Employment and Labor Insider - Legalese Is Not Spoken Here

All this week, while formulating my questions for our presidential and vice presidential candidates, I avoided reading what my fellow bloggers were asking because I wanted *sniff* to maintain my independence. Actually, I was afraid that their questions would be so good, I'd be tempted to "borrow" too much.

Lois Lane and I have to maintain our journalistic integrity.

Last night, I finally took a peek at what my colleagues were asking, and there were indeed some great questions that I wish I'd thought of.

Dan Schwartz, who organized our blogfest (thank you, Dan - this was a great idea!), had multiple questions for each candidate. Dan appears to have shared my concerns about the need for more pay equity legislation and was critical of the progress that has been made thus far on enacting the Employment Non-Discrimination Act. My favorite question of Dan's, though, addressed to Governor Mitt Romney, was whether he really intended to "de-politicize" the National Labor Relations Board and, if so, how.

Jon Hyman took a bipartisan approach, asking President Obama why his administration had done so little to help families, implying that Jon favored expansion of the Family and Medical Leave Act. He also implicitly criticized Governor Romney for waffling on the ENDA. But then he asked Vice President Joe Biden to explain to employers his support for an aggressive NLRB and the Employee Free Choice Act, and he implied that Congressman Paul Ryan wasn't a true fiscal conservative -- notwithstanding Ryan's expressed admiration for Ayn Rand.

Mitt Romney was accused of a lot of waffling this week.

Eric Meyer asked Gov. Romney whether he would repeal the FMLA (yeah, right!) and, like Jon Hyman, criticized Vice President Biden for the administration's failure to do more to enact equal pay legislation.  Yesterday, his question to Congressman Ryan was very similar to the one I had asked -- whether Ryan believes there is any role for unions in today's workplace. Eric went one step further than I did, asking Ryan whether he believed in repealing the National Labor Relations Act altogether.

Donna Ballman of "Screw You Guys, I'm Going Home" and author of Stand Up for Yourself Without Getting Fired was the only plaintiff's lawyer in our group, and she did not disappoint. She was unabashedly partisan, and I'll focus on her questions for the Republican candidates, since adversarial questions are more fun.

She asked Romney whether he still believed that management needed to be more cooperative with labor and forgo some perks so that companies would survive, and then commented, "I'm pretty sure I know the answer, but I'd like to hear him backpedal." She also accused him of waffling on whether the minimum wage should be tied to the Consumer Price Index (a position he had taken as governor of Massachusetts but presumably no longer holds). "This election is of huge importance to employees," she concluded. "You can either vote against your own economic interests and can buy into what Fox is telling you, or you can vote with your wallet. For anyone making under a million a year, the choice is pretty clear."

Here's Donna Ballman going after the GOP. (Just teasing, Donna!)

Then it was Ryan's turn to face Donna. She raked him over the coals for his comment at the Republican National Convention implicitly blaming Obama for a plant closing in Wisconsin when the plant closing had actually been announced during the end of the Bush Administration and only carried out during the Obama administration. (She also had questions about his support for extending unemployment benefits, his support for Governor Scott Walker of Wisconsin, and of the ENDA.)

In short, it was a lively week, and a good time was had by all. I hope you enjoyed it, too. The first real presidential debate will be next Wednesday at 9 p.m. Eastern on most major TV networks and streamed over the internet. Be sure to tune in and see whether the moderators use any of our questions! I am sure they will.

Photo credits: Wikimedia Commons.

This week, several of us bloggers (Dan Schwartz, Donna Ballman, Eric Meyer, Jon Hyman, and I) will be choosing a debate question on a labor and employment law topic for each of the Presidential and Vice Presidential candidates.

DISCLAIMER: I have tried to ask an "adversarial" question of every candidate. Please don't be offended, and please be aware that my questions may or may not reflect my actual political views.

Vice President Joe Biden -- today is your lucky day!

The Democratic Party Platform advocates the enactment of the Employment Non-Discrimination Act, which would prohibit employment discrimination based on sexual orientation and gender identity. Earlier this year, you publicly advocated same-sex marriage, which prompted President Obama to do likewise.

"I'm much better when I wing it. Bring it on, Baby!"

Based on our experience with courts' interpretations of other anti-discrimination laws such as Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, we can assume that if the ENDA became law, comments by supervisors and managers about sexual orientation or gender identity would be admissible as evidence of a discriminatory motive in an ENDA charge or lawsuit. Comments by employees as well as members of management, if "severe or pervasive," could be treated as unlawful harassment based on these characteristics. Although the ENDA includes an exemption for religious organizations, there is no explicit exemption for individual employees who act according to their religious beliefs.*

*I'm not talking about the Fred Phelpses of the world. I'm talking about the nice Baptist lady who has sincere and firm traditional beliefs but wouldn't deliberately hurt a fly.

Here is my question: Do you see any inherent conflict between the ENDA (assuming it is interpreted this way) and the rights under Title VII of employees to exercise and express their religious beliefs without discrimination, and to religious accommodation? If not, why not? If so, how do you propose to enforce the ENDA while at the same time protecting employees whose religious beliefs may not be completely aligned with the ENDA?

YESTERDAY: Governor Romney, what do you really intend to do -- specifically -- to decrease government intrusion into the workplace?

MONDAY: Mr. President, why do we need the Paycheck Fairness Act?

Tomorrow: Paul Ryan is in the hot seat!

This week, several of us bloggers (Dan Schwartz, Donna Ballman, Eric Meyer, and Jon Hyman, and I) will be choosing a debate question on a labor and employment law topic for each of the Presidential and Vice Presidential candidates.

DISCLAIMER: I have tried to ask an "adversarial" question of every candidate. Please don't be offended, and please be aware that my questions may or may not reflect my actual political beliefs.

Mr. President, today it's your turn!

"Yikes. I wish I'd studied a little harder last night."

The Democratic Party platform says that you advocate the twice-failed Paycheck Fairness Act, which would amend the Equal Pay Act and would, among other things,

*Make it easier for plaintiffs to bring class actions against employers for pay discrimination -- all members of the class would be in the lawsuit by default (unless they affirmatively choose to "opt out") instead of having to affirmatively choose to be in the lawsuit.

*Allow recovery of compensatory and punitive damages as well as back pay.

*Sharply restrict the employer defense, currently in the Equal Pay Act, that a pay differential was based on "any factor other than sex."

*Provide for federal grants to help women with their salary "negotiating skills."

After the most recent failure along party lines of the Paycheck Fairness Act, you were quoted as saying that Republicans put "partisan politics ahead of women and their families."

Here is my question: We already have Title VII and the Equal Pay Act, both of which give remedies to women if they're discriminated against with respect to compensation, as well as your own Lilly Ledbetter Fair Pay Act. (Title VII and the Ledbetter Act apply to pay discrimination based on race, national origin, etc., as well.) An expansion of the existing law is likely to make employers more vulnerable to lawsuits and class action settlement demands in an already bad economy. Given that, what evidence do you have that any significant part of the current sex-based disparity in pay is caused by discrimination against women, as opposed to voluntary work-life choices made by women and men? In light of studies showing that the so-called "gender pay gap" almost disappears when one controls for voluntary choices, why is this legislation necessary and couldn't it actually have the perverse effect of limiting opportunities for women?

Tomorrow: Mitt Romney in the hot seat!

If you're an employment lawyer or Human Resources professional who handles sexual harassment cases, or a federal judge who decides them (bless your heart!), you know there are a lot of "tares" mixed in with the "wheat."

What the heck is a "tare," anyway? Besides being the weight of packaging that is excluded when one calculates net weight, it's a useless weed, presumably rye grass.

These are tares. Who says you never learn anything from this blog?

Anyway, speaking of tares, this week I saw what I think may have been the dumbest sexual harassment case ever. I can't believe that this poor judge had to waste his time writing a 42-page opinion throwing out the case.

The plaintiff worked for an office of the U.S. Department of Agriculture in Edwardsville, Illinois, and quit her job after having made some complaints about her boss. Her sexual harassment claim was for the most part based on the fact that her boss had posed for photos in bib overalls without a shirt underneath.

Now, I know what you are thinking -- *gasp* -- the horror! Yes, I've seen some shirtless guys, too.

Intentional infliction of emotional distress, at a minimum.

OK, OK, OK -- well, maybe this plaintiff was really modest and prim and proper, you say. A woman has the right to say no, and all that.

Yeah, no. According to the decision granting summary judgment to the USDA on her sexual harassment claim, about the same time that this plaintiff was so offended by her boss's bib overalls photo shoot, she had emailed to her daughter and husband a photo of a dude (not the boss) whose bare bottom was showing, accompanied by her commentary, "That's too funny!"

The plaintiff apparently liked to forward stuff. She even forwarded the Power Point show featuring her boss, shirtless, in bib overalls with hard hat, tool belt, and shoes, to other employees, even though the show, according to her, was sexually harassing.

Oh, and did I mention that the bib overall photo shoot wasn't even the boss's idea? A female college intern suggested it as a way to add some levity to a Power Point show about farm loans or something exciting like that. Photos of the intern were also featured in the show, but she wore a sleeveless t-shirt under her bib overalls.  

*sniff* Well, thank heavens for that!!

The rest of the plaintiff's sexual harassment "case" consisted of the following:

*The boss told employees that sweatpants were unprofessional in an office setting.

*The boss didn't tell female employees not to wear "skimpy clothes" to work.

That was the case. Our tax dollars at work.

On the other hand . . . a shirtless guy in bib overalls with hard hat, tool belt, and shoes? That reminds me of a song . . .

"It's fun to stay at the U-S-DA! U-S-DA! You can plant a big crop, you can make a loan deal, you can do anything you feel . . ."

Next week I, along with fellow labor and employment bloggers Dan Schwartz, Donna Ballman, Jon Hyman, and Eric Meyer will have daily posts with a "debate question" for each of President Obama, Mitt Romney, Joe Biden, and Paul Ryan (in that order). On Friday, we'll wrap up and link to each other. It should be a lot of fun -- please join us!

Photo credits: Wikimedia Commons (public domain).

My colleague and fellow blogger Jon Hyman had an excellent post this week about the settlement in the Dura Automotive case -- in which the company tested its employees for both illegal and legal drugs. And that wasn't all -- according to the press release of the Equal Employment Opportunity Commission, employees who tested positive for the designated legal drugs were required to state why they were taking the medications. (In other words, it apparently wasn't enough for the employee to simply produce a valid prescription.)

As Jon points out, this is pretty clearly a violation of the Americans with Disabilities Act. Dura has now agreed to pay $750,000, provide training, and generally go and sin no more.

Off topic: Jon will be publishing a new book next year called Employer's Bill of Rights. Be on the lookout for it!

Back on: I have nothing to add to Jon's discussion of why this policy violates the ADA. Instead, I'd like to talk about what an employer can do when its employees operate heavy machinery or perform other dangerous tasks and the employer wants to ensure that they are operating at full capacity.

Here's what I'd do:

*Treat all employees who perform "hazardous duty" the same, whether they're "white collar" (like sales reps jammin' to Yanni in their Lexii while barrelling down the highway to their next call) or "blue collar" (working in manufacturing environments, climbing utility poles, driving 18-wheelers as opposed to Lexii, or painting the Golden Gate Bridge).

You certainly don't want this guy to be under the influence while at work . . .

. . . but this is a dangerous instrumentality, too. On so many levels.

*Continue testing for use of illegal drugs as always.

*Publish a policy requiring employees who have hazardous job duties (see first bullet) to report to Human Resources or, if you have one, the company medical department if the employees are taking medication that may affect their ability to safely perform their jobs. This is how the inquiry becomes "job-related and consistent with business necessity" as required by the ADA.

*If Mary reports being on a medication that may affect her ability to safely perform the job, then consult with her health care provider as needed and, if appropriate, remove her from the job until she is safe to return. If Mary is eligible for leave under the Family and Medical Leave Act, you should let her take FMLA leave. If she is eligible for short-term disability while on leave because of the medication, do what you can to let her draw it. (Of course, if you have a vacant "safe" position that Mary can perform, you can put her in that position.)

*Let employees know through your policy that if they are on "unsafe" medications indefinitely, the company will have to assess whether they are medically qualified to continue in their jobs. The assessment should be individualized to Joe and his job, as well as any other vacant positions that may be available. Of course, you'd have to consider reasonable accommodations, and assuming that no on-the-job accommodations are available, you should put Joe on medical leave (and be sure to exhaust all FMLA leave) before terminating his employment.

Dura Automotive, this post is for you.  :-)

Off topic again: Congratulations to Dan Schwartz, who this week celebrated the fifth anniversary of his Connecticut Employment Law Blog. If you haven't seen his blog, please pay him a visit. You won't be sorry. Happy anniversary, Dan!

Photo credits: Wikimedia Commons (public domain).

During this season of elections, including the ABA Blawg 100 list (OK, OK, I'm sorry! Today is the last day to vote for Employment & Labor Insider! Please? Thank you!), it seems to be a good time to talk about political discussions in the workplace. It's also on my mind because I was interviewed about that subject this week for an article that will appear in a soon-to-be published edition of Entrepreneur Magazine.

And I noticed that Cynical Girl Laurie Ruettiman had a post up about it earlier this week. My first reaction to Laurie's post was, Darn! She beat me to it! My second reaction was, Wow! Laurie and I are diametrically opposed! I'm all "discretion is the better part of valor," and she's all "free and robust debate [is] so essential to the proper functioning of our system of government."

But after I read her post I decided that, deep down, she really agrees with me and, in fact, has proven my point, along with her commenters.

Political discussions are great (in theory), and we learn from them (in theory). But it's just as true that a lot of people have their minds not only made up but also deeply entrenched. And they're emotional about it.

I'm not just saying "other" people are like this. "I" am like this, too.

Unfortunately, our society is on opposite sides of a chasm, with no way across. Like Democrat to Republican, or vice versa.

Was it ever thus?

Maybe it's always been this way. I'm reading a biography of Abraham Lincoln* right now, and it sure seemed to have been that way during his time. Probably much worse than now. At least in our time, Texas Gov. Rick Perry's talk about secession didn't go very far.

*Really good book, by the way. Not a paid endorsement.

"You think you got troubles? I'll give you troubles!"

The point is, if you feel very strongly that you are right, then you are probably going to have a tough time engaging in "civil discourse" with someone who thinks you are full of baloney, or Satan. And vice versa.

Game, set, match

Here's how Laurie proves my point. She says political debate is swell, but then in the next breath she says one should immediately terminate the conversation in the event of "racist, sexist, or homophobic" talk. I'm like, well, of course. But then I'm like -- uh, just a minute, could I please have a little clarification? What exactly do you consider "racist, sexist, or homophobic"? Those categories could potentially encompass a lot of political issues, especially when on her video Laurie adds "code words" to her list of taboos. (Laurie, please read my post from last week about the word "monkey.") One of her commenters implies that it's homophobic to think that it's ok to eat at Chick Fil-A. And Laurie seems to agree!

Is this sandwich inappropriate?

Laurie and her commenters have very strong views about some certain stuff. A lot of people agree with them. A lot of people don't. "And never the twain shall meet." I suspect that Chick-Fil-A defenders on Laurie's blog might not feel very welcome to engage in "free and robust debate so essential to the proper functioning of our system of government." Presumably, that is why I didn't see any comments sticking up for Chick-Fil-A or disagreeing with Laurie in any material respect.

So. Back to political talk in the workplace. I'm a woman of one word: Shhh. If you know that you and co-worker Zelda agree on absolutely everything except whether Mitt Romney loves Ann more than Paul Ryan loves his mom, then fine. Talk politics with Zelda. You'll be ok, notwithstanding this minor point of disagreement. If you and co-worker Marvin disagree only as to whether Michelle Obama or Hillary Clinton is/was the greatest first lady ever in the history of the universe, then ditto.

But if you were watching the GOP convention and shouting "Yesssssss!" to every line and tweeting pictures of empty chairs, then don't even try to talk politics with the co-worker who thinks Sandra Fluke is the glorious future of American womanhood. Not only will you never agree, but you in all likelihood will also never be able to have a civilized conversation about your differences. You are too far apart.

This election will be over in two months (not! nearly! soon! enough!), and you, and Zelda, and Marvin have many more years to work and put your hard-earned money into our almost-bankrupt Social Security system before that Paul Ryan lookalike dude pushes your wheelchair over the cliff. (Kidding!) Meanwhile, you, Zelda, and Marvin have to see each other every day and get along. The best way to have a long and prosperous working relationship is to keep your controversial views to yourself. You can always vent with (at?) your family and friends, or Sean Hannity or Keith Olbermann, as the case may be, or on the internet.

After biting his tongue all day at the office, Puff can't wait to enter the No-Spin Zone.

By the way, did I mention that there aren't any First Amendment rights in the private sector workplace? There aren't.

Many thanks to Stephanie Thomas of The Proactive Employer for including me in her webcast panel yesterday, in which we answered "bizarre HR questions." Stephanie had some doozies, and I was honored to be on the panel with excellent fellow bloggers Jon Hyman, Eric Meyer, and Phil Miles. If you missed the live program, you can listen to it at your convenience by going to her website and clicking the "listen on-demand" link. Because of some technical difficulties, I wasn't able to get onto the webcast until about the 20-minute point, but once I got on, they couldn't shut me up. You've been warned.

Photo credits: Wikimedia Commons (public domain).