so at times and locations determined by the Respondent. Their compensation is nonnegotiable and strictly limited by the Respondent’s time and location restrictions. Canvassers must generally use the Respondent’s tools and instrumentalities, including materials and transportation. They have no proprietary interest in any part of the canvassing operations, including their maps. They must keep accurate and detailed records as part of the Respondent’s close scrutiny of their activities. If they do not comply with the Respondent’s directives, they may be subject to discipline. Canvassers are also well integrated into the Respondent’s organization and identify themselves as part of it. The Respondent provides training, and canvassers need not have any specialized education or prior experience. While the Respondent conducts other fundraising activities beyond neighborhood canvassing, it could not fulfill its charitable mission without the canvassers, who procure most of its operating funds. Finally, there is no evidence showing that the canvassers render services as part of an independent business.

So, add labor organizing to the list of concerns employers need to have regarding independent-contractor classifications. It’s not enough to worry about whether they are employees for wage/hour purposes, workers’ comp purposes, or tax purposes, but also whether they are employees for union-organizing and other labor-relations (i.e., protected concerted activity) purposes. Even though this issue is now squarely in the NLRB’s line of sight, the suggestion on how to classify workers in close cases has not changed: unless one is clearly an independent contractor, over whom you exercise no control, the safest course of conduct is to classify that worker as an employee and not take any unnecessary legal risks.

Is digital “shunning” illegal retaliation?

Wired tells the story of an Australian tribunal, which ruled that an employee was illegally bullied at work, in part because a co-worker had unfriended her on Facebook.

Transfer this case to America, and assume that the employee is claiming retaliation based on the unfriending. Supposed Employee-A complains to HR that Employee-B is sexually harassing her, and, as soon as Employee-B finds out about the complaint, he unfriends Employee-A on Facebook. Does Employee-A have a claim for retaliation based on the unfriending?

The answer is likely no.

As a matter of law, an adverse action sufficient to support a claim for retaliation merely must be an action that would dissuade a reasonable worker from complaining about discrimination. Yet, the Supreme Court has stated that the adversity to support a claim for retaliation must be “material”, and that petty slights, minor annoyances, or a simple lack of good manners normally will not count:

We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth “a general civility code for the American workplace.” … An employee’s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience…. It does so by prohibiting employer actions that are likely “to deter victims of discrimination from complaining to the EEOC,” the courts, and their employers…. And normally petty slights, minor annoyances, and simple lack of good manners will not create such deterrence….

A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination.

Thus, an ostracism or shunning from a social network—one that serves no work-related purpose other than fostering congeniality among co-workers—likely should not support a claim for retaliation.

Does an employee have to be “disabled” to claim retaliation under the ADA?

The ADA protects employees with disabilities? But what about its anti-retaliation provision? Does an employee have to be “disabled” under the ADA for the statute to protect that employee from retaliation? According to Hurtt v. International Services, Inc. (6th Cir. 9/14/15), the answer is no.

Hurtt worked at ISI as a senior business analyst, earning a yearly draw plus a percentage commission on sales. The day after he requested FMLA-leave for (job-related) anxiety and depression, ISI terminated his draw and switched him a commission-only comp plan. He sued, claiming, among other things retaliation for requesting various accommodations for his disability, including requests for a leave of absence and for a reduced work schedule.

The 6th Circuit reversed the trial court’s dismissal of Hurtt’s retaliation claim, holding that the mere act of requesting an accommodation is sufficient to raise the specter of retaliation, regardless of whether the employee is actually “disabled”:

We have held that requests for accommodation are protected acts…. Hurtt argues that he engaged in protected activity when he requested a reasonable accommodation and when he took FMLA leave…. But, the pertinent inquiry here is not whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable accommodations.

The takeaway here is more common sense than law. If Title VII can protect a white guy from retaliation when he complains that his black co-worker is being mistreated, the ADA certainly should protect an employee requesting a reasonable accommodation, whether or not a court determines after the fact that he is, or is not, legally “disabled”. Employees who request accommodations should always be treated with care; otherwise you risk stepping on a retaliation landmine.

WIRTW #383 (the “iOS” edition)

Thanks to iOS 9, you now have a new way to read the Ohio Employer’s Law Blog. If you own an iPhone or iPad, and have upgraded to iOS 9, you have a new app called “News.” Within that News app, search for “Ohio Employer’s Law Blog” and you’ll be able to read all of my daily updates in Apple-land. As for me, I’ll be reading on my new iPhone 6S, which, barring a FedEx mix-up, should be delivered this afternoon.

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

Discrimination

• Alcoholism, Associational Discrimination, Retaliation, and Magic Words — via Understanding the Americans with Disabilities Act
• “Drawing the Line Between Civil and Religious Rights” — via How Appealing
• The Death of the Class-Action Lawsuit? — via The Nation
• Can a company regulate employee weight and appearance? — via Eric Meyer’s The Employer Handbook Blog
• What employers need to know about transgender discrimination — via EmployerLINC
• Is Your Federal Contracting Business Covered by OFCCP Affirmative Action Rules? — via Tim McConville’s Labor and Employment Law Cocktail
• What’s your boss allowed to ask when you call in sick? — via Ask a Manager

Social Media & Workplace Technology

• Facebook is expanding its workplace social network to hundreds of companies — via The Verge
• Justice Alito Says SCOTUS Is Clueless On New Tech, Which Makes Privacy Cases Even Harder — via Above the Law
• All Boards Need a Technology Expert — via Harvard Business Review
• New Key Terms for DoD’s New Cyber Security Regulations — via Privacy and Data Security Insight
• Did Volkswagen Violate the Computer Fraud and Abuse Act? — via Shear on Social Media Law
• All work and no smartphone play will dull your employees — via Ragan.com

HR & Employee Relations

• When terminating an employee, is a clean break better than a long limbo? — via Robin Shea’s Employment & Labor Insider
• Trusting Human Resources: A Fantasy or a Necessity? — via Dan Schwartz’s Connecticut Employment Law Blog
• The Pope’s visit is a magnificent case for teleworking — via Wonkblog
• Sweden Experiments with Six Hour Working Day — via Inhouse Blog
• Juggling Work and Family During School Holidays — via Fathers, Work, and Family
• Say goodbye to the “Mad Men” office: How workplace flexibility & paid leave can transform the way we work — via Salon
• Your Employee’s Former Employer Just Sued You????? — via The Emplawyerologist
• “At Will” Employment vs. Right to Self-Defense — via Phil Miles’s Lawffice Space

Wage & Hour

• Protecting the Sharing Economy: Creating an FLSA Dependent Contractor Status — via Doug Hass’s The Day Shift (p.s.: check out Doug’s new blog)
• Questions Answered About the Proposed FLSA Overtime Rule Change — via ERC Insights Blog
• Attempted self-help via internet leads to employer liability under the FLSA — via Employment Law Matters
• DOL to Pay $1.5 Million to Employer for Bad Faith Investigation — via Wage & Hour Insights

Labor Relations

• An Impractical and Dangerous Ruling — via New York Times
• Three Reasons Labor Unions Will Prevail — via Huffington Post
• “Union leaders are livid” — via Walter Olson’s Overlawyered
• NLRB Now Requires Companies to Give Most Employee Witness Statements to Unions — via Matt Austin Labor Law
• NLRB Now Publishing Election Tallies Online — via Labor Relations Today
• OUR Walmart fights … OUR Walmart? — via LaborPains

The time for your safety audit is now.

According to data released last week by the Bureau of Labor Statistics, the number of workers killed on the job as a result of slips, trips, and falls rose in 2014 by nearly ten percent.

Here are some the key findings:

• The number of fatal work injuries in private goods-producing industries in 2014 was 9 percent higher than the revised 2013 count but slightly lower in private service-providing industries. Fatal injuries were higher in mining (up 17 percent), agriculture (up 14 percent), manufacturing (up 9 percent), and construction (up 6 percent). Fatal work injuries for government workers were lower (down 12 percent). 
• Falls, slips, and trips increased 10 percent to 793 in 2014 from 724 in 2013. This was driven largely by an increase in falls to a lower level to 647 in 2014 from 595 in 2013. 
• Fatal work injuries involving workers 55 years of age and over rose 9 percent to 1,621 in 2014 up from 1,490 in 2013. The preliminary 2014 count for workers 55 and over is the highest total ever reported. 
• After a sharp decline in 2013, fatal work injuries among self-employed workers increased 10 percent in 2014 from 950 in 2013 to 1,047 in 2014. 
• Women incurred 13 percent more fatal work injuries in 2014 than in 2013. Even with this increase, women accounted for only 8 percent of all fatal occupational injuries in 2014. 
• Fatal work injuries among Hispanic or Latino workers were lower in 2014, while fatal injuries among non-Hispanic white, black or African-American, and Asian workers were all higher. 
• In 2014, 797 decedents were identified as contracted workers, 6 percent higher than the 749 fatally-injured contracted workers reported in 2013. Workers who were contracted at the time of their fatal injury accounted for 17 percent of all fatal work injury cases in 2014. 

So, we know that workplace fatalities are on the rise? What does this mean for your business? It means that now is the time for you to get your workplace-safety house in order. You are (god forbid) one fatality, serious injury, employee complaint, or planned investigation away from an visit from your friendly neighborhood OSHA investigator. 

Do you want to know what your safety programs look like before OSHA shows up at your door? Do you want the comfort of knowing that your OSHA logs and safety training material are in order, and that your safety low-hanging fruit (guarding, lock-out/tag-out, fall protection, PPE, etc.) is handled? 

If so, consider the current time (when OSHA is not in your facility) as borrowed time. Use this borrow time wisely to audit all of your safety practices. It could mean a difference of tens, or even hundreds, of thousands of dollars in fines. Time and money well spent, if you ask me.