Employment and Labor Insider - Legalese Is Not Spoken Here

What a year, am I right or am I right? Here is a catalog of the major employment and labor law developments from 2011. And, just to keep it entertaining, I've started off each month with a weird but true off-topic story that was in the news that month. Many thanks to Drudge Report archives for the strange stuff. Thanks also to Esquire magazine's annual Dubious Achievement Awards (sadly, discontinued in 2008) and Dave Barry's Year in Review, both of which I am ripping off paying homage to.

Now, fix me a drink, will ya? We have a lot to talk about.

JANUARY

Ah-choo! Some teenage burglars stole an urn that contained the cremated remains of a man and two great Danes. The teens, obviously not criminal masterminds, snorted the ashes, believing them to be cocaine. 

and . . .

"He*l, they're all disgruntled. I ain't runnin' no da*n daisy farm!" The EEOC reported that for fiscal year 2010 it received a record number of charges, and that retaliation charges surpassed race discrimination charges for the first time in history.

Express yourself. The U.S. Department of Labor issued guidance on its "lactation accommodation" provisions in the Patient Protection and Affordable Care Act (aka "Obamacare") and requested feedback from the public.

GINA: It's more than just a pretty name. The Genetic Information Nondiscrimination Act, which prohibits the acquisition, use or disclosure of "genetic information," which includes family medical history information, took effect.

Nice family. I'd hate to see somet'ing happen to 'em, ya know? The Supreme Court held in Thompson v. North American Stainless that the Title VII anti-retaliation provisions extend to fiances and other significant others of the person who engages in legally protected activity.

FEBRUARY

"Of course, you realize this means war." Uber-disgruntled ex-employee Charlie Sheen declared war on his former employers CBS and Warner Brothers.

and . . .

Another county heard from. (Or is it "country"?) Constangy, Brooks launched the most-excellent Employee Benefits Unplugged, which covers income tax, executive compensation, 401(k) and 403(b) plans, fiduciary compliance, and Department of Labor and Internal Revenue Service audits. All of the attorneys in the firm's Employee Benefits Practice group contribute, but the Chief Blogmistress is Jewell Lim Esposito from the firm's Fairfax, Virginia office.

MARCH

I hate to say "You can't make this stuff up," but you really can't make this stuff up. A New York man who had a court appearance on a DWI charge showed up with an open can of beer and (allegedy) was carrying a bag with four more cans of beer. The man, who had prior DWIs, was jailed with no bail.

and . . . 

At the stroke of a pen, entire nation becomes disabled. The EEOC issued its Final Rule interpreting the Americans with Disabilities Act Amendments Act.

Make sure your "paws" know the laws. The U.S. Supreme Court found in Staub v. Proctor Hospital that an employer could be liable under a "cat's paw theory" for employment decisions that were influenced by a supervisor or other member of management who had an unlawful motive.

APRIL

Study: Members of Congress give each other much less grief than they deserve. A Harvard professor conducted a study that concluded that members of Congress spent 27 percent of their time taunting each other.

and . . .

Life begins at Concepcion. The U.S. Supreme Court found in AT&T v. Concepcion that arbitration of class claims was ok and consistent with the policy underlying the Federal Arbitration Act. The Concepcion decision overruled the interpretation of the California courts that class claims could not be arbitrated.

OFCCP starts pilin' on. The Office of Federal Contract Compliance Programs issued a proposed rule regarding the obligations of federal contractors to recruit and hire veterans. Although the desire to help veterans is laudable, the rule would impose significant compliance burdens on federal contractors.

Nothing could be finah . . . The NLRB filed a complaint against Boeing Corporation for opening a production line in North Charleston, South Carolina, instead of the outskirts of Seattle, Washington, where most of its production was located. The Board alleged that the move to right-to-work South Carolina was the company's unlawful attempt to avoid dealing with the International Association of Machinists, which had carried on a number of strikes at the Washington State facility over the years.

MAY

Cannibal Lecter. A man ran an internet ad seeking someone "who would agree to be killed, cooked, and eaten." A Swiss man answered the ad, thinking it was just a fantasy game, but after talking with the "cannibal" on the phone, determined that he was deadly serious. (Tehe. Get it?) The would-be "meal" called the police, who answered the ad undercover and foiled the banquet.  

and . . .

"I'm a victim of soicumstance!" (Probably true.) Bruce Raynor, President of the Workers United affiliate of the Service Employees International Union and International Executive Vice President of the SEIU, was forced out of both positions after being charged with filing misleading expense reports. Raynor, a labor leader for 38 years and who had been president of UNITE and UNITE HERE for eight years before joining Workers United, contended that he was a victim of SEIU politics.

Kiss our apps! The U.S. Department of Labor launched its wage and hour recordkeeping app (at link, scroll down to "Email your timesheets directly to Big Brother!") for iPhones and iPods, with a promise to develop counterparts for Androids and Blackberrys.

Labor pains. The NLRB sued the state of Arizona over a constitutional amendment that protected the right of employees to have secret ballots in union representation elections. The Board contends that state constitutional amendments like Arizona's are preempted by the NLRB. It has also sued the state of South Dakota for the same reason.

Your money, or your life. The OFCCP proposed changing the scheduling letter that it sends to federal contractors who are being audited. The changes would require contractors to provide detailed, individualized information about employees' compensation, among other proposed changes.

Continue Reading

Employers, are you expecting too much from your "probationary period"?

Most employers have a 90-day "probationary period," and if you believe what's in their policies, they can fire an employee for any reason during that period -- no ifs, ands, or buts. (And if you believe that, I know a Nigerian prince who needs to hold your money for a little while so he can return it to you a thousandfold.)

My colleague Heather Bussing has already written well about how "probationary periods" can give employees the impression that they can't be terminated except for "cause" once the probationary period has ended.

In addition, the probationary period may give employers a false sense of security.

Case in point, tweeted by Vancouver labor and employment attorney Jillian Humphreys:

A hotel in Charlottestown, Prince Edward Island, was in the news recently because management fired an administrative assistant/desk clerk within one hour of her announcement that she was pregnant.

The hotel says that the former employee was not terminated because of her pregnancy, but because of pre-existing problems with her work performance and an inability to get along with her supervisor. According to the hotel, the decision to terminate the employee had actually been made a couple of weeks before she was terminated (and, more importantly, before the hotel had any reason to believe that she was pregnant).

Normally, this is a good defense.

But not always. Like, not when you don't have any proof apart from "scout's honor" that the decision had been made earlier.

In this case, unfortunately for the hotel, the employee was in her "probationary period," and the employer didn't think it had to document any of her issues or even meet with her to let her know that she wasn't meeting their standards.

For some holiday cheer (well, "cheer" may be an overstatement, but for some excellent holiday-themed blog posts), please visit the December Employment Law Blog Carnival:Holiday Edition, hosted by Ari Rosenstein of CPEHR. The carnival includes my post, "10 reasons for employers to be jolly about the ADA." Ari, thank you for including us, and you did a great job!

So, it will be their word against hers that the hotel made the decision to terminate before she announced her pregnancy. And, as the employer itself admits, the timing of the termination was a bit     . . . problematic.

I tweeted to Jillian that this employer would be in big trouble in the United States, and she said that same was true in Canada.

Occasionally, I will talk to employers who, like this hotel, think that the probationary period means they can do whatever they want, which is not correct. I've seen employers terminate employees during their probationary periods for things like

*Protected concerted activity ("For cryin' out loud, she hadn't been here a month, and she was already bi**hing about her overtime!")

*ADA disabilities ("Oh, sure, we accommodate disabled employees, but if they have a non-work-related injury during their probationary period, we terminate them and let them reapply when they're well.")

Oy.

If you have not already done so, please vote for Employment & Labor Insider for best Labor and Employment blog of the ABA's Blawg 100. Just click here or on the ABA Blawg 100 cake badge on the upper right of your screen. To prevent hanging chads and the like, the ABA requires registration, but it's free and spam-free, and you don't have to be a lawyer or a member of the ABA to register and vote. Once you've registered, scroll down to "Labor & Employment," click, and you'll see all the nominees in this category, including us. To vote, just click on the "Vote" button. Thank you very much for your support!

Employers should keep in mind the following about probationary periods:

* Even cowgirls get the blues, and even probationary employees have rights under the anti-discrimination laws. If an employee is terminated for a reason that violates the law, the fact that he or she is "probationary" is not going to help you, the employer, one whit.

* As Heather has pointed out, having a probationary period may cause your employees to believe that they are no longer "at-will" once the probationary period ends. (Not that an employee is ever "at-will" anyway. See comment about Nigerian prince, above.) An employee misunderstanding may not have legal consequences depending on where you are, but in a state like California, it probably does.

 So, what can an employer do? If anything?

*It's usually fine for benefits not to kick in until the "probationary" period is completed, and you can even say that in your handbook if you have one.

*It's fine to have a lower (easier) standard for termination of a probationary employee. However, the lower standards ought to be spelled out and should be applied consistently within the "probationary" population of your work force. And the lower standard cannot violate a law, as in the ADA example above. F'rinstance:

THIS: "Our attendance policy for regular employees is 10 no-fault points and you're out. A probationary employee who accumulates 3 attendance points will be terminated."*

*Even here, you may have to make exceptions for absences associated with "disabilities" within the meaning of the ADA.

NOT THIS: "We do not make reasonable accommodations for probationary employees."

OR: "Only regular employees may make complaints of workplace harassment or unlawful activity in the workplace."

OR: "Only regular employees may complain about their terms and conditions of employment."

Of course, if you are going to terminate a probationary employee under your "easy" (but legal) termination standard, you'll also need to have some evidence that the employee failed to meet the "easier" standard, such as attendance records, or documented warnings, or something besides your word. Yes, this is true even if the employee is "probationary."

Our PEI employer is learning that lesson the hard way.

Thank you from the bottom of our hearts to those of you who helped Employment & Labor Insider make the 2011 American Bar Association's Blawg 100 list!

The ABA chose 100 of approximately 3,500 legal blogs in its legal directory. We were one of only nine employment law blogs that made the "100." We very much appreciate your support, and would also appreciate your clicking on the ABA Blawg 100 badge on the right of your screen to vote for us as the best of the top 100. (Free registration required to vote, but you don't have to be a member of the ABA, or even a lawyer.)

By making it to the top 100, we are in some very august company, including my Constangy "blogging bro" Mike Maslanka of Work Matters, and some of my favorite labor and employment bloggers from elsewhere -- Jon Hyman, Eric B. Meyer, Daniel Schwartz, Molly DiBianca, Jeff Nowak, and Donna Ballman. If you haven't visited their excellent blogs, please do so.

Thank you again for your support!