April 2013 Archives
Discrimination is just plain wrong. It is shocking that there is still anywhere in America where it is legal to fire someone for their sexual orientation or gender identity. Americans understand that it's time to make sure our LGBT friends and family are treated fairly and have the same opportunities as all Americans. Now it's time for our laws to catch up. People should be judged at work on their ability to do the job, period.-- Senator Jeff Merkley (D-OR)
Last week, Senator Merkley together with Senators Mark Kirk (R-IL), Tom Harkin (D-IA), Susan Collins (R-ME) and Tammy Baldwin (D-WI), reintroduced the Employment Non-Discrimination Act (ENDA). (The same version of ENDA has bipartisan sponsorship in the House as well).
Title VII of the Civil Rights Act currently makes it unlawful for employers to engage in sexual stereotyping. ENDA, which has been introduced in every session of Congress save one since 1994, would expressly prohibit employers from firing, refusing to hire, or discriminating against those employed or seeking employment, on the basis of their perceived or actual sexual orientation or gender identity.
And while Congress has blown several opportunities to pass ENDA, it's worth noting that, 93% of Fortune 100 companies include sexual orientation and 82% include gender identity in their corporate nondiscrimination policies. Nearly 200 municipalities also have similar laws in place.
Many are optimistic that Congress can get ENDA to the President this time around.
Just another Friday here at the ole Handbook. Oh, get your head out of the gutter! This is a family blog.
(Y'all have families, right?)
For serious, today's lede isn't just gratuitous, there is an employment-law connection here.
*** searching ... searching ... searching ***
Ok, got it!
- Back in 2012, the Iowa Supreme Court held that it's legal to fire a female employee because of her "irresistible attraction". Leave it to Staci Zaretsky at Above the Law to track down the plaintiff. She filmed a hilarious segment on Tosh.0. More from Above The Law here.
- Take one supervisor, add in a consensual relationship (complete with texting, sexting, and you know, I don't know the exact pronunciation, but I believe its ménage à trois) gone bad, a sexual harassment complaint, and what do you have? Why a race-discrimination complaint, of course! Guh?!?!
- And last, we have this month's edition of the Employment Law Blog Carnival: Tips for HR Spring Cleaning. Make sure to check it out. Lorene Schafer at Win-Win HR did a fantastic job with it!
Yesterday, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar. In this case, the Court is being asked to determine what a plaintiff's burden of proof is for a Title VII retaliation claim.
Is it mixed motive? In other words, is it enough that retaliation motivates an adverse employment action?
Or does a plaintiff have to prove that retaliation was the reason that adverse employment action was taken?
You can find a copy of the transcript from yesterday's oral argument here.
But before you pour through it, let's see how well you know your Supreme Court Justices.
Take the quiz and see if you can tell who said what during oral argument.
Last week, the U.S. House of Representatives passed the Cyber Intelligence Sharing and Protection Act, better known as CISPA. CISPA provides for the sharing of certain cyber threat intelligence and cyber threat information between the intelligence community and cybersecurity entities, and for other purposes.
However, the majority vote was not without a speed bump, according to this report from Josh Wolford at WebProNews:
Colorado Democrat Ed Perlmutter attempted to tack on a provision to CISPA that would make it illegal for employers to require prospective employees to hand over their social media passwords as a condition of acquiring or keeping a job.
Perlmutter's amendment was voted down 224-189.
Sara Gates of The Huffington Post reports here that CISPA sponsor Rep. Mike Rogers called Perlmutter's proposal an attempt to kill the bill, and suggested that Perlmutter propose the amendment as standalone legislation.
Currently pending in the House is the Social Networking Online Protection Act (SNOPA). SNOPA would effectively accomplish what Perlmutter attempted to do by amending CISPA. Although six states have passed laws banning employer requests for social media passwords of job applicants, and several others have legislation pending, Congress has done little to push SNOPA along. Indeed, the same version of SNOPA was introduced in 2012, but sat dormant.
Today we have a guest blogger at The Employer Handbook. It's Noah Kovacs. Noah has over ten years experience in the legal field. He has since retired early and enjoys blogging about small-business law, legal marketing, and everything in between. He recently purchased his first cabin and spends his free time remodeling its kitchen for his family. Twitter: @NoahKovacs
(Want to guest blog at The Employer Handbook? Email me).
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When I first began drafting social media policies and offering social media training for clients, I preached that friending the boss was a bad idea. The lawyer in me was concerned for two reasons: (1) Facebook's informality would facilitate behavior from a supervisor that a company would not otherwise tolerate in the workplace; (2) if a supervisor knew about, but failed to report, employee actions on Facebook that would violate an anti-harassment policy, the company could lose a valuable discrimination defense.
What do non-lawyers have to say about friending the boss on Facebook? Find out after the jump...
No way, Heisenberg is gonna be cool with this. Not a chance.
Earlier this month, New Mexico joined Maryland, Illinois, California, Michigan, and Utah, by becoming the sixth state to pass a law, which makes it unlawful for an employer to request or require that a prospective employee fork over a social media password as a condition of gaining employment. However, this New Mexico's law is unique in that it only covers prospective employees, and not the existing workforce.
Lest anyone get the wrong idea, I am not in favor of employers asking candidates or current employees for social media passwords. Instead, as I've noted before, there is no empirical evidence that employers asking for social media passwords is a common practice. Therefore, these laws seek to regulate a "problem" that rarely, if ever, exists.
picks up phone dorks out in his bluetooth VOIP-compatible headset **
The Employer Handbook: "Nyello."
Two Weeks Ago: "Hi Handbook. This is "Two Weeks Ago" calling. I wanted to let you know that Philadelphia Mayor Michael Nutter vetoed the "Promoting Healthy Families and Workplaces" Bill, also known as the paid sick leave legislation. I read about that legislation on your blog back in February, and I was wondering when you were going to get around to updating your readers."
Handbook: "Yeah, I meant to write about ---. Hold please. I have another call coming in. Hello?"
Last Week: "Hi there. It's "Last Week." Is now a good time? I tried to contact you -- well -- last week, to find out why you hadn't told your readers that Councilman Greenlee didn't have the votes to override Mayor Nutter's veto of Philly's paid sick leave bill. You ok? I'm concerned."
Handbook: "I'm fine. Just been busy, I guess."
LW: "Because now paid sick leave is done in Philly. And I know you target local readers. Look, if you need some help over there..."
Handbook: "I'm cool. It's all good."
LW: "You sure? I mean --"
Handbook: "Hey, Last Week. I'm fine. How's your employment-law blog, the one that gets thousands of hits going? Oh wait, you don't have one, do you?"
LW: "Hey, no need to get testy, nerd."
Handbook: "I got your nerd right here. ** grimaces at crappiness of that lame comeback ** And why don't you come say that ish to my face? Oh wait, you can't, can you? Last. Week." ** swish **
LW: "Hey, I'm not one who is going to blog about a made-up conversation with "Two Weeks Ago" and "Last Week." You're going to blog about this, aren't you? You're going to blog about this..."
** sigh **
Fine, I'll play a quick encore.
In a case decided yesterday, the U.S. Supreme Court in Genesis Healthcare Corp. v. Symczyk (opinion here) held that if a plaintiff who brings a claim under the Fair Labor Standards Act on behalf of herself and her co-workers rejects an offer of judgment from the defendant that would fully satisfy the plaintiff's own personal claim, then the entire case gets dismissed unless the plaintiff can demonstrate a personal interest in representing the unnamed claimants.
They call this a "pick off" of the lead plaintiff and, yeah, I shouldn't have played that encore. I told my manager. I says, "Charlie, I don't do these FLSA collective action cases. But no....."
Charlie's gonna get an earful from me...
This blog is nearly 2 1/2 years old and we have our first Equal Pay Act post. The Equal Pay Act requires equal pay for equal work on jobs the performance of which require equal skill, effort, and responsibility, and which are performed under similar working conditions. Any wage discrimination on the basis of sex violates the Act.
In Puchakjian v. Township of Winslow, Deborah Puchakjian filled a Municipal Clerk vacancy within the Township of Winslow which came about a result of the retirement of the male incumbent. His salary at retirement was $85,515; Ms. Puchakijan's salary to replace him was $55,000.
You see, there are four exceptions to the Act's general rule of equal pay for equal work:
- a bona fide seniority system,
- a merit system,
- a system which measures earnings by quantity or quality of production, or
- any factor other than gender
The Third Circuit agreed with the lower court that the retired Municipal Clerk's yearly salary increases over his 29-year tenure in the position "both explained and motivated the wage disparity." Consequently, the wage disparity was based on a factor other than gender.
Given these four Equal Pay Act exceptions, claims under the Act are tough to prove. That said, a priority in the EEOC's Strategic Enforcement Plan (FY 2013-2016), is the enforcement of equal pay laws. Indeed, in 2012, the EEOC received over 4,100 charges of gender-based wage discrimination, and obtained over $24 million in relief for victims of gender-based wage discrimination through administrative enforcement efforts and litigation.
So, now is as good a time as any to conduct a wage audit and make sure that any disparity in pay for equal work is attributable to one of the Act's exceptions.
Yesterday, CareerBuilder.com released its list of 15 of the most unusual things that bosses have asked employees to do. I've had a lot of rough, odd jobs in my lifetime --
*** Hey silver spoon! Quit giving me the stink eye over there. If I write it, my readers believe it. Sheep... ***
I consider myself lucky, requests made of me only made the list twice.
*** Re-checks list for "Quick! Flush the yeyo*." ***
Yep, seven. Here they are:
- Boss asked employee to be prepared to delete all emails and computer files at a moment's notice
- Boss asked employee to be a surrogate mother for her - more than once
- Boss asked employee to spy on senior management
- Boss asked employee to buy a rifle for him, and he would reimburse the employee
- Boss asked employee if she knew of anyone who could "hook him up" with illegal substances
- Boss asked employee to go online and post false good comments about him
- Boss asked employee to come up with a science fair project for her daughter
- Boss asked employee to fire his (the boss's) brother
- Boss asked employee to lend him $400 for a down payment on a car
- Boss asked employee to remove her stitches
- Boss asked employee to be better friends with him
- Boss asked employee to scour an abandoned office building for furniture and supplies they could use
- Boss asked employee to bail another coworker out of jail
- Boss asked employee to clip her dog's nails
- Boss asked employee to help plan her wedding
What's the weirdest thing that your boss has asked you to do? Let me know in the comments below.
* That never happened and The Employer Handbook does not condone drug use in the workplace. Scarface-esque references to "yeyo"; however, are ok if cleverly executed. Swish!
From the blog that brought you the classy September 2011 post, "This old mother****** may just have an age discrimination claim," comes a story of a woman whom her former employer **cough** affectionately **cough** referred to as "Old Rose."
On other occasions, the plaintiff Rosemary Marsh was told, "you're slipping, you're getting old." Another time, she was asked if she was "too old to get down there" when she bent down to replace paper in the photocopier. And when the company eventually fired Ms. Marsh -- you had to figure that was coming, right? -- she was allegedly told, "I think you're just getting a little too old for your job."
Sounds like the makings of a good age discrimination claim. Well, not in the Sixth Circuit Court of Appeals. No ma'am:
The first three alleged statements were not made in connection with a decision to fire Marsh. At the most, these statements show only that Horn felt that Marsh was an elderly individual and that some stage of old age was correlated with a decrease in job performance. To hold that age was the but-for cause of Marsh's termination, a factfinder would still have to infer from these statements that Horn's supposed disdain for the elderly led her to fire Marsh. Thus, these statements do not constitute direct evidence of age discrimination.
Hold up there one sec. I read in the opinion that the defendant claimed that Ms. Marsh was a poor performer. But, Ms. Marsh claims they freaking told her, "I think you're just getting a little too old for your job." I'm sensing pretext here, amirite?
Finally, Marsh asserts that Horn's alleged age-related statements, discussed above, demonstrate that AERC of Michigan's proposed reasons for her termination are a mere pretext used to mask age discrimination....Marsh cannot demonstrate that these alleged comments were made by a decision-maker or that the individuals with the power to fire her harbored any discriminatory animus. Thus, the alleged statements of an individual with no authority to fire Marsh cannot demonstrate that AERC of Michigan considered Marsh's age when firing her, much less that AERC of Michigan's espoused reasons were pretextual and that age was actually the but-for cause of Marsh's termination.
The case is Marsh v. Associated Estates Realty Corp.
To defend against a claim of discrimination, an employer can argue that it fired an employee because it honestly believed that the employee did "X." And, as long as "X" isn't discriminatory, the employer prevails. This is the honest belief doctrine.
So, can an employee flip the "honest belief doctrine" on its head to show that an employer's purported legitimate business reason for disciplining an employee was actually pretext for discrimination?
Find out after the jump...
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You run a delivery service using large trucks and require that drivers be qualified by the Department of Transportation. Although your facility managers aren't often behind the wheel of the big rigs, you nonetheless require that they too be DOT certified.
One day, a manager with a disabling eye injury comes to you and asks for an accommodation under the Americans with Disabilities Act: to be excused from driving trucks so that he may focus on "managing."
Assuming that no other reasonable accommodation exists, must you give it to him?
According to the Eighth Circuit Court of Appeals in Jeff Knutson v. Schwan Food Company (opinion here), that's a big N-O, good buddies.
Even though your manager rarely has to drive, job functions that aren't performed that often can still be "essential" functions of the job. "Essential functions" are "the fundamental job duties of the employment position the individual with a disability holds." What is (and is not) an essential function can depends on several factors the court espoused:
Evidence to consider in this determination may include: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs.
In your case (as in Knutson -- I shamelessly ripped the facts from Knutson. It was easier than blogging about Ray J's new song. Is it a Kimye diss track? Who knows? Who cares? I want those last three sentences back...), if you've got a good written job description, your judgment is sound, and the experience and expectations of all managers is that they need to get behind the wheel from time to time, then you're defense that driving is an essential job function is solid.
So, take a look at those job descriptions and talk to your employees about what they do on a day-to-day basis. And update those job descriptions accordingly.
Many states and localities have laws forbidding discrimination on the basis of sexual orientation (LGBT).
But Title VII of the Civil Rights Act, one of the federal laws barring discrimination in the workplace, law does not prohibit it.
What Title VII does make unlawful, however, is stereotyping based on a person's gender non-conforming behavior (i.e., a man who appears effeminate, or a "manly" woman). As a Virginia federal court (here) re-emphasized last week, sex stereotyping is central to all discrimination:
Discrimination involves generalizing from the characteristics of a group to those of an individual, making assumptions about an individual because of that person's gender, assumptions that may or may not be true.
Recognizing that the line between unlawful sex stereotyping and lawful (yet despicable) discrimination on the basis of sexual orientation can be tough to draw, the Virginia court denied a defendant's motion to dismiss a pro se plaintiff's sex stereotyping claims because he alleged that he was given crappy assignments based on the company's position that his failure to conform to gender norms reflected poorly upon the company and would displease its clients. This was enough, at the pleading the stage, to spell out plausible claims for sex stereotyping. Whether the plaintiff can ultimately prevail is another story.
The takeaway here is this: there are certain incendiary words that, when used in workplaces -- especially blue-collar workplaces -- may create immediate animosity and, ultimately, lead to lawsuits from male or female employees. Take, for example, the word "bitch." Courts recognize that calling a woman a bitch is intentional discrimination based on gender. But, calling a man a "bitch" (or "faggot" or "woman") can also give rise to a sex stereotyping claim based on a failure to conform to gender norms.
So, when conducting respect-in-the-workplace training, don't give same-sex harassment short shrift. Instead, explain it, give examples, and remind employees that they don't have to endure that kind of crap at work. Encourage anyone who experiences or witnesses sex stereotyping to complain about it so that it may be addressed and dealt with immediately.
Also, if you're one of the few employers that hasn't progressed beyond the confines of Title VII to preclude discrimination based on sexual orientation, get out of the stone ages and join us here in the 21st century.
After yesterday's super-serious Animal House post -- Toga! Toga! Toga! -- let's lighten things up a bit with a list of the most memorable tardiness excuses employers shared in a recent CareerBuilder Annual Survey.
- Employee dropped her purse into a coin-operated newspaper box and couldn't retrieve it without change (which was in the purse)
- Employee accidentally left the apartment with his roommate's girlfriend's shoes on and had to go back to change
- Employee's angry wife had frozen his truck keys in a glass of water in the freezer
- Employee got a late start because she was putting a rain coat on her cement duck in her front yard (because rain was expected later that day)
- Employee's car wouldn't start because the breathalyzer showed he was intoxicated
- Employee attempted to cut his own hair before work and the clippers stopped working, so he had to wait until the barber shop opened to fix his hair
- Employee's car was attacked by a bear (had photographic evidence)
- Employee drove to her previous employer by mistake
- Employee claimed to have delivered a stranger's baby on the side of the highway
As someone who delivered his second child on the sidewalk in front of the Pennsylvania Hospital on a freezing February night in 2011 -- no, I'm not a ob-gyn, but I did stay at a Holiday Inn Express the previous night -- I take umbrage with the last "excuse" having any sort of pejorative connotation associated with it.
But, I'm sure you good folks have heard your share of good employee-lateness excuses. Let me hear 'em in the comments below.
Have a nice weekend.
- "Mr. Dorfman?"
- "0.2... Fat, drunk and stupid is no way to go through life, son."
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- "That's Left Ear. Demolition and explosives. When he was ten, he put one too many M-80s in the toilet bowl. Lost the hearing in his right ear. He's been blowing stuff up ever since."
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Good start to a blog post, amirite? Now, allow me to dork this up with two employment-law questions:
- If Flounder were Dean Wormer's employee (rather than just a student at Faber College), would Wormer's calling him "stupid" mean that Faber regarded Flounder as "disabled" under the Americans with Disabilities Act?
- Since Left Ear is deaf in one ear, would he qualify as "disabled" under the ADA should he return from his Spanish villa and seek gainful employment in the USA?
Tough questions. But here, at the ole Handbook, when the going gets tough...[wait for it]...The tough get goin'! Who's with me?
Let's do it!!!! (after the jump...)
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While some people; namely, hockey players with local ties, use Twitter to congratulate an ex-wife on end of divorce payments, others spew venom about their bosses.
I know. I should have warned you to sit down first. Let me know when the shock subsides.
And the latest 15-minutes-of-fame, there's-an-app-for-that, spotlight shines on FireMe!, which uses keywords and such to show Twitter users who tweet vitriol about their employers. The site, which is chock full of expletives -- you've been warned -- contains four categories: (1) Haters; (2) Horrible Bosses; (3) Sexual Intercourse; and (4) Potential killers. FireMe! also has a "leaderboard," and can, if you are a Twitter user, can "calculate" the chances that you will be fired if your boss learns about your Twitter account. My chances are five percent.
The creators of FireMe! claim it was designed "to raise awareness about the danger of public online data." Indeed, the app will send out tweets to offenders to warn them to delete offensive content. According to one report, FireMe! sent out more than 4300 tweets to offenders in a three-week period, prompting users to delete 249 of those tweets within two hours.
How does this really impact the workplace?
Well, I can't imagine that any employer out there has the time to monitor this site on the off-chance of finding an employee who bad mouths the company. But even if you did, taking action based on a tweet could burn you. Remember that the National Labor Relations Act protects the rights of employees to discuss with one another -- even critically -- terms and conditions of employment. So, while firing a single griper may be ok, terminating an employee who engages in "protected concerted activity" is not.
Plus, when you have a number of employees who use social media to vent about work, rather than blame them, maybe it's time to take a critical look in the mirror to see what you can do to improve the workplace.
I'm a little late to the game on this case (Gatto v. United Airlines). It's about a personal injury case in which the defendant sought discovery of a the plaintiff's Facebook page. Yadda, yadda, yadda, plaintiff deletes his Facebook page and the court sanctions the plaintiff.
But here's the part I like:
While Facebook did respond to the subpoena served upon it, Facebook objected to providing certain information related to Plaintiff's account due to concerns regarding the Federal Stored Communications Act. Facebook instead recommended that the account holder download the entire contents of the account as an alternative method for obtaining the information. Defendants allege that this issue was discussed with the Court during a telephone status conference on January 6, 2012, where Plaintiff's counsel advised that he would be willing to download the account information and provide a copy to the parties. Defendants allegedly agreed to Plaintiff's proposal, with the condition that Plaintiff would also provide a certification that the data was not modified or edited since the December 1, 2011 settlement conference.
So, if you want discovery of the contents of a litigant's Facebook account, don't mess around with subpoenas to Facebook and don't demand Facebook passwords. Instead, lay the proper foundation (i.e., establish that there exists information on a litigant's Facebook page that is likely to lead to the discovery of admissible evidence) and make a download your information request.
Unquestionably, when it come to tackling the Americans with Disabilities Act, one of the biggest issues affecting the workplace and accommodating disabled employees is providing leave as a reasonable accommodation. Anecdotally, a question that plagues most employers is just how much leave is enough?
We know that an indefinite leave of absence is not a reasonable accommodation. But, what about when an employee takes one leave, after another, after another.
After the jump, I'll address the big question: when is enough enough?
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