A federal judge in Pennsylvania held this week that U.S. Steel had the right under the Americans with Disabilities Act to conduct random alcohol tests on probationary employees at a coke plant, granting summary judgment to the company in a class action that had been filed by the Equal Employment Opportunity Commission.

The court found, in a "case of first impression,"* that the random tests were "job related and consistent with business necessity," the ADA standard that applies when an employer requires a current employee to undergo any type of medical examination.

*This is the first time that any court has addressed this issue.

This is huge. Unless, of course, the decision is reversed on appeal. The EEOC says it is considering its options. I will be surprised if they don't appeal, especially since the court specifically rejected the EEOC's Enforcement Guidance on this topic.

U.S. Steel had problems with tippling/hung over employees at its plant in Gary, Indiana, and with the full cooperation of its union, adopted a mandatory random alcohol testing policy for probationary employees in safety-sensitive positions. The stated rationale for limiting the testing to probationary employees was that the newbies might not fully appreciate the safety implications of coming to work drunk or hung over while the more experienced employees would.

(I am skeptical of this explanation. I suspect this was the only way the company could get the the union to agree to the program.)

A probationary employee at a Pennsylvania coke plant tested positive. (She claimed that her diabetes caused her to have a false positive result.) She filed a charge, and the EEOC jumped on it like a duck on a june bug.

It is not surprising that the EEOC went after U.S. Steel and the union. The ADA has a specific exemption that allows testing (and discipline or discharge) for "current use of illegal drugs." I am overgeneralizing, but random or universal drug tests are usually fine under the ADA.

But the exemption does not apply to alcohol, or even alcohol abuse. Yes, I know alcohol is a drug. Yes, I know alcohol abuse is probably a bigger problem in the general population than abuse of illegal drugs. Yes, I know a drunk employee is every bit as much a safety hazard as his counterpart who is stoned on marijuana.

But there aren't a lot of pot smokers in Congress (at least, none that I know of), while there are a lottttttttta drinkers.* So there we are.

*Pure speculation on my part.

If you spike your morning coffee with a little of this . . .

The rules that have applied to alcohol -- as opposed to drug -- testing until now were understood as follows:

*You can test a current employee for alcohol if you have "reasonable cause" or a "reasonable suspicion" that the employee is impaired. This could include post-accident testing if you have reason to believe that alcohol use might have contributed to the accident. It could also include testing in connection with a last-chance agreement.

*You can take appropriate action against a current employee for job-related problems that might be the result of alcohol abuse, such as tardiness or absenteeism, violation of safety rules, possession or consumption of alcohol on company premises, or coming to work while impaired.

*But you cannot conduct "random" tests for alcohol use on current employees unless another federal law requires that you do so. (Exceptions apply to employees in public safety positions, such as police officers and firefighters.)

So, now you see why this decision is potentially so dramatic.

U.S. Steel raised some procedural issues, but on the ADA issue, it made three arguments:

1) Random alcohol testing of probationary employees in this type of work environment was, in fact, "job related and consistent with business necessity."

2) The alcohol testing was part of a "voluntary wellness program," which meant that U.S. Steel had the right to do the testing even if it wasn't "job related and consistent with business necessity."

3) Other federal laws required that U.S. Steel do the testing; therefore, the testing did not violate the ADA.

The court (correctly, in my opinion) flatly rejected arguments 2 and 3. This was obviously not part of a "wellness program," the judge said, and it sure as heck wasn't "voluntary." If you didn't cooperate in the testing, you were fired. Even if you did cooperate, you were fired anyway if you tested positive.

The judge also found that although other federal laws (like OSHA) were implicated, none of them actually required random testing of employees for alcohol. If another federal law requires you to do something that would otherwise violate the ADA, you are allowed to comply with the other federal law. But to qualify for this "other federal law" exemption, the other federal law has to actually mandate what you did, in conflict with the provisions of the ADA. If there is no real conflict between the ADA and the other federal law, then you have to comply with both laws.

. . . then stay away from here until it wears off!

However, the judge found in U.S. Steel's favor on Issue #1. A coke plant is a dirty, heavy, dangerous place with molten coke, temperatures reaching 2,100 degrees, and fire. (See photo above.) Coming to work in this environment with any impairment was taking your life into your hands, as well as the lives of co-workers. The court also noted that employees are required to wear heavy protective gear over their faces that makes it difficult, if not impossible, for a supervisor to smell an employee's breath, the way you might be able to do in an office, a fast food restaurant, a distribution center, or a microchip factory. U.S. Steel had previously had alcohol-related problems at the Gary facility, so they weren't just dreaming up this problem. And the union had cooperated in creating the program, which the court said was further evidence that alcohol abuse was a genuine concern and that the random alcohol tests were necessary.

As stated above, the court rejected the EEOC's Enforcement Guidance, which requires an individualized analysis before you can send an employee for a "medical examination" of any kind. The court also found that the EEOC's exceptions, limited to public safety employees, were not rational or justified by the language of the ADA.

So . . . if you are an employer in a heavy/hazardous industry, keep an eye on this case. Until the case is resolved on appeal (assuming that the EEOC appeals), it's probably wise to continue complying with the EEOC's guidance. But this is a big preliminary win for employers in heavy industry.

And hats off to U.S. Steel for being willing to be the guinea pig.

Image credits: Wikimedia Commons. Third photo is of a steel mill for another company, not U.S. Steel.

Suzanne Lucas of The Evil HR Lady has a depressing-but-funny post about the lamest employee Christmas gifts ever.

And, only slightly off-topic, you may enjoy reading about tacky Christmas sweaters (check out the very last guy - hilarious!), or the woman who got tasered at an Apple store in Massachusetts because she wanted to buy too many iPhones as Christmas gifts for her relatives in China, or (if you have the intestinal fortitude) this great idea (not!) for a last-minute gift . . .

*     *     *

. . . For those of you who are still here, or who are still speaking to me after that last link, here is Bad Santa's workplace-holiday advice.

(WARNING: I think Bad Santa may be a plaintiff's lawyer.)

For the Ebenezer Scrooges* out there:

*If your company is suffering in this shaky economy, please know that this does not apply to you. I'm addressing this one to the companies (and there are many) who have done reasonably well in the last year.

Be a cheapskate.* Nothing says "employee appreciation" better than a coffee mug, key fob, or calendar with the company logo on it. These things are given away free at marketing events, but that doesn't mean they're free to you. And, what better way to make your employees feel good about themselves?

"A year of dedicated service, and we get a key fob with company logo? What a cheap trick!"

Make attendance at your party mandatory. After all, how else will you guarantee that anybody will show up for it? And, that way, if somebody gets hurt at the party, you'll get to be charged for their workers' comp.

Don't pay them for their time at the mandatory company party. In fact, even if attendance is optional, don't pay them. Dude, it's a party. They aren't contributing anything to your bottom line while they're drinking Russian tea (because you're too cheap to pay for alcohol) and pretending to be amused by your Santa costume (which you wear while handing out the key fobs with company logo). If attendance is mandatory and you don't pay, sure, you could have a little problem with the Fair Labor Standards Act, but so what? And if attendance isn't mandatory, no FLSA problem whatsoever! Just because they may not be too happy that they are losing a half day of paid work . . . or having to take away from their precious iPhone taser/shopping time after hours without pay . . . during the most expensive time of the year . . .

When scheduling your party, do what is convenient for you. You are the boss. What you say, goes. Your way, or the highway. If your employees have young children and have to hire a babysitter so they can attend your mandatory Russian-tea-and-company-logo-key-fob party -- well, that's the way the Christmas cookie crumbles.

Make sure everyone understands that they are expected to give a nice gift to you. Ebenezer Scrooge was really kind of a sucker, when you think about it, because he never spent any money on himself. Don't be that guy. Company-logo key fobs don't grow on trees, so it's only fair that the employees chip in and get you a totally awesome gift. Maybe a massage chair with Bluetooth technology for your office, while you listen to Cheap Trick on your noise-cancelling headphones and review Russian tea recipes for next year's party.

And for you Fezziwigs out there . . .

The holidays are FUN! Don't be a wet blanket! By, say, making sure that employees who have had too much to drink at the party have a safe way to get home, or even -- heaven forbid! -- putting some reasonable limits on alcohol consumption. You don't want to get the reputation for being a bluenose.

The holidays are FUN! Don't let the lawyers take all the fun out of your generosity! So, your lawyer tells you that the holiday bonus has to be included in calculating non-exempt employees' regular rate? And that your bonus (under certain circumstances) may set a precedent that you will be required to continue in the future? This isn't the time for legal nitpicking! Put a sock in it, Atticus Finch, and have a drink!

The holidays are FUN! Don't be a wet blanket! By, say, reminding your employees of your no-harassment policy before the party, as wisely recommended by Jon Hyman, or making sure that your party doesn't degenerate into "Employees Gone Wild." Harassment lawsuits are so . . . January!

So, Joe got a little carried away at the party, and now someone has complained? Boys will be boys! When people get drunk, they do all kinds of crazy things they wouldn't normally do. People won't feel free to have fun if you jump all over their case for everything they did when they had a few too many. You were young once yourself! So, don't investigate that complaint -- it will just stifle Joe and have a chilling effect on everybody else -- and next year's party will be the least, to say the most. You might as well serve Russian tea and hand out company-logo key fobs.

"What?"

Image credits: Wikimedia Commons (party scene is detail from The Orgy, by Diego Rivera). Product links are for entertainment purposes only and are not endorsements.

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).

EEOC does nothing to protect actor wrongfully terminated because of arrest record. (NOTE: I'm being tongue-in-cheek here.) You have probably heard by now about the arrest of actor Fred Willard for alleged "lewd conduct" in an adult movie theater. Willard denies behaving lewdly apart from being in the XXX-rated movie theater in the first place, and his lawyer contends that even if he was more lewd than that (just for the sake of argument), it's not a violation of the law. That's about as much detail as I can provide in a family blog, but Google has plenty more for those who want it.

Anyway, none of this would be a concern to us except that Willard was almost immediately fired from his job as a host of Market Warriors, an antique-shopping show on the Public Broadcasting System. I have just one question: Isn't it against the law to fire people for arrests? Especially when they maintain their innocence and their alleged behavior doesn't endanger anybody? (OK, that was two questions.)

(PLEASE NOTE AGAIN: The above was tongue-in-cheek.)

No private right of action on "lactation accommodation" claim, but retaliation claim survives. A federal court in Iowa has dismissed some claims of a convenience store employee who alleged that her employer did not provide her with a private place to express breast milk, in violation of the Patient Protection and Affordable Care Act (aka "Obamacare") amendments to the Fair Labor Standards Act. (Scroll down to January, "Express yourself.") The court said that the plaintiff had the right to file a complaint with the U.S. Department of Labor but not a lawsuit against the store chain. According to the plaintiff, she was told to express milk in a store office, which worked out fine until she learned that there was a surveillance camera in the office (*yikes!* I am sincere - no sarcasm!). When she told management about the camera, they refused to remove the camera but told her to cover the lens while she was expressing milk. She alleged that she continued to feel uncomfortable and that her milk production suffered as a result. Although the court dismissed her "accommodation" claim, it allowed her retaliation claim to go forward. (She alleged that she was constructively discharged after complaining.)

If you grant leave to an employee who doesn't qualify for FMLA, fine, but do not call it "FMLA leave." A federal court in Pennsylvania has held that a county employer cannot defend an FMLA retaliation claim by contending that the plaintiff wasn't eligible for FMLA leave . . . even though she wasn't. The plaintiff's son had Asperger's Syndrome, and she requested intermittent leave for him even though she had not worked 1,250 hours in the year preceding her request for leave. The county apparently assumed she was eligible and "granted" her FMLA leave and provided paperwork indicating that she qualified for FMLA leave. She was later terminated for attendance and sued for FMLA retaliation (punishing an employee for requesting or taking FMLA leave) and FMLA interference (denying FMLA leave or discouraging employees from requesting or taking FMLA leave). The court dismissed her interference claim because she was indeed ineligible for FMLA leave -- therefore, she had no FMLA "rights" for the county to interfere with. But the court allowed her retaliation claim to go forward because the county had led her to believe that she was eligible and could have the time off that she had requested.

Gender pay gap widens? Or, is it just that men are going back to work? Which would be good, right? A recent report from the U.S. Department of Labor's Bureau of Labor Statistics shows that median weekly earnings for men working full-time increased 4.8 percent in the second quarter of 2012. This resulted in an increase in the gender pay gap among full-time employed people. In the second quarter of 2011, women employed full-time were paid 83.5 cents for each dollar that men employed full-time were paid. In the second quarter of 2012, the share for women employed full-time dropped to 79.7 cents on the "male dollar." Of course, the statistics are comparing only individuals who are employed full-time, and men have suffered disproportionately from unemployment in the current economy -- so much so that it has been called a "mancession." Suzanne Lucas of Evil HR Lady has a good discussion of why women shouldn't be up in arms about this latest "pay gap" news.

Feds say work-life balance improves safety and health on the job. Now you have no excuse! Not long ago, I had a post on work-life balance and its importance. The National Institute of Occupational Safety and Health has now come out with an article saying that work-life balance contributes to a healthier and safer work force.

Speaking of work-life balance . . . Constangy, Brooks & Smith has extended the entry deadline for its 7th annual Work-Life Balance Award until August 10. If you're interested in entering your company or in-house legal department, please go here to get all the info and download an entry form. There is no cost to enter! If you have any questions, you can contact Wendy Angel.

"Curioser and curioser": Check out the July edition of the Employment Law Blog Carnival. The always-excellent Heather Bussing of HR Examiner has done a great job with the latest edition of the Employment Law Blog Carnival, with links to posts by such luminaries as Jon Hyman, Eric Meyer, Donna Ballman, Mark Toth, and Phil Miles, and many others among whom I am honored to be included. It's definitely worth a read.

Photo credits: Wikimedia Commons (public domain). Painting is Mary Cassatt, "Baby John Being Nursed" (1910).
Hat tip to Bloomberg BNA for every item except Fred Willard and Blog Carnival.

You know the old saying, "If it seems too good to be true, it probably is"? Well, it appears that this may be the case with the new "sweet deal" the Internal Revenue Service is offering to employers who agree to reclassify their "independent contractors" [sic] as "employees" in exchange for some admittedly generous breaks.

The IRS announced this week that it is offering a REALLY, REALLY NICE THING to employers. :-)  If an employer promises that it will treat its independent contractors as employees going forward and enters into an agreement with the IRS, the IRS will assess employment taxes for only the tax year before the agreement was entered and at a reduced rate, with no penalties or interest, and no audits. The program is aimed at small employers, but all employers are welcome. Jewell Lim Esposito at our sister blog, Employee Benefits Unplugged, has more details about the IRS deal and thinks it's great from a pure tax standpoint.

I agree. But, as Jewell also notes, the news release says nothing about amnesty on all liability resulting from a misclassification.

I must admit that I wondered why this Administration, which is usually aggressive toward employers, is all of a sudden being so sweet and lovable?

(I am such a cynic.)

It then occurred to me: But, of course! This is to allow that other agency, the U.S. Department of Labor, which presumably will not be a party to the IRS/employer agreement, to come in and sue the pants off the employer for back benefits and wage-hour violations. Because, you see, misclassified "independent contractors" don't get benefits or overtime, and they may not even be getting the minimum wage once their "fee" is divided by hours worked.

My paranoia was really raging now, and I remembered another news item that came out at the beginning of this week: Secretary of Labor Hilda L. Solis announced a "cooperative" initiative in which the IRS, the DOL, and 11 state governments* are going to start working together to fight misclassification of employees as independent contractors. In addition, the Office of Federal Contract Compliance Programs (the affirmative action guys) and the Occupational Safety and Health Administration are among the agencies who will be receiving and sharing information.

*The 11 states who entered into the memorandum of understanding or have agreed to do so are Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Missouri, Montana, New York, Utah and Washington.

(Hat tip to Bureau of National Affairs for both of these news items.)

So! Aha! Putting it all together, here's what the deal really appears to be: A naive (probably small but could be large) employer who has some misclassified folks will read about the IRS deal and think, "What have I got to lose? I'd be a fool to turn this down!" So he signs the agreement with the IRS.

Bam! Six months later, the DOL -- who has received from the IRS the list of unsuspecting employers who entered into this agreement admitting that they were doing it wrong -- comes out for an investigation and hits the employer for overtime and possibly minimum wage violations. Then, the employer's state government -- armed with the same information -- comes out and clobbers the employer for workers' compensation premiums and benefits, and possibly other benefits that the state requires employers to offer to employees. Bam! Bam!

But, wait! There's more! The newly classified employees might have claims for other employment benefits as well, as Microsoft learned the hard way. Bam! Bam! Bam! Then, OSHA and the OFCCP and who knows who else can come in and kick the employer a few more times while he's down. Bam! Bam! Bam! Bam! Bam! (etc.)

THE MORAL: If you have "independent contractors" who are misclassified, by all means get that fixed as quickly as you can. As long as the workers are misclassified, you are potentially liable for back taxes, including FICA, and penalties, back benefits, and back wages. In fact, you can even be liable for severance pay in the event that the faux independent contractor was let go under circumstances that would have entitled her to severance if she'd been an employee. (I actually had this happen to a client once.)

To repeat, if you're doing it wrong, stop it now. But don't be too eager to enter into this deal with the IRS, and definitely do not enter it without consulting with your attorney. Situations vary, and the IRS deal may be good for some, but you also may be much better off taking your chances with an IRS audit (which may or may not ever happen). Meanwhile, you will not be erecting a large neon sign with flashing lights saying, "Here I am, Hilda Solis and everybody else -- I'm guilty -- come and get me!"

Just call me Jim Garrison.

If you're going to be an SOB, make sure you're an SOB to everybody. A federal district court in Kentucky granted summary judgment to the employer in a sexual harassment case. The female plaintiffs alleged that a charlatan "turnaround specialist" hired by their CEO was not "motivated by sexual desire" but was simply abusive and mean. The court found in favor of the employer based on the "equal opportunity harasser" concept: the evidence clearly showed that the "specialist" was abusive and mean to everybody, not just women. Among other things, he had "invited" the male production manager to step outside to the parking lot, presumably to fight. He had also cursed at another male employee, threatened him, and thrown a piece of paper in his face.

The "equal-opportunity harasser" concept is well established in the law because the essence of "discrimination" is to treat one group differently from others. If the plaintiffs could have shown that this consultant was a bully only to women, then they would have had a claim. But since he treated both sexes equally badly, he could not be found to have discriminated based on sex. For the same reason, the women's retaliation claims under Title VII of the Civil Rights Act of 1964 also failed -- because their complaints about the consultant were not complaints of sex discrimination/harassment, they had not engaged in activity protected by Title VII.

That said, consultants and managers who behave this way are toxic and should be dealt with promptly. In this case, the employees complained to the CEO, who removed the consultant from "service." (The plaintiffs sued after they were terminated for other reasons several months later.) Even if the employees don't have a valid discrimination claim, the morale issues caused by a bad boss are obvious. And employees who feel that they have not been treated with respect and dignity will be much more likely to take legal action against the company.

Dirty old men need love, too . . . or do they? A perennial problem for health care facilities, and especially nursing homes, is the patient who hasn't had the benefit of modern EEO, diversity, or harassment training, and doesn't understand that he or she cannot use racial epithets or grope the staff. Often, these patients are so elderly that they grew up in a completely different era and may not be familiar with modern standards of behavior. Or they may have diminished capacity because of senile dementia or Alzheimer's.

In any event, they can't be thrown out onto the street as easily as a 35-year-old able-bodied employee who is a jerk at work. But what does the employer do when the patient mistreats, abuses, or even molests the staff?

According to the U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming), the employer has to do more than just give the patient a good talking to. In Aguiar v. Bartlesville Care Center, the defendant nursing home had a resident who in his former life had a history of "domestic abuse, assault and battery, and violation of a protective order." Nonetheless, he was allowed to move freely in the nursing home and subjected the plaintiff, an aide, to unwanted kissing, groping, grabbing, and threatening behavior when she refused his advances.

The Center talked to him about his behavior, and documented the talks, and tried to assign another caregiver to give him his medications, but when another caregiver gave him medication, he would become hostile and go in search of the plaintiff.

After one such incident, in which the resident pursued the plaintiff, got into a shouting/cursing match with her, and called her a "b*tch," she retorted that he was a "pr**k." The next day, when questioned, she admitted to what she had said and was terminated. The person who had terminated her did not know the history of the resident's behavior or of the plaintiff's prior complaints, and was terminating her only because she had admitted to using abusive language with a patient.

The District Court found that the nursing home had done enough to try to end the harassment of the plaintiff and therefore granted summary judgment to the nursing home on the plaintiff's hostile work environment and negligent supervision claims. But the Tenth Circuit reversed, saying that a jury should decide whether the nursing home knew or should have known about the resident's harassing behavior and whether its response was adequate. Among other things, the nursing home said that it offered the plaintiff a chance to move to another area of the nursing home but that she had declined the offer. The plaintiff denied that such an offer had ever been made.

On the other hand, the Tenth Circuit affirmed dismissal of the retaliation claim, finding that there was no evidence that the manager who fired the plaintiff knew anything about the plaintiff's history with this resident.

Why bother? Prompt action by HR does no good, apparently. The U.S. Court of Appeals for the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) reversed a grant of summary judgment to an employer where the plaintiff alleged that her plant manager took her written complaint of harassment, wadded it up saying, "This is bulls**t," tossed it in the trash, and told her to leave and that he never wanted to see her again. Seems like an open-and-shut case for the plaintiff, no? But within two days of this alleged incident, the corporate HR manager told the plaintiff that she was not fired, and offered her the job back. The plaintiff refused to return and was treated as a voluntary quit. For this reason, the District Court granted the employer's motion for summary judgment, but on appeal the Eighth Circuit said that even a two-day termination might discourage a reasonable employee from engaging in the protected activity, so the plaintiff's claims will go to trial.

I just hope that the prompt action by this diligent HR manager will have some effect on the company's damages, if not its liability.

"Gender gap" on Wikipedia? Many of you have probably read about the recent angst of the Wikipedia Foundation about the fact that only about 15 percent of its postings are by females. The Foundation intends to take steps to increase the "female" presence on Wikipedia . . . not clear how that's gonna happen. Like the inflated "gender gap" in pay, which I submit is 99%* a result of voluntary work-family-lifestyle choices made by women, my reaction is . . . who cares? As far as I know, Wikipedia is doing nothing to prevent women from posting as often and as long-windedly as they want. If it turns out that women are statistically not as interested in pontificating on arcane subjects as are men, then let the guys do it. We have enough real problems to worry about.

*This is a statistic that I made up and is completely unscientific.   

In any event, there is no question that UBS would have the right to do this, even in America. Employers are generally free to establish dress and grooming standards that they consider appropriate, with a few exceptions. If a grooming standard tends to exclude individuals of a particular race, sex, nationality, or religion, the employer would have to show that the standard had a legitimate business justification.

For example, African-American men are more likely than Caucasian or Asian men to have a skin condition called pseudofolliculitis barbae. Close shaving aggravates the condition, and so African-American men have been successful suing employers who required male employees to be clean-shaven. However, where being clean-shaven was a safety issue (for example, with firefighters who need a good "seal" for oxygen masks), courts have upheld no-beard requirements.

It is also generally lawful for an employer to have dress and grooming requirements that are different for men and women, as long as the requirements are "equivalent." For example, an employer with a business-dress code can allow women to wear either pant- or skirt-suits while allowing men to wear only pant-suits, and requiring men, but not women, to wear neckties. As another example, an employer could require all employees to wear uniforms but have a "pant" uniform for men and a "skirt" uniform for women.

 On the other hand, it would be sex discrimination for an employer to allow, for example, men to wear "business casual" dress at work and require women to wear uniforms. The uniform indicates lower status, and so requiring only women to wear uniforms would be considered discriminatory.

Of course, if an employee is required by his or her religion to wear a certain type of clothing, such as a Muslim hijab (scarf), the employer would have to allow it unless there was a compelling reason -- for example, safety -- to prohibit it.

Absent evidence of discriminatory impact, then, there should be no problem with UBS's "morphology" requirement . . . if anyone ever figures out what it means.

For the most part, these requirements – called “Plan/Prevent/Protect” – will not be limited to federal contractors but, rather, will apply to all employers covered by the relevant laws.

The proposed changes are dramatic, and shift from what the DOL calls “catch me if you can” (in other words, employer is presumed compliant unless the government is given reason to believe otherwise) to “Plan/Prevent/Protect” (in other words, employer is presumed guilty unless it can prove otherwise). “[E]mployers and other regulated entities will be asked to assemble plans, create processes, and designate people charged with achieving compliance,” says the DOL, and “compliance will be non-negotiable . . ..” (Emphasis added.)

The “Plan” component will require employers to enlist employees in “identifying and remediating risks of legal violations and other risks to workers.” The plans must be made available to the workers “so they can fully understand them and help to monitor their implementation.”

The “Prevent” component will require employers to “thoroughly and completely implement the plan in a manner that prevents legal violations. . . . The employer . . . cannot draft a plan and then put it on a shelf. The plan must be fully implemented . . ..”

The “Protect” component will require employers to ensure “that the plan’s objectives are met on a regular basis. Just any plan will not do. The plan must actually protect workers from violations of their workplace rights.”

In the context of compliance with the Fair Labor Standards Act, Plan/Prevent/Protect will require that employers provide information to employees about how their pay is calculated, and prepare a “classification analysis” with respect to any job that it treats as FLSA-exempt. Of course, the analysis will have to be made available to the employees and the government. The DOL will issue proposed regulations on Plan/Prevent/Protect at some unspecified point in the future.