Yesterday, the United States Equal Employment Opportunity Commission held a public meeting at which it discussed, well, you read the lede. Don't miss this one employers; the full 411 is after the jump...
One of your FMLA-eligible employees walks into HR one day and says that she has a serious health condition and would like to take time off to treat her injury. However, the employee, who has paid time off banked away, says that she'd like to dip into her bank of PTO and exhaust that without using any of her 12 weeks of FMLA.
Can your employee affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection?
Indeed, this recent Ninth Circuit decision held exactly that.
So what's with the asterisk? My FMLA blogging buddy Jeff Nowak, in this post at FMLA Insights, believes that the Ninth Circuit's decision could ultimately reflect the minority view from the courts:
To be candid, my recommendation is to ignore the [Ninth Circuit] decision and designate the absence as FMLA leave if it indeed qualifies as such. For me, the FMLA regulations are clear. At 29 C.F.R. 825.301(a), the DOL tells us, "Once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave]." There is nothing in this regulatory provision to suggest that the employee can influence this process. To the contrary, the regulation states that the employer designates once it knows the absence is for an FMLA-qualifying reason.
Ok. Maybe the answer isn't really clear-cut. However, one thing is: if the employer does want to designate leave as FMLA leave, the regulations require that it
serenade me with Chevelle notify the employee.
Last week, Justin Bieber was deposed in an action stemming from an alleged attack by his bodyguard on a member of the paparazzi. Here and pasted below is the video that's been making the rounds on the internet:
So, how does this impact your workplace? Don't let your employee witnesses ever channel their inner Bieber if deposed in a workplace lawsuit.
Now, Lil Wayne on the other hand...
Late last year, the United States Equal Employment Opportunity Commission scored a big victory when a federal judge found apparel company Abercrombie & Fitch liable for religious discrimination when it fired a Muslim employee for wearing her hijab (a religious headscarf) in the workplace, rather than accommodating her religious beliefs.
On the heels of this win, the EEOC has just issued new guidance about how federal employment discrimination law applies to religious dress and grooming practices, and what steps employers can take to meet their legal responsibilities in this area.
In a nutshell, Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.
Customer preference is not undue hardship, job segregation (e.g., reassigning the employee in the yarmulke to the storage room) is not a religious accommodation, and your personal knowledge of an employee's religion has no bearing on whether the employee's beliefs are sincerely held (they probably are).
But, the undue hardship is a low bar -- much lower than disability accommodation -- anything de minimis. Even a schedule change can be more than de minimis.
Religious accommodation in the workplace is fast becoming a hot issue for the EEOC and I commend all of you to
fund my Kickstarter check out the new EEOC guidance.
Back in 2011, when y'all were Tebowing, planking and winning, I was blogging about this case where an employer allegedly updated its employee's Facebook page and tweeted from her Twitter account without her permission while she was on leave from work following a car accident.
The Stored Communications Act prohibits intentional, unauthorized access to electronically stored communications. The employer admitted that it had accessed the employee's social media accounts. However, it claimed that it had permission because the employee left her passwords stored on a company server. So, the employer moved for summary judgment.
Opposing the motion, the employee argued that, while the company did possess the account passwords, she had told them to leave their digital fingers off of her social media accounts. This would have made the access unauthorized.
So, faced with a he said/she said, the court, in this opinion, decided to let a jury decide who is telling the truth.
What does all of this mean for employers?
Jon Hyman, at the Ohio Employer's Law Blog, discussing the case here, offers this takeaway:
"If you are going to permit your employees to use their personal social media accounts for business purposes, get it in writing that you have rights to the accounts. Define who else can access the accounts, and what happens with them if the employee is incapacitated or no longer employed. Otherwise, you are potentially exposing yourself to an expensive and uncertain lawsuit to define these rights in court after the fact."
Solid advice right there.
I say that once the employee sets up his or her own social media account, it's hands off to the employer. Period. Sure, the employer can require that the employee's online speech conform to the law (e.g., trademark, copyright, and fair use laws) and otherwise require a disclaimer where a social media posting could suggest that the employee is speaking for the employer. But, directly accessing those accounts? Fuggedaboutit!
Instead, if you want an employee to tweet and Facebook for the business, then set up the account yourself, maintain the username and password, and have any employee with access to those accounts acknowledge, in writing, the company's ownership rights in the account.
"Yes! Meyer is finally playing Five Finger Death Punch!"
-- Not a single one of you
We've had some pretty wild, prurient, "where does he get his material" workplace posts here at The Employer Handbook. Remember the one about the female accountant who won the right to legally masturbate at work? And then there was the one about "exotic dancer" harassment.
In what has been dubbed a "world's first" -- ya think?!? -- a prostitute has prevailed in a sexual harassment action against her boss, a brothel owner.
Insing.com reports here about a case in which a brothel owner reportedly told one of his prostitutes that he could do what he liked with the women who worked for him. Over a three-month period, the older man allegedly belittled and frightened the woman until she felt unsafe and on edge, became depressed and turned to alcohol.
Based on these facts, the tribunal found in favor of the prostitute and awarded her a little of $26,000.
Now this case was decided in New Zealand where prostitution is legal. But let's assume that a similar case arose in a Nevada county where prostitution is also legal. Title VII of the Civil Rights Act of 1964 protects women (and men) against sexual harassment in the workplace.
In the New Zealand case, the tribunal underscored, "Sex workers are as much entitled to protection from sexual harassment as those working in other occupations. The fact that a person is a sex worker is not a licence for sexual harassment - especially by the manager or employer at the brothel."
This maxim would apply with equal force to a brothel worker in Nevada. Title VII, like the New Zealand law, protects employees from unwanted sexual advances, comments, etc. Having sex with customers is a prostitute's job. Getting harassed because of her sex by the boss is not and could easily be considered unwelcome.
Whew...I can't believe I just pulled off a post on prostitution and employment law.
Where's my Pulitzer!!!
Yesterday, I read this post from Sara Hutchins Jodka at Employer Law Report about how to pay employees for Daylight Savings Time work and comply with the Fair Labor Standards Act.
Then I ate a big bowl of pulled pork and I thought to myself, "Damn, I'm feeling lazy tonight! With the bazillion posts that I've published -- and for which none of my freeloading readers have ever offered to pay -- there must be a Daylight Savings FLSA post I can recycle."
I bring you, the aptly titled: "CHEATSHEET: How to pay employees for Daylight Savings Time work."
In a few weeks, the National Football League owners are going to consider a proposed rule governing the use of the "N"-word during a football game. If the rule goes into effect, any team with a player who uses the "N"-word during a game, will be assessed a 15-yard penalty.
Players, young and old, disagree on the rule.
Here are Michael Wilbon and Jason Whitlock from ESPN's Outside the Lines debating the merits of the proposed new rule.
In yesterday's edition of The MMQB on CNNSI, Seattle Seahawks cornerback Richard Sherman told sportswriter Peter King that "[Banning the n-word] is an atrocious idea."
Mr. Sherman, who claims that the proposed rule is "almost racist", explained that the "n-word ending in -er' is racist, but the n-word ending in -a' is not, when used among African-Americans."
According to The MMQB, that view doesn't resonate with former NFL player Harry Carson.
"I find it very disheartening that in our society today we're having a debate about the n-words being used as a term of endearment," Carson said on Sunday. "If that's a term of endearment, go up to your grandfather, or an elderly black person, and use it on them. See how they react. For those who use it, I say they have no sense of history."
The NFL, like any other workplace, should promote respect.
Whether it's splitting hairs, or the line between "-er" and "-a" is much deeper, as an employment lawyer, I advise clients to remind their workforce that, when it comes to comments involving a protected class, the law doesn't focus on the intent of the speaker.
Rather it is how the words are received. If the "victim" is offended and a reasonable person in the victim's shoes would be offended as well, then the speaker is out of line. Period.
(And remember, even if the "victim" is not offended, the words could upset a co-worker who overhears the comment. That too is enough to create a problem).
But, while I do not agree with Mr. Sherman that the proposed rule is "almost racist," Mr. Sherman's assessment, that a rule like the one proposed by the NFL doesn't go far enough, resonates with me.
The gridiron is a workplace, maybe not like any other workplace. But it's a workplace nonetheless. In what workplace across America are words that are (or could reasonably be) construed as ethnic slurs be tolerated?
The NFL should be no different.
Whether it's a 15-yard penalty, or some other punishment, I hope that the NFL takes reasonable steps to eradicate language and behavior that, in any workplace across America, could be reasonably viewed as creating a hostile work environment.
What do you think about the NFL's proposed rule? Let me know in the comments below.
But, faced with those facts, that didn't stop one employer from moving for summary judgment and asking the court to dismiss a female employee's claims of sexual harassment.
Could the company have possibly prevailed? Find out after the jump...
Oh wait, before we jump, I left out the part where the plaintiff claimed that her male co-worker also told her, "I'll have you cum before you get your pants off."
And then there's the time when that same co-worker said, "Hey! we got your Christmas present!" whereby he held up a vibrating tool and thrust it towards the plaintiff's genitals.
And what about the other male co-worker who would routinely come up from behind the plaintiff, lean in and smell her in a sexual fashion while pushing his groin into her?
Or when another male co-worker said to the plaintiff, "I just like fucking with you, why would I want to get you fired? I would miss watching that ass of yours!"
Ok, now we can jump and play did the employer get the case dismissed on summary judgment?
Dad is the former headmaster at a school in Florida. When the school failed to renew his employment contract, he sued for age discrimination and retaliation. Eventually the two sides settled, with the school to pay $10,000 in back pay, $80,000 as a "1099", and $60,000 to dad's attorneys.
The settlement was strictly conditioned upon confidentiality. It included a provision that divulging even the existence of the agreement, would cost dad the $80K payment.
But, only four days after the agreement was signed, and before making any settlement payments, the school notified the father that he had breached the agreement based on the Facebook posting of his college-age daughter:
"Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT."
This Facebook comment went out to approximately 1200 of the daughter's Facebook friends, many of whom were either current or past students at the school.
When the school later withheld the $80K, the father sued to enforce the settlement agreement to get his loot. But the Court, in this opinion, sided with the school:
"Before the ink was dry on the agreement, and notwithstanding the clear language of section 13 mandating confidentiality, Snay violated the agreement by doing exactly what he had promised not to do. His daughter then did precisely what the confidentiality agreement was designed to prevent, advertising to the Gulliver community that Snay had been successful in his age discrimination and retaliation case against the school."
Honestly, I'm surprised that the court enforced such a large penalty provision in the settlement agreement. But, then again, the violation -- broadcasting the existence of the agreement to 1200 people -- is fairly egregious.
That's why, when I draft settlement agreement, I often include confidentiality language warning that keeping quiet about the agreement means shutting your yap and your social media fingers.
(h/t Ashley Collman @ UK Daily Mail)
I'm using pitcher Carlos Martinez's porn-filled Twitter feed to teach you a social-media-and-the-workplace lesson.
The other day, Deadspin tweeted this headline:
Carlos Martinez's Twitter favorites: a big ol' wall of porn http://t.co/SA3qss6nrr-- Deadspin (@Deadspin) February 24, 2014
Now, before you say anything, remember, I read Deadspin for their keen insight into the world of sports. And sometimes that means reading a post about porn. That holds especially true when there's a potential social-media-and-the-workplace post in it for you, my wonderful readers.
Hey! A blogger's gotta do what a blogger's gotta do, right R. Kelly?
So, yeah, St. Louis Cardinals pitcher "favorited" a lot of porn on his Twitter feed. A feed which has about 22K followers.
Someone give that man a Twitter lesson. Oh, right, Martinez claimed he was hacked.
*** cough *** ***
bullsh*t *** *** cough ***
Either way, after the St. Louis Cardinals learned the news, they
briefly considered spinning it into a "Carlos Martinez KY Jelly Giveaway" day at the ballpark weren't happy.
But, they used the incident as a springboard to focus on social media education for their players, so that something like this doesn't happen again.
Still, could this have been prevented? How confident are you that your employees understand the potentially embarrassing digital breadcrumbs that their Twitter activity may create?
*** napalms Twitter feed ***
May I make a little suggestion? Maybe it's time to dust off that social media policy, update and reissue it, with a little social media training to boot.
Ensure that, at the very least, your employees know how to keep their off-the-clock social media activities from bleeding into the workplace.
It could save you a Carlos-Martinez-sized headache.
Three years at this blog without discussing mohawk hairstyles in the workplace. Now, two posts in one week. Which reminds me of the time I dressed up as BA Baracus for Halloween in law school
Ah, yes. That mohawk....and BA's fear of flying. Ties right into today's post.
(I love it when a plan comes together)
You see, recently, I read this opinion about a flight attendant who donned a mohawk and claimed sexual-orientation discrimination under NJ state law.
Yes, he claimed that the crap he took from his supervisors for his mohawk was because he was gay and, consequently, they had created a hostile work environment for him. And to attempt to prove his case, the plaintiff proffered pictures of other employees with "extreme hairstyles," whom he claimed received more favorable treatment than he.
This argument did not persuade the Court:
"Plaintiff must ultimately show by a preponderance of the evidence that he suffered discrimination because of his sexual orientation....Indeed, nothing in the record suggests that these employees whose extreme hairstyles Continental allegedly has never questioned are heterosexual...Based on the record before it, this Court cannot conclude that these photographs are probative of any discriminatory animus on the part of Plaintiffs supervisors, as they fail to suggest that Continental applied its grooming policy to Plaintiff in a discriminatory fashion because of his sexual orientation."
So, go ahead. Tease the heck out of the guy in the mohawk. Fire him if you want. And don't pity the fool.
Today's let's focus on a major employer pitfall: intermittent leave under the Family and Medical Leave Act.
The FMLA regulations define intermittently leave this way:
"FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time."
Now, an employer can require that an employee taking FMLA provide a medical certification. And if the employee seeks intermittent leave for planned medical treatment, the certification should state the dates on which such treatment is expected to be given and the duration of such treatment.
Importantly, the law is clear that if an employee submits a complete and sufficient certification signed by the health care provider, the employer may not request additional information from the health care provider. And an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee unless an exception applies.
So, it piqued my interest when I saw this opinion following a lawsuit initiated by an Oregon employer, which sued its employee and asked a federal court to bless the employer's policy of requiring a separate doctor's note for every absence, FMLA or otherwise.
Because, the Court, was all like, hells no:
"While both the FMLA itself and its implementing regulations are silent on the specific question at issue here-whether Oak Harbor's doctor's note policy to support an already medically certified FMLA-protected absence is permissible-the statute and regulations 'show an intent to limit medical verification to certification and recertification as delineated. Neither the FMLA nor its regulations provide for any other means by which an employer can require documentation from an employee's medical provider.'"
In other words, requiring a doctor's note for each absence is tantamount to requiring a medical certification for each absence. And that's FMLA interference.
So, what this means for you, friends, is that when an employee comes to you and seeks intermittent leave, make sure to request a medical certification to ensure that the initial FMLA request is warranted. If that certification seems sketchy, consider a second and third medical opinion.
But, if that certification passes muster, be mindful of the rules governing re-certification.
That social media policy of yours. The one in which you begrudgingly tolerate employee social media use on their own time and roadblock their efforts to use it at work.
You may want to revise it. ASAP!
Chad Brooks at Business News Daily reports here about a recent study by two members of the Society for Industrial and Organizational Psychology, which concludes that workplace morale improves when employees use social media on their smartphones at work.
According to the study, the average employee uses a smartphone for about 20 minutes during the workday. And, generally, anywhere between 20 and 25 minutes doesn't affect productivity and is good for the employee.
Using a smartphone to tweet, check Facebook, and the like, is no different than spending that time checking email, talking on the phone, or reading a book. It's a few minutes a few times throughout the day that an employee can recharge the batteries, so to speak.
So, consider encouraging -- yes, encouraging -- your employees to social network at work.
Image credit: Jfingas on Flickr
That's how I start my next oral argument when defending a claim made under the Americans with Disabilities that one of my employer clients regarded an overweight plaintiff as disabled.
So, who wants some of what I'm drinking today?
Hey, it's peppermint tea, jerk! And I'm not pulling this blog lede out of my butt. Well, not completely, I'm not.
Check out this recent federal court decision in which a plaintiff alleged that her former employer violated the ADA by firing her because it regarded her as morbidly obese.
Now, for those of you who are a little rusty on the "regarded as" ADA claims...
*** pulls collar ***
The ADA covers those individuals whom an employer regards as having a disability, even if they don't actually have one. A plaintiff establishes a "regarded-as" claim by showing "that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."
(More on "regarded as" here)
So, getting back to this recent case, in the context of a "regarded as" ADA claim, the judge likened being overweight to having a neon green mohawk, neither of which qualifies as a disability:
"Plaintiff's argument improperly equates a physical characteristic (i.e., overweight status) with an impairment. However, plenty of people with an 'undesirable' physical characteristic are not impaired in any sense of the word. To illustrate the point, suppose plaintiff wore her hair in a neon green mohawk. Such an unconventional hairstyle choice might be viewed as unprofessional, and might well impede her efforts to sell hospice services to physicians and senior living facilities, but it obviously is not a physical impairment. The same goes for weight. An overweight sales representative may have difficulty making sales if the prospective customer perceives her appearance to be unprofessional, but that does not render her weight a 'physical or mental impairment' within any rational definition of the phrase. At most, plaintiff's evidence is that Merrell perceived that Gentiva customers were less likely to purchase hospice services from an overweight sales representative (just as they would be less likely to purchase such services from a sales representative sporting a green mohawk). Neither the hairstyle nor the weight is an actual or perceived impairment in that scenario. Yet that is all plaintiff offers on summary judgment."
Now, of course, there may be situations in which morbid obesity could be an actual disability, where it affects a major life activity. Similarly, an employer could perceive an overweight employee to be disabled.
Just don't let that perception motivate you to fire the employee.
Then, you'll have more problems than the dude in the neon green mohawk.
Image Credit: Alechemy Overload on Flickr