If your job makes you want to kill yourself, you may (or may not) be an ADA "direct threat"

Posted by Robin E. Shea on March 22, 2012

If your job makes you want to kill yourself, are you a "direct threat" to your own safety?

In what has to be one of the weirdest ADA cases I've seen, a woman (let's call her "Gladys") was hired as a temp for a tech company in Seattle (let's call it "Initech"). A month later, Initech brought Gladys on as a regular employee. A month after that, Gladys told Initech that she suffered from chronic pain. Initech was like, hey, no problem, we will try to accommodate you.

GaryColeJan09.jpgUm, yeah. That'd be terrific.

Gladys was put on a reduced schedule and was eventually authorized to return to work full-time. Initech assigned her to a shift that ran from 6 a.m. to 3 p.m. Gladys didn't care for those hours. She told a manager that the schedule was stressing her out and depressing her. Then she sent the manager a Facebook message and said that she was spending the whole day at work trying to think of ways to . . . kill herself.

Because Gladys's suicidal ideations were related to her job, Initech (reasonably) determined that she might be a "direct threat" to her own safety if she continued to work there. She claimed in other postings that she had "PTSD*" and felt like her workplace was a "war zone."

*Post-traumatic stress disorder

"Direct Threat"

I don't believe I've ever posted about the "direct threat" defense under the ADA. If an employee's disability causes him to be a "direct threat" to himself or others, it might be lawful for the employer to take appropriate action "against" the employee. For example, the employer might be able to refuse to hire, or to require an employee to take a medical leave, or even to fire an employee.

Or it might not be able to do any of those things. If a reasonable accommodation would eliminate or reduce the direct threat, then the employer would have to try to accommodate.

In determining whether an applicant or employee poses a "direct threat," employers and their medical consultants should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the harm will occur, and the imminence of the risk.

Here endeth the lesson.

So Gladys said on Facebook that her job made her want to kill herself. What's Initech supposed to do with an employee like this?

 You can almost see the wheels turning in Lumbergh's head. "Um, yeah . . . maybe we can turn from 'Dr. Jekyll' into 'Mr. Hyde,' and shake her that way. Yeah, that'd be terrific."Jekyll-Hyde.CC_No_13_Dr_Jekyll_and_Mr_Hyde.jpg

*DRAMATIC REENACTMENT*

"Gladys, mmm, yeah, come in. Take a seat. Can we bring you a cup of coffee? Now, mmm yeah, Glads, we are a little concerned about bringing you back to work, since this job makes you suicidal. But the ADA requires that we engage in an 'interactive process.' So we would like to engage in the 'interactive process' with you. That'd be terrific."

"Sure! What does that mean, and what do I have to do?"

"Well, mmm, yeah, we need for you to engage in the interactive process with us."

"Sure! What does that mean, and what do I have to do?"

"Well, mmm, yeah, we need for you to engage in the interactive process. And if you don't, we'll repossess your red Swingline stapler."

"OK! What does that mean, and what do I have to do?"

"Mmm, well, sorry, but since you didn't cooperate in the interactive process, we're taking your red Swingline and firing you. Thaaanks."

*THE ABOVE MAY NOT HAVE ACTUALLY HAPPENED.*

So, Gladys sues, and at some point, both sides move for summary judgment. The court denied Gladys's motion (no surprise there). But the court denied Initech's motion, as well.

The court said that a jury should decide whether Gladys refused to engage in the "interactive process," which would result in the loss of her protection under the ADA, or whether Initech was to blame. Gladys argued that Initech was deliberately setting her up for termination. On the other hand, the court recognized that Gladys might not be, how you say, fit to work. All that is for the jury to decide.

So, the moral of the story is, passive-aggressive tactics are generally a bad policy and don't help employers. In fairness, Initech might not have known what "the interactive process" was either, and was muddling through it with difficulty but in good faith. The jury will -- yeah, you know. In case you might have forgotten, the ADA "interactive process" is fancy-lawyer-talk for a discussion between employer and employee about reasonable accommodation options. That's really about all there is to it.

Facebook_cat watching_engancha.jpg

A few good links: Eric Meyer of The Employer Handbook has a post about a plaintiff who managed to get a court order allowing discovery of the defendant's Facebook page, which is the reverse of what we usually see. And, if you haven't already been there, please get over to Phil Miles' excellent blog, Lawffice Space, for the March Employment Law Blog Carnival -- with a Saved By the Bell theme! Phil, thank you for letting us participate. Finally, many thanks to HR Examiner, which named Phil and me as two of their Top 25 Online Influencers for 2012!

Don't be a twerp when you tweet

Posted by Robin E. Shea on March 09, 2012

The Wall Steet Journal has a feature on "Five of the Costliest Tweets Ever." (Subscription required, but I'll tell you all you need to know below.) This morning, Jon Hyman of Ohio Employer's Law Blog tweeted a link to a great flow chart from HR Bartender entitled "Should I Send This Email." Both are worth reading.

Number 1 of the "Five Costliest Tweets" was, of course, our old friend, former Congressman Anthony Weiner. If you don't know enough to refrain from tweeting what Wiener tweeted, then you probably don't read this blog, and it wouldn't do you any good if you did.

Anthony_Weiner,_official_portrait.US Congress public domain.jpgBut Rep. Weiner aside, some of these tweets were not so clearly idiotic, and so they provide good lessons for employers and everyone else.

Case No. 2 - A juror in a murder trial tweeted, despite the judge's instructions not to talk about the case. Now the convicted defendant gets a new trial at an estimated taxpayer cost of $600,000. Pretty dumb of this juror not to listen to the judge, but the tweet that was quoted struck me as innocuous (if a bit self-important): "Choices to be made. Hearts to be broken. We define the great line." Criminal defense lawyers said the judge was right to order a new trial.

MORAL: A running narrative of your life on social media* is not only boring to everyone but you, but it will make your fellow jurors, who lost a week of work and agonized over a life-and-death decision for nothing, really mad at you.

*Facebook users, you know what I'm talking about: "Doing laundry. Then gas and a cheeseburger at McDonald's. Weather today is partly cloudy." With photos of before-and-after laundry, gas pump, cheeseburger sitting on top of crinkled yellow wrapper, and a gray cloud.

Case No. 3 (employment related) - Mickey Arison, owner of the Miami Heat, was fined $500,000 by the National Basketball Association for tweeting about contract negotiations with the players, in violation of NBA rules. The WSJ didn't provide details, but according to Bossip, Arison responded to a tweet from a disgruntled fan who criticized "greedy owners." Arison said, "You're barking up the wrong tree," which allegedly undermined the owners' claim to have a united front against the players. In another tweet, Arison was asked what he thought of Donald Sterling, owner of the LA Clippers, and Arison responded "lol."

MORAL: When you're tweeting, don't be a maverick. Tehe - get it?

Case No. 4 - Spirit Airlines was fined $50,000 for tweeting about $9 one-way air fares from Los Angeles because the tweets didn't include the fine print about taxes and fees charged in addition to the air fares. C'mon, DOT, cut 'em a break - what are they supposed to do with only 140 characters?

MORAL: Never tweet about air fares. You will never be able to fit all those required disclaimers in a tweet.

Case No. 5 (employment related) - Octavia Nasr, a senior editor for Middle Eastern affairs at CNN, was fired after 20 years for tweeting that she was sorry a man had died and that she respected him "a lot." (What?) Well, it's like this. You see, it turned out that the deceased was an ayatollah who criticized U.S. foreign policy and, according to the Wall Street Journal, had expressed support for suicide bombings in Israel. (Oh.) Ms. Nasr apologized and explained that she respected him because he was relatively progressive about women's rights . . . (as ayatollahs go?). Her explanation didn't save her job. One of her bosses was quoted as saying that Ms. Nasr should not have made such a "simplistic" comment without "context." But, in Ms. Nasr's defense, how do you do "context" and "nuance" in 140 characters?

Answer: You can't. So if you have something "nuanced" to say, use another forum.

MORAL: If you can't tweet ill of the dead, then don't tweet anything at all.

FREE BONUS POST! Here are my top five email mistakes:

1. Overuse of "Reply All." Not everybody needs to know everything, duh.

2. Hostility or argument expressed via email. I don't think every substantive communication needs to be face to face, but if you have a problem or are in an argument with someone (or even think it may move in that direction), you should call or discuss it face to face. If the "real-time" discussion doesn't resolve the problem, then you might need to confirm that in an email, but keep the email courteous and constructive.

3. Snarky comments in emails that are not attorney-client privileged. Lawyers can get away with some snark (at least, when they're talking with or about client matters) because of the attorney-client privilege. But HR people and managers, and other non-lawyers, emailing among themselves, cannot. In more than one lawsuit we have had to turn over to our adversaries emails with snippy comments that the authors deeply regret having made in hindsight. When you're annoyed with an employee, use your mouth to get it off your chest -- don't put it in an email. I have yet to hear of someone being sorry that they didn't express a nasty thought in an email.

4. Snarky comments about other people in emails, period. Before you send an email, think about how you will feel if the person you are talking about gets hold of it somehow. Especially after you've made up. Or he gets a promotion and becomes your boss. This can and does happen. Is it worth it to ruin your relationship with a co-worker so that you can vent a little in a "perpetual" format? Again, if you're frustrated, go run around the block, or vent some other way.  

5. Jokes (sexual, racial, ethnic, or otherwise), videos, chain emails, etc. Need I say more?

*CONFESSION IS GOOD FOR THE SOUL: At one time or another, I have violated every one of these five email rules. With the exception of sending chain emails, which are of the devil.

By George! Here's an angle on NLRB/social media that I bet you haven't thought of

Posted by Robin E. Shea on February 17, 2012

Fellow blogger Jon Hyman, among others, has already written an eloquent critique of the latest report from the Office of the General Counsel of the National Labor Relations Board on social media and protected concerted activity, and Dan Schwartz has a good roundup of what labor lawyers are saying about it (and also a call for employers not to overreact). If you haven't read Jon and Dan, you ought to do so.

I was interviewed by LXBN TV recently about this topic, but today I'd like to expand on it a bit with the help of my law partner and labor "gladiator," Cliff Nelson. To hear Cliff tell it, he is a low-tech kind of guy. Maybe because of this, he had a fresh insight into the NLRB's social media policy that I haven't heard anywhere else. George Washington.Gilbert_Stuart_Williamstown_Portrait_of_George_Washington.jpg

Cliff notes (hahaha - get it?) that an overbroad no-solicitation policy can result in setting aside a union election, and he says that the same could be true where an employer has an overbroad social media policy. So, even if you agree with Dan Schwartz that generally it's premature to rush out to rewrite your social media policy, you might want to do it post haste if you think your company is vulnerable to a union campaign -- especially with the new "streamlined" election procedures, which don't give employers much time to get ready.

"In any event," Cliff says, "amending the policy once an 'R' case [election] petition had been filed would not insulate the policy from being objectionable and from being ground for overturning a company victory."

He adds, "Of course, it may take some of the unions a bit of time to wake up to this fact, but employers would be taking an unnecessary risk nonetheless."  

Accentuate the Positive

The NLRB report said that almost every social media policy under consideration was overbroad. However, two policies survived the General Counsel's scrutiny*, and they bear some examination: (1) it was ok for an employer's social media policy to prohibit discriminatory or harassing comments based on race, sex, and other "EEO-protected" characteristics; and (2) it was ok for a pharmacy chain's social media policy to prohibit communication of the employer's confidential and proprietary information, client or employee protected health information, or information that had been "embargoed" by corporate (in other words, scheduled for public release but not until a later date).

I will go out on a limb and posit two principles based on the above:

(1) If a communication would violate a law (or cause the employer to be in violation of the law) or a specific legitimate employer interest, the employer can probably prohibit it.

(2) If the policy provides specific guidance, preferably with examples, about what types of communications are prohibited, it is more likely to be upheld because the specificity would make it that much less likely to have a "chilling effect" on all protected communication. This is in contrast to policies that simply ban "inappropriate" use of social media, or "disparaging" comments.

One other reason not to panic about this: As long as you haven't fired an employee for violating your social media policy, or taken some other action that results in a monetary loss (like a demotion or suspension without pay), the legal remedy for your "unlawful" policy is to replace it with a lawful one and to post an NLRB notice in the workplace saying you did wrong and won't do it again. In other words, not the end of the world.

That is, unless your policy invalidates your union election victory and requires you to go through all that mess again. Sigh.

Terminations and Other Adverse Actions 

When the first General Counsel report on social media came out last summer, I provided some bullets on the terminations that were considered legal and illegal. Recall that "protected concerted activity" (affectionately known as "PCA" for short) can exist even if the employer is non-union. For those of you used to the "EEO" world, a protected concerted activity claim is essentially a type of "retaliation" claim. As you read the outcomes of the latest social media/termination charges, keep these two points in mind:

The activity has to be "concerted," meaning that the employee must be part of a group or acting on behalf of a group, or preparing for group action.

The subject matter of the "concerted" activity must pertain to terms and conditions of employment.

A summary of the terminations discussed in the January General Counsel report appears after the jump:

Continue Reading

A few labor and employment gems I got this week

Posted by Robin E. Shea on February 16, 2012

A couple of interesting gems I got this week from other people (thanks, you guys!):

Pro hac vice statements defeat summary judgment! A federal judge in North Carolina denied summary judgment to a law firm who was sued by an associate for wrongful discharge based on race. Although the law firm's evidence showed thatJewels Andalusite.jpg the associate was a poor performer, the judge found that statements made in a motion to admit her pro hac vice in New York (saying she was in good standing, and yadayadayada) created a genuine issue of material fact as to whether "poor performance" was a pretext.

My friend (as long as she isn't suing one of my clients) and most-worthy adversary Julie Fosbinder of Charlotte was representing the plaintiff, so I'm not surprised that she (a) thought of it this idea, and (b) persuaded the judge. Law firms, when firing an associate for poor performance, something to think about . . .

(Hat tip to my partner and mentor Randy Loftis.)

At least one EEOC office says no need to comply with employment provisions of GINA when dealing with workers' comp claims. And a reader of this blog -- I will not identify her unless she wants me to -- told me that she received an off-the-record opinion from her local EEOC office about whether an employer must comply with the Genetic Information Nondiscrimination Act when administering workers' compensation claims. Surprisingly, the EEOC office told her NO, they do not. Don't even have to provide the safe harbor language (although I would). The EEOC's position was that this is not an employment-related issue, so Title II of the GINA does not apply.

I wanted to share this wisdom while it was still hot . . . but I'll be back with a full-blown post tomorrow.

NLRB and social media: A hard line, to be sure, but all is not lost for employers

Posted by Robin E. Shea on February 08, 2012

Colin O'Keefe of LXBN TV interviewed me yesterday about the NLRB's latest report on social media, and what it means for employers. Here it is, but you may want to turn the volume down before you start -- my volume was a lot louder than Colin's for some reason.

Colin, thank you for the interview and for your kind words about Employment & Labor Insider!

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!

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!

Happy *hic* New Year! 2011 labor and employment law year in review

Posted by Robin E. Shea on December 30, 2011

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

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

JANUARY

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

and . . .

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

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

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

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

FEBRUARY

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

and . . .

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

cars in snowstorm - January.jpg

MARCH

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

and . . . 

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

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

APRIL

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

and . . .

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

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

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

MAY

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

and . . .

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

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

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

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

 

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Tweet freely! Employers get some guidance about social media

Posted by Robin E. Shea on August 19, 2011

Texting.jpgDEAR READERS: If you enjoy this blog, we'd be most grateful if you would nominate it for the 2011 Blawg 100 list of the American Bar Association. (Blawg = blog + law . . . get it?) Attorneys and employees of Constangy are not eligible to vote. All entries must be submitted by September 9. While you're at it, please cast another vote for our sister blog, Employee Benefits Unplugged. Thank you for your support!

A number of employers, non-union as well as union, have been burned recently by the National Labor Relations Board for their social media policies, or the application of those policies.

The National Labor Relations Board issued yesterday a memorandum summarizing its findings on social media cases from the past year. The memo is well worth a read, and provides helpful guidance on the Board's position.

First -- for you non-union folks, a quick summary of "protected concerted activity." The National Labor Relations Act protects even non-union employees who act together in matters related to the terms and conditions of their employment. This can include group activity (a "group" is defined as more than one employee), or even the activity of a single employee, if the employee is acting on behalf of a "group" or preparing for "group" action.

For example, in an employee meeting, two employees may complain that the company is scheduling too much overtime and that it's hindering their safe performance of the job. This is "protected concerted activity," and it would generally be unlawful for the employer to take action against the employees because they raised these concerns.

Protected concerted activity has become a big concern, thanks to the internet and social media, which make it so much easier for employees to complain "in concert," and for employers to find out about it. Anti-employer rants on Facebook, Twitter, and personal blogs are not uncommon. If your gut reaction to this is the same as my gut reaction, you are thinking, "Why in the world can't I fire an employee who calls me a 'scumbag' or an 'as**ole' on the internet?"

Because it may be "protected concerted activity," that's why.

Here is a quickie reference to the guidance provided by the NLRB. As I said, reading the full memo will be well worth your time. The memorandum also contains guidance for employers on developing social media policies that will pass legal muster.

PROTECTED:

*Employee of non-profit was scheduled for a meeting with her executive director to discuss a dispute about her job performance. She posted about it on Facebook and got feedback from her co-workers.

*Emergency medical technician was asked by her supervisor to respond to customer complaint and was denied a request for union representation. EMT posted negative comments about her supervisor on Facebook, received responses from her co-workers, and called her supervisor a "scumbag."

*Car salesman posted on Facebook photos and criticism of food offered by dealership at sales event, saying that food was too chintzy for their clientele and would adversely affect sales commissions. Co-workers commented their agreement.

*Restaurant employees posted on Facebook comments about employer's allegedly improper tax withholding practices, and one employee said employer was "[s]uch an as**ole."

NOT PROTECTED:

*Newspaper reporter tweeted (on Twitter, duh) criticisms of his copy editors and was instructed to stop it. He did, but he continued to tweet about local homicides and sexually oriented topics. Finally, he tweeted a criticism of a local television station, drawing a complaint from the TV station to the newspaper. Presumably the criticisms of the copy editors might have been protected, but there was no indication that the newspaper had terminated him for that. The other tweets were not about terms and conditions of his employment, and he didn't seek to involve other employees.

*Bartender griped to a relative on Facebook about employer's tipping policy, calling customers "rednecks," and saying he hoped they would choke on glass as they drove home drunk. 

*Employee criticized employer on Facebook wall of her Senator but no one else, and was not seeking to involve other employees.

*Employee who worked in program for people with mental health problems posted on Facebook about alleged mental illnesses of the clients, saying that it felt "spooky" being alone in mental institution, that a client "was cracking her up," and making similar comments. The only "friends" who responded were not co-workers.

*Retail employee posted on Facebook about management "tyranny" and called his assistant manager an obscene name, and said that a lot of employees were ready to quit. Although he received generally supportive comments from co-workers (like "hang in there"), the Board's regional office found that it was an "individual gripe."

NOT PROTECTED, AND ILLEGAL:

*Union business agent and three organizers went to worksite of non-union employer and began interrogating workers as to whether they were legally authorized to work in the United States, and threatening to call immigration and have the employees deported. One of the union representatives videotaped the event, and an edited version was posted on YouTube and Facebook. The regional office found that the Union unlawfully interfered with the employees' rights by interrogation, threats, and coercion, and also interfered with the rights of other employees who might have seen the video on the internet.

. . . AND IN OTHER NEWS . . .

EEOC office issues directive on preservation of electronic evidence. The St. Louis office of the Equal Employment Opportunity Commission is issuing written instructions to companies about the preservation of electronic evidence. We don't know whether other EEOC offices are doing this. On one hand, it is not a bad idea for the Commission to remind employers of their obligations in this area and may prevent them from getting into trouble with a spoliation instruction later. On the other hand, will this just give the EEOC one more weapon against employers?

He may have a superior legal mind, but he has a fool for a client. The ABA Journal reported this week that a first-year associate who was fired from his law firm job for sending an all-attorney email touting his "superior legal mind" (and related "ego" issues) is now suing his ex-firm for $77 million. Not surprisingly, he is representing himself. Pretty big case for a first-year going solo . . . one third of $77 million is, what, a little more than $25 million?

My head is spinning so fast, I feel like I'm Linda Blair. (Or, "Keepin' up is hard to do.") Remember Ricci v. DeStefano, in which the U.S. Supreme Court said that the city of New Haven, Connecticut, could not throw out the results of a firefighter promotion exam because of a racial disparity in the results? After that decision, the city complied and promoted the white guys (and one Hispanic guy), and got dismissal of a lawsuit filed by some African-American firefighters who contended that the test had a racially disparate impact. The trial court threw out the black firefighters' lawsuit on the ground that the town was doing what it had to do to comply with Ricci. Now, a three-judge panel of the U.S. Court of Appeals for the Second Circuit (which handles appeals from federal courts in Connecticut, New York, and Vermont) has vacated the dismissal -- allowing the black firefighters' lawsuit to proceed, at least for now. Poor New Haven is damned no matter what it does.

Check us out! Employment & Labor Insider was included in the August Employment Law Blog Carnival, hosted by Jon Hyman (scroll down to "Say you're sorry when you hurt somebody," but read the other fine posts, too).

Employment Law Roundup: Facebook wage rant, EEOC scores again, FMLA bereavement leave, gender gap narrows, Menorah House and the Sabbath, mini-horse as accommodation

Posted by Robin E. Shea on July 23, 2011

Cowboy.jpgOdds and ends from the employment law world this week:

Facebook rant about wages didn't create retaliation claim. Molly DiBianca of the Delaware Employment Law Blog reports on a decision from a federal court in Florida saying that a Facebook rant about an employer's alleged violations of the Fair Labor Standards Act overtime provisions was not "protected activity" that would trigger the FLSA's anti-retaliation protections. 

Cavalier about age discrimination? The EEOC reached a $1 million class settlement with Virginia's Cavalier Telephone, LLC, over allegations that the company used recruiters who made comments that showed age-based bias including that they did not want to hire anyone who was "over 40 and pudgy." The two class representatives also alleged that they were demoted and terminated after they complained. The EEOC is on a roll with this one and its recent $20 million settlement with Verizon, which resolved claims related to application of a no-fault attendance policy to employees with disabilities.

FMLA leave for death of a child? Sen. Jon Tester (D-Mont.) has introduced legislation that would expand the Family and Medical Leave Act to include job-protected leave for the death of an employee's son or daughter. The bill, which has no co-sponsors, is entitled the Parental Bereavement Act (S. 1358), and would apply to employers of 50 or more employees.

You go, girls! The federal Bureau of Labor Statistics reports that the wage gap between men and women narrowed slightly in 2010, with women now making 81.2 cents for every dollar that men earn. The "wage gap" statistics do not control for position held, years in workforce, educational level, or any other non-discriminatory reason that might explain the gap. 

How can this be? Jon Hyman of Ohio Employer's Law Blog reports that the EEOC has sued a nursing home called Menorah House for allegedly refusing to accommodate the need of an employee to observe the Sabbath. HUH? Granted, the employee is not Jewish but a Seventh-Day Adventist, but still!

Why couldn't the pony talk? It was a little horse. Eric B. Meyer of The Employer Handbook blog discusses whether a miniature horse can be a reasonable accommodation under the ADA. Inquiring minds want to know!

Employment law roundup: Do sexy immigrants who E-verify on Facebook cause obesity?

Posted by Robin E. Shea on May 27, 2011

Happy Memorial Day weekend, everybody! Top stories this week:

When are employers liable for the bad behavior of their customers? The sexual assault charges against Dominique Strauss-Kahn, former head of the International Monetary Fund, who allegedly attacked an African-immigrant maid in his hotel room in New York City, have spurred some interesting discussion about female employees in the restaurant and hospitality industry, and their exposure to sexual harassment. Maid.jpgAccording to some commentary, women in these industries -- particularly housekeeping staff and waitresses -- are seen as "fair game" by certain guests and patrons. The fact that many of the women are also immigrants may make them even more vulnerable to such behavior.

I have to admit I have a personal bias. I believe it. I was a waitress a very long time ago (when sexual harassment was still legal -- does that date me, or what?), and I do remember getting a lot of comments from male customers that I never got in any other job before or after.

Anyway, employers in these industries and others should be aware that they can, under certain circumstances, be liable if their customers harass their employees.

A bit of history/nostalgia: In 1976, our nation celebrated its Bicentennial. It was a big deal -- even Mickey Mouse, Donald Duck and Goofy, and Kiss, got into the act. Around that time, the owner of an office building in New York City (what is it with that town, anyway? Kidding!) decided that it would be a good idea to require female employees to wear a "Bicentennial costume," consisting of an American-flag poncho with big gaps in the sides and nothing under it except undies, hot pants, and sheer pantyhose. The plaintiff, who was a lobby attendant and had not intended to become a worker in the sex industry, complained that the immodest costume caused her to be hit upon. She was eventually fired for refusing to wear it.

(Imagine being scantily-clad against your will in an elevator with some newly-separated middle-aged lecher in aviator glasses and a leisure suit who's just discovered the sexual revolution. And no concealed-carry laws back in those days, either. What a nightmare.)

Anyway, the EEOC sued, and won. The case is a landmark, in part because the court found that even though the sexual harassment was by visitors and tenants, and not the employer, the employer was liable for forcing the women to dress in a way that invited harassing behavior.

You may be thinking, Well, then, why don't we ever hear about waitresses at a business like Hooters suing for sexual harassment? The difference, I think, is the nature of the business and the reasonable expectations of female employees when they go to work. If you choose to work at a place called "Hooters," presumably (WARNING: LINK CONTAINS CONTENT THAT SOME MAY FIND OBJECTIONABLE) you know what you're getting into and assume some amount of risk. This is not to say that a "Hooters Girl" couldn't have a valid claim of sexual harassment, but she is probably not going to be able to assert a claim based only suggestive comments or propositions by customers, or even a pat or two.

By contrast, in the "Bicentennial" case, and in most housekeeping and waitressing jobs, the women are not knowingly taking jobs in an industry in which sex is the "product."

I have not seen any indication that the hotel where Mr. Strauss-Kahn was staying should be liable for his alleged behavior. But employers in the retail and hospitality industries should make sure that they have processes in place to deal with customer harassment, whether it's on the basis of sex, or race, or national origin, or any protected category. Employees should know to report inappropriate behavior by customers and that such behavior will not be tolerated.

State laws requiring E-verify are legal, says Supreme Court.  A 5-3 majority of the Supreme Court upheld yesterday the Legal Arizona Workers Act, which requires employers to use E-verify and allows the state to revoke the licenses of businesses that knowingly hire illegal workers. The plaintiffs, who included the U.S. Chamber of Commerce and immigrants' rights groups, had argued that the Arizona law was preempted by the federal Immigration Reform and Control Act of 1986. Chief Justice John Roberts wrote the majority opinion, joined by Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. The dissenters were Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Justice Elena Kagan recused herself because she had been involved in this case while she was Solicitor General.

Interestingly, the Arizona law had been enacted during the administration of Janet Napolitano, now head of the Department of Homeland Security for the Obama Administration, and upheld by the often-liberal U.S. Court of Appeals for the Ninth Circuit. Immigration politics certainly does make strange bedfellows.

Three other states -- Mississippi, South Carolina, and Utah -- have similar laws, and we can expect to see many more now that the Supreme Court has given them the thumbs up.

NLRB Facebook cases -- have they jumped the shark? The National Labor Relations Board is issuing complaints right and left against employers who have allegedly fired employees for bad-mouthing the employers on Facebook. This has prompted one commenter to ask whether these complaints are even "news" any more. The NLRB's position is that social media postings are often "protected concerted activity." Employers should certainly be aware of the risks of taking action against employees based on their social media postings and should consult with counsel before doing so. But otherwise, it probably does make sense to chill until we get some actual decisions from the Board and the courts.

Obesity, work linked. The other big story in the news this week was that sedentary jobs  . . . make you fat! An obvious point, to be sure, but wouldn't fresh air and exercise during the day be a great wellness initiative? And, does this mean that we can now collect workers' comp benefits for obesity-related diseases, like diabetes and hypertension? Te-he.

THAT STINKS! Greedy lawyers, toxic employees, heavy-handed government, and other bad things

Posted by Robin E. Shea on May 13, 2011

Woman holding nose.jpgHere are some "bad news" items from the employment law world:

Evil, money-grubbling lawyers (is that redundant?) who rip off their clients. Forbes has a disheartening article on "nine ways lawyers inflate their bills." Some of the alleged practices are astounding to even me, a lawyer: charging clients for use of conference rooms when the clients are meeting with the lawyers (!!!), charging for time spent reviewing bills (whaaaa?), having lawyers do photocopying and other routine tasks so they can bill the client $200+ an hour for it . . .. Why any client would tolerate this is beyond me. There are plenty of good law firms out there who will bill honestly with no hidden charges. Don't put up with it!

The toxic employee. If an employee is enough of a jerk, she can intimidate not only her co-workers and subordinates, but also her bosses. If her bosses are afraid, they won't give her constructive criticism or any clue that she is out of line. Then she may be very unpleasantly surprised when they finally reach their limit and give her the axe without warning. The Evil HR Lady has a good post on a better way to handle the toxic employee, which includes overcoming management fear and giving The Evil One a chance to shape up before you ship her out.

Poor Starbuck's. Starbuck's has been sued by the Equal Employment Opportunity Commission for allegedly firing a dwarf barista at a store in El Paso, Texas, in violation of the Americans with Disabilities Act. According to the lawsuit, the barista was hired and then terminated three days later because she wanted a stool or stepladder so that she could reach. (And, as we all know, "reaching" is now a major life activity under the ADA.) Starbuck's took the position that a stool or stepladder would be a hazard behind the counter, which I can understand, having seen the way those employees race around during rush hour in a narrow space. I guess we will have to wait and see how the evidence develops, but I have a feeling there is a big wrinkle to this story that the EEOC isn't talking about . . . I have a hard time believing that Starbuck's would be unwilling to reasonably accommodate someone they'd hired with a known disability only three days earlier.

Email your timesheets directly to Big Brother! The U.S. Department of Labor has come out with an app for iPhones and iPods that allows employees to track their hours worked and send the data directly to the Department of Labor (or, if they'd rather get paid, to their employers). The app is intended to make it easier for the DOL to enforce compliance with the Fair Labor Standards Act, and Blackberry and Droid versions are reportedly forthcoming.

Always looking out for my readers, I have downloaded the app and have tried it. It's very easy to use once you get through the initial set-up. You click on the employer name, click "start," and your iPhone or iPod keeps time for you. If you want to include an unpaid break (but, hey, who would?), you click again on the employer and then click "break." Up pops a DOL description of the FLSA rules regarding compensability of break time. When break is over, just go back to employer and click "start" again, and the automatic timekeeping resumes.

The app contains one whopping disclaimer that I suspect most users won't notice -- when you click on the "i" at the top left of the screen, you get this: "This application . . . does not include every possible situation encountered in the workplace, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials, or pay for regular days of rest," etc., etc. (There is a lot more that the application doesn't include, but I don't have time to quote it all here.) As Ellen Kearns, co-chair of our Wage and Hour Practice Group notes, the app also fails to exclude time that would be non-compensable under the Portal to Portal Act, such as time spent walking from your car in the parking lot to your desk, or time that is de minimis, such as time spent booting up your computer. And, as Jim Coleman, co-chair of our Wage and Hour Practice Group notes, there is no reason for a court or the DOL to give the time reported on this app any more weight than it would to time reported using the employer's FLSA-compliant system.

In other words, a pretty worthless app, although it will probably bring the DOL down on a lot of employers.

However, I'm thinking I might use it to track my billable hours, when I go down to Kinko's to make some copies, or arrange documents in chronological order. I'm kidding, I'M KIDDING!

To better times!   

Oh, the humanity! Stupidity rules in social media and employment

Posted by Robin E. Shea on April 08, 2011

Dunce donkey.jpgH.L. Mencken once said, "No one in this world, as far as I know . . . has ever lost money by underestimating the intelligence of the great masses of the plain people." Being a "small d" democrat and believing that stupidity is not limited by one's social standing, I'd delete "the great masses of the plain."

But, apart from that nit, I am in awe -- I just can't figure out how Mr. Mencken, writing long before even the invention of Eniac, could have known so much about the way people would (mis)use social media like Facebook, MySpace, Twitter, texting, et cetera, et cetera, ad nauseam, 100 years later.

So much social media stupidity has been in the news this week that one hardly knows where to begin. School teachers who allegedly* vented about their students on their Facebook pages and got busted by alert (and litigious) parents. Text messages about job searches accidentally sent to current employers. And, meanwhile, the National Labor Relations Board is doing its best to give employees a federally guaranteed right to be stupid.

*There isn't really much "allegedly," since these postings were available for all to see. But I'm still using the word "allegedy" as a courtesy to the teachers involved.

Ding-Dong School. Blogger Ann Althouse linked to one story, which led me to two others, about teachers who had been a bit too frank about their students on their Facebook pages. (I have more sympathy for these teachers than I do for anyone else I'll be talking about today.)

A high school teacher in Pennsylvania vented on Facebook about how her students were "rude, disengaged, lazy whiners." (Not true, Teacher, not true! I was a disengaged, lazy whiner in high school, but I was never rude.) The parents of these little darlings were not impressed, and so they raised Cain with the school. The teacher is now suspended and may be fired.

In Chicago, the public school system is being sued by the mother of a second-grader who had asked to have her mom do a picture day hairdo that involved braiding Jolly Ranchers candies in the girl's hair. (From the photo in the link, it appears that the candies were in their wrappers and were tied to the ends of the girl's braids, so no worries about sticky, sugar-coated hair.) The teacher posted the little girl's picture on her Facebook page and allegedly ridiculed the girl. Commenters also allegedly made fun of the little girl's "do." The teacher and principal both apologized after the girl's mother complained about it, and the teacher took down the posting, but no matter -- Mom is now suing the school system for the "emotional distress" suffered by her daughter, who probably would never have seen the postings if her mom hadn't shown them to her.

Finally, a first-grade teacher in Paterson, NJ, has been suspended after posting on her Facebook wall that she felt like a warden overseeing future criminals. (First graders????) Anyway, irate parents are calling for her permanent removal. 

So, teachers (and everybody else) beware -- what you say on Facebook can and will be held against you. School systems, you might want to consider a little "social media" training for your faculty.

Stupid job-hunters. Wrong Number Texts has a text message about job-hunting sent to the wrong number. Unfortunately, the person sending the text was already employed (though probably not for long) and supposedly sent the message to his/her current employer. I don't know whether this was actually the case, and the website does not guarantee the authenticity of its posts, but I do know of several real-life acquaintances who searched for alternate employment using the e-mail system of their current employer. Of course, they were "outed" and their departure date came a bit sooner than they had planned for.

DUDES! This is why Paulie not only never sent e-mails (since they hadn't been invented yet) but wouldn't even take a phone call. He always made his minions do the phone calls . . . and on pay phones. Didn't you ever see Goodfellas?

"Hey, everybody in the world -- my boss, Joseph R. Smith, Jr., of Apartment 5-G, 123 Elm Street, Smallville, Kansas, zip code 57123**, is a dirty rotten creep. . . . WHAT?" If you've been reading this blog for long, you know that I have little sympathy for employees who publicly post nasty comments about their employers and bosses, and then can't believe it when they have to face the consequences. In a less-technological era, if Mr. Dithers overheard Dagwood at the water cooler telling his co-workers what a big jerk Mr. Dithers was, Dagwood would know he was about to get fired . . . again. So why is it any different when you post it on the internet, where millions of people can see it? Yes, in my opinion, people who do this are making what a former colleague of mine used to call a "career-limiting gesture."

But the current NLRB doesn't see it this way. The NLRB sees this as "concerted activity" that is entitled to the protection of the federal labor laws. Even as we speak, the Board is reportedly getting ready to file a complaint against Thomson-Reuters for reprimanding an employee who made a critical "tweet" on Twitter about the news agency. (In the NLRB's defense, the tweet at issue in this latest case appears to be the type of communication that the labor laws were intended to protect . . . as opposed to the emergency medical technician in Connecticut who referred to her boss on Facebook in the code for "psychiatric case.")

**Any similarity between this Joseph R. Smith, Jr., of Apartment 5-G, 123 Elm Street, Smallville Kansas 57123, and actual persons, living or dead, is purely coincidental.

Uber-stupidity. Need I even mention the people who think it's "funny" or "cool" to publish themselves nude, or drunk, or on drugs, or committing crimes, on line? Nah, didn't think so. But if you are rejected for hire because of your extremely poor judgment, you can always sue the company for "social media discrimination." No, I am not making this up.

Words for the Wise. If you aren't sure how much privacy you have on social networking sites, it's always best to assume "none whatsoever." But if you want more refined information than that, go to the source -- Cracked.com. Seriously, although its list of "6 Things Social Networking Sites Need to Stop Doing" is funny (WARNING: contains some inappropriate language), it also contains good information in plain English about privacy settings and the like, and how you can try to work around them.

I wish I could take credit for this thought, but I know I heard it from someone else and just can't remember where -- but never forget that the internet and social media have made the world into "Mayberry." There are no secrets any more, and everybody knows everybody else's business. If you grew up in a small town, you will know what I'm talking about. If you grew up in a big city, you won't, and this will take some getting used to. Anonymity is over. Maybe that's not such a bad thing, I don't know. But it certainly does mean that we have to be more circumspect about even our "private" behavior than we used to have to be.

If you're an employer, continue monitoring the status of social media postings and "protected concerted activity." If you do check out job applicants on social media sites, be sure to avoid using information that you may find about a job candidate's age, medical condition, religion, or protected activity. Otherwise, you may be accused of "social media discrimination."

SIGN UP FOR CONSTANGY'S ADAAA WEBINAR! On a completely unrelated note, I'll be presenting a webinar at 2 p.m. Eastern on Wednesday, April 20, with my colleagues Kristen Allman (Jacksonville office) and Edel Cuadra (Dallas office) on the Americans with Disabilities Act Amendments Act and the new regulations issued by the Equal Employment Opportunity Commission. It's a real bargain at $25 a phone line. We hope you will join us!