As my buddy Rubo used to say: "It's like school on Saturday; no class."
Read all about it -- yesterday's BIG federal appellate court decision; not my buddy -- after the jump...
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This isn't your average blog; this is The Employer Handbook. Read it cover to cover.
As my buddy Rubo used to say: "It's like school on Saturday; no class."
Read all about it -- yesterday's BIG federal appellate court decision; not my buddy -- after the jump...
An employee-plaintiff who claims that she was discriminated against under the Americans with Disabilities Act due to her pregnancy alone, will lose her ADA claim 10 times out of 10. This is because pregnancy is not a disability under the ADA.
But what if that same employee plaintiff with an ADA claim alleges that the discrimination relates not to her pregnancy, but rather to her morning sickness?
The answer after the jump...
Generally speaking, those who wait five years to complain about perceived sexual harassment in the workplace, don't win lawsuits if they are eventually fired.
But what happens when the complaint takes the form of a status update on Facebook? Does that offer the employee extra protection?
Find out after the jump...
Notice anything new at The Employer Handbook?
Maybe the image on the right.
Your other right. Yeah, there it is.
The Employer Handbook is officially the Grover Cleveland of the interwebz, proudly nominated twice -- in non-consecutive years -- by the American Bar Association in its Blawg 100 Amici as one of the top employment-law blogs in the galaxy.
Indeed, Your Blogness has been on quite a run recently. Have you seen the updated Speaking Engagements section of the blog recently? No? Well, go ahead, click and scroll down to check out my June 2014 gigs. I'll wait. Oh, that's no typo. That's speaking gigs <plural> at SHRM's 2014 Annual Conference and Expo.
Quick, someone fetch my scepter!
The rest of you, here's the drill:
For the next month, the ABA has requested that you winnow down the group of deserving employment-law blog nominees to a grand champion. You can do that by voting for The Employer Handbook here, clicking the banner below, or tweeting your support.
Seriously though, thank you to everyone who reads and supports this blog. We wouldn't be here without you.
Now, Vote Handbook!
Play some Skynyrd, man!
(Just pretend the song is about reckless indulgences in the workplace, rather than drugs and needles and such, k?)
Well, this is a new one for me.
A woman claimed that she was employed as a leasing manager for four days. And during those four days, two male co-workers sniffed her 12 times each.
*** Carries the one, curses, grabs calculator ***
The woman further claimed that, shortly after she complained to her supervisor about the sniffing, she was fired without explanation.
Sounds like we may have viable retaliation claim: (1) complaint about sexual harassment; (2) termination; (3) complaint caused termination.
Amazingly, the United States District Court for the Northern District of Texas granted summary judgment to the employer, concluding that no reasonable juror in the woman's shoes would have viewed herself as a victim of sexual harassment. To paraphrase the lower court's logic: "It's not like these guys grabbed her or anything. And besides, it was harassment, not sexual harassment."
The Fifth Circuit Court of Appeals in this opinion was all like, "WTH!" Wait, the court actually said this:
We hold that there is a genuine dispute of material fact whether the maintenance men's behavior violated Title VII....The sniffing and hovering over a woman, by two men, in a small, confined space could be viewed by a reasonable jury as harassment based on Royal's sex. Indeed, it is difficult to imagine the maintenance men sniffing and hovering over Royal if she were a man.
Remember, sexual harassment can take many forms in the workplace. When you train your employees, and especially your supervisors who are tasked with receiving complaints of sexual harassment, educate them about the many ways in which an employee may be sexually harassed.
Did I scare you yesterday with my post about the part-time employee denied leave under the Family and Medical Leave Act who may have an FMLA retaliation claim after receiving full-time hours?
Well, your blogtender is here with a double shot of courage. (See what I did there?)
*** blogtender pours himself a double shot of something else ***
In Travers v. Cellco Partnership (opinion here), the defendant-employer put on its big boy/girl underpants -- your blogtender doesn't discriminate -- and fired an employee on the day she returned from FMLA leave.
Because, guess what? The employee was warned and disciplined about performance issues before she took any FMLA leave and the timing of her discharge was simply because she was on leave when the employer learned of her final misconduct.
And the employer won because, news flash, it ain't FMLA retaliation if the FMLA doesn't motivate the firing.
Now, before you start caution to the wind, keep in mind when the employer prevailed in this case: summary judgment. How much did the employer have to spend in legal fees to get there? Whatever the outlay, that money would be recouped from the plaintiff.
So, fire slow and hire fast.
*** just checking ***
Come on, gang! Did you see yesterday's blog masterpiece? Those .gif's don't animate themselves. My little elves -- I'm classifying them as FLSA exempt by the way -- crank the wheel every time you land on the page. So, cut me some slack; I'm taking it easy today.
But, check this out. We have a part-time employee who claims that her three requests for leave under the Family and Medical Leave Act to care for a sick spouse are denied. Then, less than a month later, her boss gives her full-hours.
In this economy?!? What nerve!
But, possible FMLA retaliation claim?
Yes, according to a Maryland federal court in this opinion. Assigning full-time work to a part-time employee may constitute an adverse employment action, which, along with the protected activity (the FMLA request), and a connection between request and hours, completes the FMLA retaliation trinity.
So, learn from this and be careful about adjusting the terms and conditions of employment -- in any way that could arguably be construed as adverse -- shortly after an employee requests/takes FMLA leave.
So, yeah, we need a theme.
[Lousy blog rules]
Two years ago, we spun some tunes with the "Employment Law Blog Carnival: Jukebox Edition." That featured such hits like "If You Love HIPAA, Let Me See You Twerk It" and a Sex Pistols B-side hidden track about social media policies.
Last year, I went with the "Employment Law Blog Carnival: Hollywood Casting Call Edition." To the casual internet user, my writing in that post may have seemed, oh, what's the word, "deranged"? Here is an actual quote:
Stuart Rudner blogs "When trust has been destroyed: Just cause for dismissal." The Canadian adaptation, "Haste Makes Waste," is set for release next year and stars Dustin Diamond as Wayne Gretzky. No, not that Wayne Gretzky. Just some guy who plays a total screw-up and happens to have the same name as the "Great One," which, in turn, helps him to keep his job.
But, to you, my fans, you recognize it as something more than the product of some bad salmon I ingested just before a marathon two-finger typing session. It's gold!
So, mainly since my brain is fried from churning out this drivel -- free drivel -- every weekday, let's stick with the Hollywood theme. How about the Employment Law Blog Carnival: Hollywood Villains Edition? Hannibal Lechter would approve, I'm sure. You may even see him after the jump.
So grab some liver, fava beans and nice chianti and click through to read the carnival offerings...
Last week, the U.S. Equal Employment Opportunity Commission held a public meeting in Washington, D.C. at which invited panelists spoke on national origin discrimination issues in today's workplace.
Participants discussed various recruitment and hiring issues; discriminatory treatment in assignments; pay discrimination; language and accent issues; effective communication and access issues; harassment; and retaliation.
The EEOC's event press release highlighted some comments and issues of which employers should take note. Most notably, one management-side lawyer, Douglas Farmer, testified that the multi-cultural workplace presents challenges for employers. For example, based on their cultural background, some men may find it difficult to have a female supervisor.
The press release highlights some of the solutions Attorney Farmer proposed:
Farmer cited the need for extensive education about both rights and responsibilities under the law. He suggested that the EEOC develop training modules in a variety of languages as well as a model anti-harassment policy, and make them available on its website for employers to download.
You can read the full written testimony from Attorney Farmer, as well as the other panelists here.
While the EEOC sorts these issues out, proactive employers will want to consider second-language employee handbooks and obtaining legal advice before implementing an "English-only" policy in the workplace. Both of these approaches can help you avoid facing charges filed with the EEOC.
A prison guard for the Arkansas Department of Corrections drove 27 work-release inmates in a van to a parking lot next to a fried chicken joint. Rather than hit the drive thru, the prison guard left the 27 criminals in the van and went inside to place his order.
For what it's worth, the prison guard testified that there were no other customers ahead of him in line. Further, the prison guard thought that his chicken stop did not violate any employer policy or rule.
[Can't wait until I revise my next prison guard handbook to include the "Don't leave work-release inmates alone in a getaway vehicle to order fried chicken" policy].
So, yeah, dude got fired.
He filed a grievance and lost. Then he sued for race discrimination in federal court, and now finds his out-of-court self the subject of a snarky post on an employment-law blog.
Why did he lose in federal court, you ask?
Would you believe that the prison guard was unable to show that his former employer's reasons for fire him were pretext for discrimination? Specifically, the prison guard couldn't point the court to anyone who had also gone on a chicken run and left 27 work-release inmates unattended.
The opinion is silent about whether he enjoyed the chicken.
The case is Beard v. Arkansas Dep't of Correction.
This post has been updated to remove typos.
It's been a while since we've discussed discipline for employee Facebook behavior. So, let's go over some basics. Generally speaking:
- one employee, griping alone on Facebook about his employer, can be fired; but
- two employees, complaining together on Facebook about their employer, cannot be fired.
The distinction is that the two employees are engaged in concerted activity -- group discussion of workplace issues -- which, even in a non-union private-sector workplace, is protected under the National Labor Relations Act.
However, as two employees recently learned, concerted activity has its limits -- even on Facebook.
Moore and Callaghan worked for a non-profit in California -- right up until their employer learned about this conversation on Facebook:
Moore: U goin' back or no??
Callaghan: I'll be back, but only if you and I are going to be ordering shit, having crazy events at the Beacon all the time. I don't want to ask permission, I just want to be LIVE. You down?
Moore: I'm goin''' to be a activity leader I'm not doing the t.c. [sic] let them figure it out and they start loosin' kids I ain't help'n HAHA
Callaghan: ha ha ha. Sweet. Now you gonna be one of us. Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach kids how to graffiti up the walls and make it look cool, get some good food. I don't feel like being their bitch and making it all happy-friendly middle school campy. Let's do some cool shit, and let them figure out the money. No more Sean. Let's fuck it up. I would hate to be the person taking your old job.
Callaghan: hahaha! Fuck em. Field trips all the time to wherever the fuck we want!
Moore: U fuck'n right see you
After the employer canned both Moore and Callaghan, Callaghan pursued an unfair labor practice claim with the National Labor Relations Board.
An Administrative Law Judge determined (here) that this Facebook conversation did constitute concerted activity. However, the ALJ upheld the termination, concluding that the employer reasonably believed that the Facebook comments jeopardized the employer's funding and the safety of the youth it serves.
Of course, it will not surprise me if this goes up to the full Board on appeal and gets reversed.
Since taking an acute interest in social media and the workplace, the Board's position has been that employees have a fairly unfettered right to discuss terms and conditions of employment together on Facebook. Thus, if you have employees who engage in similar online behavior, whether you are unionized or not, don't count on a termination holding up if the matter is presented to the Board.
Earlier this year, the City of Philadelphia got this close to passing a bill requiring local employers to provide paid sick leave to employee.
PA Rep. Seth Grove (York County-R), wants to make sure there are no such close calls in the future.
Late last month, Rep. Grove introduced this bill in the PA House of Representatives, geared towards "providing statewide uniformity regarding vacation and other forms of leave mandated by political subdivisions."
Specifically, Rep. Grove's bill, if passed, will prohibit PA municipalities from "requiring an employer to provide an employee or class of employees with vacation or other forms of leave from employment, paid or unpaid, that is not required by Federal or State law, and may not require an employer to compensate an employee for any vacation or other forms of leave for which Federal or State law does not require the employee to be compensated."
(The bill, if passed, would not affect paid-sick-leave laws for municipal employees, such as the one presently in effect in Philadelphia. Although, Philly's law is broad enough to affect employers who do business with Philadelphia. So, who knows?)
In a September 16 memo, Rep. Grove lamented that local paid-sick-leave laws "create an uneven playing field for the businesses located inside the municipality," while "businesses with more than one location are forced to comply with a variety of different and changing mandates."
I'll add updates as the bill advances through the House.
Ordinarily, I'm reluctant to recommend online modules that help HR professionals create workplace policies.
Like the one I used to create a Borat Workplace Dress Code. Maybe it was the alcohol talking, but I was certain that the one-piece, over-the-shoulder, male swimsuits wouldn't create a donning and doffing FLSA issue.
Hey, this post got weird quick. Didn't it?
And speaking of inebriants...
Yesterday, in the course of noodling around for some fodder to update a Drug-Free Workplace Policy, I found this site from the U.S. Department of Labor, which walks employers through some of the issues to be considered when drafting a policy. It then allows employer to actually building a policy from scratch using DOL-suggested language.
The DOL's policy builder is a nice platform to get you started. Just look out for some potential pitfalls such as asking employees about prescription and over-the-counter drugs. If you get too nosy, the EEOC may come calling. To be safe, have the finished product reviewed by employment-law counsel before implementation.
If I ever handled a plaintiff's case again, at deposition, I would be sure to take a page out of the playbook of Texas employment lawyer, Mike Maslanka:
Ask the manager who decided to fire the plaintiff whether he's eligible for re-hire. An unprepared manager might blurt out, "Of course not; he's suing us." Say hello to a retaliation claim.
I thought of Mike as I read this recent Texas Court of Appeals case about an employer that admitted at trial that, its receipt of EEOC right to sue letters "prompted" it to place the following notes on the Charging Parties' personnel files:
"Please note he is not eligible for rehire ever. Tried to sue us. Simply tell him, 'sorry but we have nothing for you at this time. Please try again. Have a nice day.' Not for rehire. Per Ben G."
Folks, that's stupider than the time in high school that a combustible combination of curiosity and boredom led me to disregard the warning on the container of Icy Hot balm, about where not to rub the balm.
The notes in the personnel files was enough for the appellate court to uphold the jury finding of both retaliation and malice.
Remember, that anti-retaliation laws apply not only to current employees, but also former ones too. And if there's anything a jury hates more than straight-up discrimination, it's retaliation, which happens to be the most popular claim filed with the EEOC.
When the Americans with Disabilities Act Amendments Act ("ADAAA") went into effect on January 1, 2009, the changes to the Americans with Disabilities Act ("ADA") emphasized construing the definition of "disability" to provide broad coverage of individuals to the maximum extent permitted by the terms of the ADA.
In other words, nowadays we're all disabled.
However, if you're going to take your employer to trial on a disability discrimination claim, you still need to show a "disability."
Otherwise, the Americans with Disabilities Act would be the "Americans with Act" and that would be more confusing than the Royal Tenenbaums.
Just ask the Fifth Circuit Court of Appeals in this recent opinion:
Although the text of the ADAAA expresses Congress's intention to broaden the definition and coverage of the term "disability," it in no way eliminated the term from the ADA or the need to prove a disability on a claim of disability discrimination. In other words, though the ADAAA makes it easier to prove a disability, it does not absolve a party from proving one.
But, just because the Fifth Circuit is a stickler for the details, doesn't mean that you should be in the workplace. If an employee comes to you complaining of a bad back, or a sore wrist, or the like, sure, you can make them establish it medically. But, know that the burden of establishing a "disability" is low. So, instead, focus on discussing with that individual a reasonable accommodation that will allow the employee to perform the essential functions of the job.