Employers, you might (or might not) be liable for retaliation if . . .

Posted by Robin E. Shea on January 27, 2012

Our friend Judy Greenwald from Business Insurance magazine reported this week that the number of EEOC charges filed in fiscal year 2011 (which ended September 30, 2011) was relatively flat, with the exception of one big category . . . retaliation.

Mobile Home smaller.jpgRetaliation is essentially taking action against an employee because the employee engaged in some type of activity that is protected by law. The law breaks it down into three parts, each of which the employee has to prove:

1-The employee engages in some type of legally protected activity (more on this below).

2-"Adverse employment action" is taken by the company.

3-There is a "causal nexus" (that's "connection" to you and me) between the protected activity and the adverse action. In other words, there has to be some reason to believe that the adverse action was taken because of the protected activity.

Almost all federal and state employment laws have anti-retaliation provisions. In the labor relations arena, the "non-discrimination" provisions in the National Labor Relations Act are essentially anti-retaliation provisions. A wrongful discharge lawsuit where an employee claims he was terminated for refusing to break the law or for complying with the law is also essentially a retaliation claim.

"Protected activity" can include such things as filing a charge or lawsuit, providing truthful testimony or other help to someone else in connection with a charge or lawsuit, or making an internal complaint about unlawful practices. These activities may be protected even if the employee is wrong -- as long as the employee had a good-faith belief that the employer's conduct was illegal. (Sometimes the employee's belief must also be objectively reasonable to be protected -- check the relevant law and the interpretations from courts in your jurisdiction.)

However, the employer may not be liable if the employee expresses herself in an inappropriate way -- for example, by spray painting on your corporate headquarters building, "MEGACORP DISCRIMINATES AGAINST WOMEN!!!!" (Thank heaven for small favors, huh?)

Now that you have that background, what I'd really like to talk about today is how an employee proves retaliation and how an employer disproves it. With a hat tip to Jeff Foxworthy (you knew there was a reason for that photo of a trailer!),

"YOU MIGHT BE LIABLE FOR RETALIATION IF . . ."

1-You took action against the employee a short time after you found out about the protected activity. Yes, there might be an innocent explanation, and you'll get a chance to provide it, but it looks very suspicious if the adverse action occurred, just as an example, the day after you received your copy of Joe's race discrimination charge in the mail. If the time interval was less than six months and you don't have a good explanation, you might be liable for retaliation.

2-That gun is smokin'! You, or another member of management who directly or indirectly participated in the decision made a statement indicating a retaliatory intent. You know, something like, "I can't believe that little dickens filed an EEOC charge against us! I'll fix her wagon!" If one of the key individuals made a "smoking gun" statement like this before the adverse action was taken, you might be liable for retaliation.

3-You have no "interventions." In other words, there is no intervening event to "break" what we lawyers like to call "the chain of causation." Mary had outstanding performance reviews before she complained that Mr. Romeo was sexually harassing her. She was fired a month later. There was nothing significant that occurred between her harassment complaint and her termination that would "explain away" the suspicious timing of the termination . . . for example, that Mary had botched a million-dollar deal after she complained, or got caught with her hand in the petty cash drawer, or was part of a department that was already scheduled for elimination. If there is a relatively short time between the protected activity and the adverse action, and there is no significant intervening event, you might be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Employers, if you have to take action against an employee who engaged in protected activity, examine your conscience: "Would I be doing the same thing if Lemuel had not complained on behalf of himself and his co-workers about having to work too much overtime?" Oh, really? Are you sure? If you answer that question, "no" or "maybe," then don't take the action. If you answer it "yes," then you're still not done. Now ask yourself this: "Even if I am satisifed that I'm treating Lemuel no differently from any other employee, will I be able to prove it in court?" If you can't convince a third party that you treated Lemuel the same way you would have treated any other employee with similar issues, you might be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Do you have other employees who've filed charges or lawsuits against you while they were still employed? Or workers' compensation claims? Or who made internal complaints about discrimination, sexual harassment, working conditions, safety, or what have you? Did bad things happen to them? This could show that you have a pattern of retaliating against employees who engage in protected activity. If so, a judge or jury is likely to find that you probably treated this particular employee the same way, and you might be liable for retaliation. 

We aim to be "fair and balanced," so here is the other side.

YOU MIGHT NOT BE LIABLE FOR RETALIATION IF . . .

1-You are blissfully ignorant. You can't retaliate for something you didn't know about. If you fired Velveeta before you knew that she had been involved in union organizing, then you should be ok. In fact, if you can prove that you made the decision to fire Velveeta, and then found out she was involved in union organizing, and then fired her per the original decision, you'll probably win because the decision had already been made while you were knew nothing of her protected activity. This, by the way, is one of the best reasons to document decisions to terminate employees, even if the termination isn't actually carried out until later.

If the decision was made before you knew about the protected activity, you might not be liable for retaliation.

2-It's been a long time coming. If at least six months has elapsed between the time you found out about Todd's workers' comp claim and the day that you decided to fire Todd, most courts will give you the benefit of the doubt that the decision was not related to his protected activity. Todd can overcome that presumption by presenting evidence that you were still upset with him about his workers' comp claim even after all that time, but assuming he doesn't have any, you might not be liable for retaliation.

3-You have an "intervention." You found out last week that Banshie had filed an EEOC charge against you. Yesterday, you caught her (on tape!) slapping her supervisor across the face for no good reason whatsoever. YES, you can fire Banshie for slapping her boss, even though she just recently filed a charge that you know about. This is what we call a significant intervening event that "breaks" the chain of causation. If a significant intervening event occurred that provided the ground for the adverse action, then you might not be liable for retaliation.

4-A foolish consistency is not the hobgoblin of little minds. (Except when it is.) Yes, you terminated Dishwater only three weeks after finding out about his testimony against the company in Carol's discrimination lawsuit, but he had exceeded the maximum number of absences (non-FMLA/ADA, of course) under your policy, and you checked before you did it and made sure that every other employee whose attendance reached the same level had also been terminated. You also found that Dishwater had received all of the progressive warnings to which he was entitled under your policy. If you treat the "protected" employee the same way you would have treated anyone else with comparable history, then you might not be liable for retaliation.

5-A foolish consistency is the hobgoblin of little minds. (Except when it isn't.) Yes, you fired Chloreen for poor performance a couple of months after you found out that she'd filed a charge against you. But you have 50 other employees who have filed charges, lawsuits, or workers' comp claims, or who have made internal harassment complaints, etc., etc., who are all still working for you and are in good standing. If you have a long list of employees who are rocking along at work without problems even though they're "protected," then you might not be liable for retaliation.

OFF-CLOCK WORK: "Flintstone" laws in a "Buck Rogers" world

Posted by Robin E. Shea on January 20, 2012

It seems like such an insignificant little case, but it's really a can of exploding snakes.

An Illinois woman who was terminated after she was caught working during her lunch period has won her claim for unemployment. (The employer said that she was not terminated for working but for her behavior after she was confronted about the unauthorized work.)

Your gut reaction was probably the same as mine -- they terminated this lady for working? What, are youGerald Ford eating at desk.jpg kidding me? What is wrong with this employer?

But after I came to my senses, I had a few more thoughts:

*The Land of Lincoln requires that employees who work 7 1/2 hours or more get a 20-minute unpaid meal break after their first five hours of work or earlier. So, presumably, this employer faced potential liability if it looked the other way when employees skipped their meal breaks to work.

*The Fair Labor Standards Act requires that non-exempt employees be compensated whenever they are required or "suffered" to work. "Suffered," for those of you who don't read the King James Version of the Holy Bible, or Stephen King, means "allowed." Therefore, if an employee chronically skips unpaid breaks of 20 minutes or more, the employer could be liable for back pay and (potentially) overtime.

*According to the employer in this case, the employee had been warned several times in the past about working during her breaks.

In other words, this case raises a nice thorny set of issues about "off-clock work."

The problem. It helps to recall that the FLSA was enacted in the 1930's, when the work force consisted of men (as in, "males") going to heavy, dirty factories, doing heavy, dirty labor, punching out at the end of the day, and going home to simple-but-delicious dinners cooked by their loving wives, and surrounded by their obedient children, and listening to FDR's Fireside Chat on the Wurlitzer. (Yeah, I'm sure it was exactly like that, but you get my point.) Or, for a 1960's version, think Fred Flintstone and "the fights" on TV.

As a result, the FLSA still works pretty well in what manufacturing we have left in this country but less so in the Buck Rogers world of the salaried non-exempt employee, who is equally likely to be female and who may place more value on a flexible schedule and be more inclined to "work straight through" so she can leave early and get little Addison and Liam picked up before the day care center closes. (PS - Sometimes guys like flexibility, too.) Not to mention that we now have these devices called "cell phones" and "home computers," which greatly heighten the risk that some "off-clock work" will be performed on any given day. And not to mention that the supervisors of these employees are FLSA-exempt and can work whenever they feel like it with no problem . . . which makes them more inclined to think nothing of their direct reports' doing likewise.

Buck Rogers.jpg

My own opinion is that salaried, non-exempt employees should be able to make their own schedules and be flexible if the job allows it. But nobody consulted me when they enacted the FLSA. (I'm sure they wanted to, but my parents were only preschoolers at the time and hadn't met yet.) So, according to the "Stone Age" law, employers are faced with two unattractive alternatives: (1) keep employees happy by letting them do their thing as long as the work gets done, but risk liability for off-clock work; or (2) obey the law by requiring employees to stick to their required shifts and take all required breaks on schedule, no ifs, ands, or buts, which will make the employees very unhappy, not to mention insulted because they identify with the Buck Rogers world, not the Flintstone world.

I suspect that our Illinois employer chose option 2 because it understandably wanted to stay out of legal trouble. And it's very difficult for an employer to win an unemployment case anyway, especially in Illinois. (Scroll down to "Disqualifications" and "Definitions.") This employer will still probably be in great shape to defend a wage and hour lawsuit.

The solution? I'm not only a lawyer, but I'm also an employer, so "I've looked at life from both sides now." Here are my suggestions for minimizing your exposure for off-clock work while keeping your non-exempt employees relatively satisfied with their jobs:

*Set a "regular" work schedule that fits the needs of your non-exempt employee. Even though you may need to make adjustments as her needs require, get as close as you can with her "regular" schedule. For example, if she has to leave at 3 p.m. to get the kids from school, make the "regular shift" 7:30 a.m. to 3 p.m. if you can. This will not resolve all of your "off-clock" problems but will at least make it likelier that she will be able to put in a full day's work without wreaking havoc in her personal life.

*Tell your non-exempt employee that you do not expect him to work outside his normal hours even if you leave voice mail messages or send emails to him outside his normal hours. If you're like me, you think of all kinds of crazy things at 3 a.m. and want to send an email or leave a message right away because you know you'll have forgotten it by the time all the normal people are at work. Make sure your employees know that you are doing that for yourself and that there is no expectation that they act on your crazy-hour messages, or even read or listen to them, until their regular work day starts. Better yet, do your reminders to yourself in "Tasks" in Outlook or an app like Evernote so that your employee will not feel that you're pressuring him to work outside of his normal hours.

*Constantly REMIND your non-exempt employee that you do not expect him to work outside of his regular schedule even if you leave messages after his normal hours. Whenever you leave an outside-work-hours message, be sure to preface it with "When you come in tomorrow . . ." or "This can wait until you're back in the office, but . . ." so that he clearly understands you're not expecting him to take care of it right then and there.

*Make sure your non-exempt employee knows to include on her time records any "extra" hours she put in. You will never be able to avoid some work outside normal hours. But make sure your non-exempt employee understands that she is to be paid for this time and must put it on her timesheet. A lot of non-exempt employees do not realize this -- they think of themselves as professionals, just as you do.

*If you can't afford to pay overtime, let your non-exempt employee "make up" the extra work time by taking off early . . . in the same workweek. Unless you're a government employer, there is no such thing as "comp time." But the FLSA overtime requirements apply only to hours worked in a single workweek. So if you need for your non-exempt employee to work late on Monday, give her Friday afternoon off. She'll probably love it, and if the afternoon off gets her hours for the week to 40 or less, you won't owe any overtime. (This is what they call a "win-win.") To repeat: the "make-up" time off must be taken in the same workweek. If it can't be made up in the same workweek, you will owe the overtime pay.

NOTE TO CALIFORNIA EMPLOYERS: In California, overtime is calculated on a daily basis, so this won't work for you.

OK, OK, but what do you do if your employee continues to disobey your instructions to avoid off-clock work?

*Do treat it as a disciplinary issue. First, make sure your expectations have been clearly communicated and that you are not "winking" at off-clock work. Realize that most employees want to do a good job and please their bosses, so make sure you aren't giving off vibes that make your employees think off-clock work is expected, no matter what you may say.

If you have not communicated your expectations clearly before, do so now. If you used to "suffer" off-clock work and have decided to turn over a new leaf, make sure your employees know that the rules have changed and that you sincerely mean it. Once you are comfortable that they know (and believe) the expectations, start with an oral counseling the first time you catch them working off the clock. If it happens again, up it to a written warning. Continue with the progressive steps, and if you have to eventually terminate, then terminate. Even if you don't win your unemployment case, that's not the end of the world. Much better to lose the unemployment "battle," but prevent or win a collective or class action "war" under the FLSA or state wage-hour law.

*Do. Not. Dock. There may be some very limited instances in which you can dock (but don't ever try it without the advice of qualified counsel), but in 99.9999 percent of the cases, you should not dock an employee's pay when the employee worked without authorization.

One final word of caution: Pay attention to your surroundings. You may see employees looking like former President Ford in the black-and-white photo above, or coming in early, or leaving late. If you see those goings-on and don't do anything, chances are you will be found to have "suffered" your employees to work.

Bonus word of caution: In case the preceding post has not made this clear, "salaried" does not equal "exempt." (Scroll down to Number 3.)

EMPLOYMENT LAW BLOG CARNIVAL, Chinese New Year Edition

Posted by Robin E. Shea on January 16, 2012

Dragon.Top.Nine-Dragon_Screen-center.JPGThe Chinese New Year is almost upon us. In honor of the Year of the Dragon, and in fond farewell to bilingual Jon Huntsman, who announced that he was withdrawing from the presidential race (hmm . . . speaking Mandarin in a Republican debate? . . . not sure that's a choice I'd have made), we have enough employment and HR blog posts to get you through the entire new year's season without repeating once!

(CAUTION - last I heard, the anti-SOPA blackout is still scheduled to occur on Wednesday even though the bill has been severely stalled in the House of Representatives, so if the links don't work on Wednesday, we hope you will try again on Thursday when everyone is back up.)

OK, on with the festivities! Thanks to Wikipedia for the information about the Chinese New Year and the quotes.

Preliminaries

Before New Year's Day, Chinese families thoroughly clean their houses -- not only to be ready for celebrations, but also to sweep away the bad luck from the prior year and make the house ready for good luck in the new year. "Brooms and dust pans are put away on the first day so that the newly arrived good luck cannot be swept away."

Mark Toth of The Manpower Group Employment Blawg recommends some "housecleaning" with employer performance evaluations, in "Evaluation Evaluation" and "Performance Evaluation Worst Practices."

Day One: Respect Your Elders

Dragon.Chinese_draak.jpgThe Chinese have a number of traditions on New Year's Day, but the most universal is to honor one's elders. Chinese families "visit the oldest and most senior members of their extended families" on this day.

Philip Miles of Lawffice Space has a good post about an older applicant who was rejected for being "overqualified" -- is "Too Smart to Hire?" just code for age discrimination?

Also, if you represent family businesses, you will love Adam Whitney's "You May Be Damned if You Work With Family Members."

Day Two: Show Me the Money!

On the second day of the Chinese new year season, families celebrate the birthday of the God of Wealth. "Business people of the Cantonese dialect group will hold a 'Hoi Nin' prayer to start their business" on this day "so they will be blessed with good luck and prosperity."

Prayer at work? Jessica Miller Merrill of Blogging4jobs has sparked lively comments and is sure to generate debate with her "God Has No Place in the Workplace." (For another view, please see my "Religion in the Workplace: 5 Devilish Employer Mistakes," and scroll to "Religion is a topic of which we must never speak, ever ever ever ever.")

Day Three: Do Not Leave the House Today*.

*Pee-Wee Herman's fortune on the day his bike was stolen.

The third day of the season is the day of "the God of Blazing Wrath." Chinese families are advised to stay home and not visit relatives on this day.

While you're holed up indoors, be sure to visit Ari Rosenstein's CPEhr's Small Biz HR Blog, which has a free downloadable "2012 Human Resources Updates: What Employers Need to Know." Cuddle up next to a blazing fire and read his guide while you stay out of the way of the Blazing Wrath.

Day Four: Greedy Heathens Go Back to Work. (kidding!)

Those who celebrate new year's for only a couple of days return to work on this day. Everyone else continues the festivities.

Speaking of attendance at work, Jon Hyman of the Ohio Employer's Law Blog has a great post entitled "Resolve This Year to Properly Handle No-Fault Attendance Policies." This is a big issue, especially considering the EEOC's $20MM settlement with Verizon, in which the agency claimed that the company's no-fault attendance policy violated the Americans with Disabilities Act.

Day Five: Firecrackers and Dumplings!

The fifth day, Po Wu, is the day for pot stickers (jiao zi) and shooting off firecrackers to get the good attention and intercession of Guan Yu. Guan Yu was a general in the Han Dynasty and is now worshipped asFirecrackers_lit_by_hand.jpg a Chinese god of war, representing "loyalty, truth, strength, and justice."

John Holmquist of Michigan Employment Law Connection has an interesting post about an employer who tried to go on the offensive by filing a declaratory judgment action before an ex-employee could file suit alleging disability discrimination based on his HIV status.

Day Six: Back to the Grindstone, if You're Taiwanese.

The Taiwanese have to go back to work today.

No doubt they'll be tweeting, Facebooking, and linking in. Eric Meyer of The Employer Handbook has a most-interesting post on "Are employees' LinkedIn contacts considered your trade secrets?"

And check out Dawn Lomer of i-Sight Blog, who advises us on "Avoiding the Dangers of Social Media Background Checks."

Day Seven: We're Not Getting Any Younger.

This is renri, the birthday of the common man. According to Chinese tradition, everyone is a year older as of this day.

Since we're all getting older, you may enjoy two blasts from the past on the subject of age discrimination: Donna Ballman's "Nine Signs of Age Discrimination" and my "Nine Signs That You'll Lose Your Age Discrimination Case."

Day Eight: Everybody Back to Work! (And a Nice Custom)

Everyone should be back at work by now, but Chinese employers offer a lunch or dinner for their employees, thanking them for the good work they've done in the past year.

And while we're on the subject of good employers, be sure to check out "How NOT to Go Out of Business" on Tim Eavenson's Current Employment blog and Andrea Paris's excellent Q&A on paying commissions in compliance with California law.

Days Nine and Ten: Thanks to the Jade Emperor of Heaven

On these days, the Chinese offer prayer and thanks to the Jade Emperor of Heaven in the Taoist pantheon.

While giving thanks, you'll also be thankful for Joni Kletter's excellent summary of recent cases interpreting the Americans with Disabilities Act Amendments Act.

Also, see Robert Fitzpatrick's "Observations Regarding the Latest Supreme Court Decisions," which includes his take on the recent Hosanna-Tabor decision, as well as five other noteworthy cases relevant to employment law.

And George Lenard of George's Employment Blawg takes a deep dive into Hosanna-Tabor.

Days Eleven and Twelve: Holiday Peters Out.

More celebratory dinners on days 11 and 12. Not much else, according to Wikipedia.

Since it's a quiet couple of days, this is a good opportunity to catch up on some excellent posts. Donna Ballman of Screw You Guys, I'm Going Home has a must-read on one-sided confidentiality agreements, and Dan Schwartz of the Connecticut Employment Law Blog has another must-read on employment rights of smokers.

Day Thirteen: "Ugh, I don't feel so good . . ."

On Day Thirteen the Chinese are all partied out. They purge their systems by eating a pure vegetarian diet on this day, which is also devoted to Guan Yu.

While we're sobering up and fasting, it's a good time to read Sharlyn Lauby's "Losing Your Driver's License Can Impact Your Career," in which she interviews Heather Bussing of HR Examiner.

You may also enjoy some a cold glass of milk and some "Employment Law Leftovers" if you can't face what's up for the new year just yet.

Day Fourteen: ????

Wikipedia makes no reference to this day. I guess nothing happens?

Since nothing's going on, this would be a good time to read my excruciating "2011 labor and employment law year in review." Guaranteed to have you begging for mercy!

Day Fifteen: Grand Finale.

The fifteenth and last day of the Chinese New Year is the Yuan Xiao Festival (aka the "Lantern Festival"). The candles and lanterns are lit to guide the good spirits to one's home. In Malaysia and Singapore, traditions similar to Valentine's Day are celebrated.

While we're on the subject of romance and unrequited love, be sure to read Gary Gwilliam's "Reasons to Pursue Emotional Distress Damages in Employment Cases."

Dragon.Day 15.Chinese_lantern_night_sky_lijiang_yunnan_china.jpg

Our "host with the most" in February will be John Holmquist. Please join us then, and happy Chinese New Year!

Rev. Dr. Martin Luther King, Jr., January 15, 1929-April 4, 1968

Posted by Robin E. Shea on January 16, 2012

Martin_Luther_King_Jr_with_medallion_NYWTS.jpg"Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that."

This week in labor and employment law - Marx Brothers Edition

Posted by Robin E. Shea on January 13, 2012

Marx_Brothers.public domain.jpgIt's been another zany week or so in the world of labor and employment law, rivalling Groucho, Harpo, Chico and Zeppo. Here are a few items that jumped out at me. (Each subhead is a line from a Marx Brothers movie or the title of a Marx Brothers movie. Answers at the end.)

"Hurry up, or you'll be late for jail!" Pepsi Beverages (formerly Pepsi Bottling Co.) agreed to a pre-litigation settlement of $3.13 MM to resolve charges that it considered arrest records in making hiring decisions, which, according to the U.S. Equal Employment Opportunity Commission, meant that approximately 300 otherwise-qualified African-American applicants were rejected. The rejected applicants will be offered positions with the company as part of the settlement. The EEOC is on record as strongly opposed to the use of virtually any criminal background information in connection with employment decisions. However, it appears that the company was using arrest as well as conviction information, which has been a no-no for a long time, and was flatly rejecting anyone with a "history" instead of considering the impact of the conviction on the particular job . . . another no-no. The company has agreed to revise its employment policies as part of the settlement.

Horsefeathers. A federal judge in Chicago denied a motion to compel in a class action filed by the EEOC against carrier DHL, alleging widespread racial segregation in job assignments. DHL requested detailed information and documents from each class member about subsequent employment, as well as personal medical information. The judge denied the request for information about subsequent employment because the EEOC had abandoned its claim for back pay or front pay -- therefore, that information was not "reasonably calculated to lead to the discovery of admissible evidence." Although the EEOC was seeking compensatory damages for emotional distress, the judge held that the medical information did not have to be produced because the agency was seeking only "garden-variety emotional distress" based on humiliation, embarrassment, and the like. Not all courts have bought this "garden-variety emotional distress" argument. Some have found that if a plaintiff pursues an emotional distress claim, he or she has opened the door to discovery of evidence regarding her medical, mental, and emotional condition.

"The party of the first part shall be known in this contract as the party of the first part." National Labor Relations Board Chairman Mark Pearce and now-ex-Member Craig Becker invalidated an arbitration agreement that precluded employees individually from pursuing class or collective actions. (Member Brian Hayes, the only Republican on the Board at the time, had recused himself.) Pearce and Becker said that the agreement interfered with employees' rights under Section 7 of the National Labor Relations Act to "engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .." Significantly, the employer was non-union and the agreement was not collectively bargained. The two-member panel invoked the same "protected concerted activity" clause that has been used against non-union employers who crack down on employees who use social media to rant about their employers.

Monkey Business. Speaking of the NLRB, President Obama and the Republican members of Congress have been in quite a battle over recess appointments. Yesterday the U.S. Department of Justice released an internal memorandum that supported the President's position. A recap: As we have reported before, Member Becker's recess appointment to the NLRB expired at midnight December 31, and his last day at work was January 3. Becker's departure left the Board with only two members (Pearce and Hayes) and three vacancies, and the Supreme Court has said that a three-person quorum is necessary for Board action. In an attempt to prevent Obama from making more recess appointments, the Republicans held pro forma sessions every three days during their holiday break. No business was conducted during the pro forma sessions, which lasted about one minute each. Technically, this meant that Congress was not "in recess" for the whole break and that Obama therefore would not be authorized to make any recess appointments. However, Obama outmaneuvered the Republicans (for now, anyway) and, armed with the DOJ memorandum, which declared the pro forma sessions a technical maneuver that could be ignored, made recess appointments to fill the three vacant positions. Legal challenges are sure to ensue. Bring your popcorn.

"Hail, hail Freedonia, land of the brave . . . and . . . free!" In a nice victory for religious employers, the Supreme Court unanimously held that there is indeed such a thing as a "ministerial exception" to the federal anti-discrimination laws arising from the Establishment and Free Exercise clauses of the First Amendment, and that it applies to people other than the clergy. The plaintiff in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was a teacher who was formally considered a "minister" in the church and taught religion and led devotions and worship services, but who spent the majority of her time teaching "secular" subjects. She alleged that her employment was terminated in retaliation for exercising her rights under the Americans with Disabilities Act. Although many lower courts had recognized the ministerial exception, the Supreme Court had not addressed the issue. The EEOC and the government had argued unsuccessfully that the exception was unnecessary. The decision means that, if a court finds that the ministerial exception applies to a case, the case will be dismissed. (Religious employers who are not Protestant Christians will be particularly interested in the concurring opinion by Justices Samuel Alito and Elena Kagan -- not a combination you see every day! -- in which they provide an excellent discussion of how the exception should apply to employees who perform religious functions but are not "ministers.")

"I'll see my lawyer about this as soon as he graduates from law school." The U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment in a lawsuit filed by a library employee of Ohio State University who alleged that he was ostracized and constructively discharged after he recommended a "freshman-reading" book that had a chapter describing homosexuality as aberrant behavior. The Court found that the plaintiff had waived his claims for damages by first having filed a state-court lawsuit. (Under Ohio law, this results in a waiver of the right to recover damages in any other forum.) His First Amendment retaliation claim was subject to dismissal because, although his speech pertained to a matter of public concern, he spoke in connection with his job duties and not as a "citizen." He also could not establish "adverse action" because both his dean and his immediate supervisor had supported him, even though many of his peers were vocally critical of him and had called for his termination. Finally, the Court rejected his claim that the OSU sexual harassment policy was unconstitutionally overbroad and vague.

 

MARX BROTHERS TRIVIA:

"Hurry up, or you'll be late for jail!" A Night at the Opera, 1935.

Horsefeathers, 1932.

"The party of the first part shall be known in this contract as the party of the first part." A Night at the Opera, 1935.

Monkey Business, 1931.

"Hail, hail, Freedonia [etc.]" Duck Soup, 1933.

"I'll see my lawyer about this as soon as he graduates from law school." Duck Soup, 1933.

Employment law leftovers: Best of 2011, what's up for 2012, and resolutions

Posted by Robin E. Shea on January 05, 2012

After a great holiday feast, isn't it fun just to eat the leftovers? Like a nice, cold roast beast sandwich with a wedge of leftover pie? Yum!

leftover pie.jpgHere are some great labor and employment blog "leftovers" from the holidays that I hope you will enjoy as much as I did, followed by a few new year's resolutions for employers and employees. Please add to my list!

In case you were chillaxin' last week and missed it, here is a link to my 2011 labor and employment year in review. With President Obama's recess appointments (thanks to Eric B. Meyer of The Employer Handbook), it's already getting stale, so hurry up and eat!

More tasty cold stuff from around the internet:

The Evil HR Lady tells you how to know if you are the "Kim Jong Il" of your company. Funny, and good advice, too.

Daniel Schwartz of the outstanding Connecticut Employment Law Blog uses his Magic 8 Ball to let us know what to expect in the world of employment law in 2012.

And Donna Ballman of Screw You Guys, I'm Going Home uses the magic 8-ball app on her iPad to make her 2012 predictions from a plaintiff's perspective. Donna, you are so high-tech!

Philip Miles of Lawffice Space shares with us his Top 5 Employment Law Cases of the Week for 2011. If you ever wanted to know about "Crazy Bi**h Bingo" (and who doesn't?), be sure to check Philip out!

Here's a favorite from Jon Hyman of Ohio Employer's Law Blog: Resolve this year to properly handle no-fault attendance policies. Since the $20 million EEOC/Verizon settlement, this is more important than ever.

OK, is that tryptophan kicking in yet? But, wait! Don't get too comfy, because now it's time for some employment New Year's resolutions:

1. If I am an employer, I will make sure all of my supervisors and managers have harassment fat guy eating salad.jpgtraining this year. At a minimum, the training will cover harassment based on race, national origin, religion, disability, and age, as well as sex. If my state or company policy prohibits other types of harassment, I will be sure that those types are covered as well.

2. If I am an employee, I will refrain from using social media to bad-mouth my boss, my company, my co-workers, or my customers . . . even if the National Labor Relations Board says it's legal for me to do so.

3. If I am an employer, I will review my attendance, medical leave, and reasonable accommodation procedures to make sure that they comply with the Americans with Disabilities Act. If they don't, I will make the appropriate changes right away. No procrastination!

4. If I am an employee, I will show up for work on time every day unless I have a very good reason not to, and I will give my employer a fair day's work for a fair day's pay, with no "drama."

5. If I am an employer, and if I haven't done it recently, I will have a wage-hour audit in 2012 to ensure that my employees are properly classified as exempt/non-exempt, that the non-exempt employees aren't working off the clock, that I'm not violating child labor laws (especially if I'm in the food or hospitality industry), and that I don't have any employees whom I am improperly treating as "independent contractors." If it turns out that I'm doing anything wrong, I will promptly fix it. No dawdling!

6. If I am an employee, I will comply with my employer's rules about appropriate behavior at work, including but not limited to rules pertaining to honesty, harassment and bullying, and safety.

7. If I am an employer, I will make sure that I am in compliance with the Genetic Information Non-Discrimination Act, and in particular that I am providing the "safe harbor" language whenever I sent one of my employees to the doctor.

8. If I am an employer, I will re-familiarize myself with the concept of "retaliation" and consult with an attorney whenever an employment decision looks like it may be close to the line. I will not wait until after the damage has been done.

Ugh. And this post started out so nice. Please add any resolutions you think employers or employees should make this year. And a safe and prosperous 2012 to you all!