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That may be sugar coating it a bit.

A county employee, who applied for a lateral transfer, and ultimately received that transfer, was able to convince two judges on a federal appellate court that the transfer was discriminatory.

That’s right. An employee may have a discrimination claim for receiving the specific transfer he requested.

Here’s what the two-judge majority wrote in this opinion:

[W]e conclude that under certain circumstances, a voluntary or requested transfer may still give rise to an adverse employment action…We emphasize that the key focus of the inquiry should not be whether the lateral transfer was requested or not requested, or whether the aggrieved plaintiff must ex tempore voice dissatisfaction, but whether the “conditions of the transfer” would have been “objectively intolerable to a reasonable person.”

Let me stop there for a second to add that the plaintiff in this case testified that he viewed the transfer as improving his potential for career advancement. Still, that didn’t appear to matter much to the Sixth Circuit Court of Appeals:

Indeed, an employee’s opinion of the transfer, whether positive or negative, has no dispositive bearing on an employment actions classification as “adverse.”

For what it’s worth, one judge did dissent. I’m on board with his reasoning:

Deleon voluntarily applied for the job with full knowledge of its pros and cons, making it difficult to fathom how he could premise a claim of retaliation on the transfer alone. A retaliation claim requires the employer to do something bad to the employee–something that might “have dissuaded a reasonable worker from making or supporting a charge of discrimination.” That concept cannot be bent and stretched to cover an employer’s decision to grant an employee’s request for a transfer. No reasonable employee in Deleon’s position would have interpreted the transfer as an act designed to prevent him from exercising his rights against anti-discrimination.

And, thankfully, I practice in the Third Circuit Court of Appeals, where the employers I represent are not bound by the majority’s decision here.

For more on this decision, check out Jon Hyman’s post at the Ohio Employer’s Law Blog.

Joely Caroline Meyer
Born January 10, 2014 (7 lbs., 3 oz.)
Joely.jpg“Dad, give me at least 24 hours out here before asking me to guest blog, would ya? Yeesh…”


MeyerFamily.jpg“Last time, we gave you 200 words on Sesame Street, and you paid us in Cap’n Crunch. We’re calling the DOL. And organizing!”

facebutton.pngAccording to a recent study soon to appear in the Journal of Management, not only is Facebook a horrible predictor of how younger recruits will perform for your business — there is absolutely zero correlation between Facebook activity and job performance — but those who rely upon Facebook to help judge potential younger recruits, are more likely to disqualify African-American and Hispanic candidates, in favor of Caucasian Facebook users.

Kashmir Hill details the study here in a recent article on Forbes.

So, if failing to meaningfully distinguish between younger job candidates, while increasing your odds of being sued for disparate-impact discrimination appeals to you, well then, have at it hoss!

Sorry, Aquaman. You’re SOL, son.

But Aquaman does love to get down to MGMT, I’m told. So here you go…

Same goes for the plaintiff in this case — the telepathy part, not MGMT — in which the employer had a leave policy which dictated that employees may take up to six months of leave if unable to perform his/her job with or without reasonable accommodation. After that, it’s sayonara, unless prohibited by law, or if the employee requests a leave extension.

In this particular case, the plaintiff was out on leave for back surgery. The plaintiff’s doctor told him that he probably wouldn’t return to work for a year. However, the plaintiff never informed either the employer or the third-party administrator. 

The plaintiff did not request to extend his medical leave of absence in accordance with company policy. He also did not ask to return to work in a different position because he knew his doctor had not released him to work. 

Ultimately, the plaintiff’s doctor did clear him to return to work, at which time the plaintiff returned with note in hand. Unfortunately, he came back three days after his six month leave expired. His company had already followed its own policy and terminated the plaintiff immediately after he failed to return at the six-month mark. 

The Court ruled in favor of the employer on the plaintiff’s failure-to-accommodate claim under the Americans with Disabilities Act, because the employer followed its own policy and was under no obligation to reconsider its decision when the plaintiff reappeared in the workplace three days after the six month deadline. 

So, learn from this case and practice two takeaways:

  1. Have an ADA policy that emphasizes that the onus is on the employee to communicate the need for leave, or some other form of accommodation under the ADA.

  2. Stick to the policy and limit the number of exceptions. Exceptions water down the policy and lead to lawsuits.

guestblogger.jpgToday, we have a guest blogger at The Employer Handbook. It’s Johanna Harris. Johanna has been a trial attorney with the U.S. Department of Labor and in-house labor counsel for two multinational corporations. She is currently the CEO of Hire Fire and Retire LLC. Her new book, USE PROTECTION: An Employee’s Guide to Advancement in the Workplace, is a basic primer on HR law and personnel policies.

Flexible work arrangements take many forms. Arranging flexible hours and schedules can be fairly straightforward and is often dictated by business needs. Flexibility of work location, however, is more difficult to manage. After the jump, this guest post addresses the issues raised by allowing employees to work at locations other than their assigned offices.

(Want to guest blog on an employment-law topic at The Employer Handbook? Email me).

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200px-One-half.pngBack in September, 2013, I blogged here about a NY jury finding that a black plaintiff called “nigger” — by her black boss — had been subjected to race discrimination.

Actually, her boss called her “nigger” eight times!

Well, ladies and gentlemen of the jury, that’s 103 fewer times than the ‘N’-word was used in Django Unchained,” is what the defense’s closing argument sounded like, I imagine.

Certainly, the jury was not too keen on that opprobrious slur being thrown around the workplace, no matter who the speaker. So, it responded with a $280K verdict.

Last week, however, the judge cut the jury award in half.

That’s not to say the judge condoned the employer’s behavior.

In this opinion, Judge Harold Baer, Jr. underscored that “under no circumstances that I can conceive of would calling a subordinate a nigger be acceptable conduct.”

Judge Baer further found that there was sufficient evidence to demonstrate that the defendant’s “plethora of discriminatory comments supports the jury’s finding of malice or reckless indifference to Plaintiff’s right to work free from race and gender discrimination.”

Was the plaintiff asking for trouble?

But, when it came to awarding compensatory damages for pain and suffering, Judge Baer concluded that the jury was too generous, especially when taking into account that the “Plaintiff’s efforts to invite a confrontation.”

(Yep, you read that right).

Additionally, Plaintiff’s decision to record her interactions with Carmona also supports a reduced emotional distress award. Thus, Plaintiff’s recordings, while surely helpful in proving her case, also demonstrate a willingness to engage Carmona to document his animus. And while not detracting from the fact that these comments were made, they pretty clearly reveal Plaintiff’s efforts to invite a confrontation with Carmona and fail to bolster support for an award that is founded on extreme emotional distress

So, instead of getting $250K, the plaintiff can now choose a new trial on damages or a reduced compensatory award of $128,109.59.

Don’t be like this employer.

Even at the reduced price of $15,000 per “N”-word, that’s enough incentive for employers everywhere to eradicate that hateful word from the workplace.

Image Credit: By http://fileformat.info (Page link (direct link)) [Public domain], via Wikimedia Commons

tomcruise.jpg

I’ll be the first to admit that I don’t know much about Scientology.

Why, my Scientology acumen could fill a thimble. Basically, I know that Tom Cruise is a Scientologist and Katie Holmes was a Scientologist; but, not anymore. Anything else comes from my favorite gossip blog, The Superficial, which is barely, if at all, safe for work.

(Although, I can guarantee you that if you search that blog for the word “Scientology,” the results will be anything but).

170,000 reasons not to force religion on your employees.

Yeah, so anyway, last week, I read with interest, this EEOC press release, in which the federal agency announced that it had settled with a Florida employer that had allegedly tried to force Scientology on its employees.

Here’s what the EEOC specifically claimed was happening in the workplace:

The EEOC charged in its suit that Dynamic Medical Services, Inc. (“DMS”) required Norma Rodriguez, Maykel Ruz, Rommy Sanchez, Yanileydis Capote and other employees to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving. The company also instructed employees to attend courses at the Church of Scientology. Additionally, the company required Sanchez to undergo an “audit” by connect­ing herself to an “E-meter,” which Scientologists believe is a religious artifact, and required her to undergo “purification” treatment at the Church of Scientology.

Whoa!

You can find a copy of the EEOC’s federal court complaint here.

The press release indicates that the employer will pay $170,000 as part of a consent decree. It will also require the employer to accommodate employees who complain about attending and/or participating in religious courses or other religious work-related activities for religious reasons; to notify EEOC if employees request a religious accommodation; to adopt an anti-discrimination policy that explains to employees their rights under Title VII with respect to religious discrimination; and to conduct training for DMS employees covering Title VII, and specifically focusing on religious discrimination.

So what can employers learn from this? I’ve got two takeaways.

  1. Proselytize at your own risk. As I’ve discussed here on the blog before, proselytizing, an effort to convert someone to a particular religion, is not prohibited per se in the workplace. This is because federal anti-discrimination law does not require that the workplace be sanitized of all religion (e.g., a Christmas tree, menorah, etc.).

    Where employers cross the line is by requiring participation in certain forms of religious expression (e.g., Scientology) without reasonably accommodating those who feel that participation would conflict with a sincerely-held religious belief. So, if my employer wants me to get my Scientology on by screaming at ashtrays, and doing so doesn’t conflict with my own sincerely-held religious beliefs, then I’d better start screaming.

  2. Scrutinize particular religions at your own risk too. All it takes is a sincerely-held religious belief. Just because an employee believes that his religion should involve purification treatments and using an e-meter, doesn’t mean that you as the employer have the right to second-guess it. Doing so, will inevitably lead to a religious-discrimination claim.

    Want to sanitize your workplace of religion altogether? Knock yourself out. But, don’t make exceptions for particular religious groups (e.g., allowing Christmas trees and menorahs, but not e-meters). That’s another recipe for a religious discrimination claim. Even so, if an employee requires a reasonable accommodation related to his religion, you may need to provide it, unless doing so will cause undue hardship (i.e., added cost to the employer or an imposition on co-workers).

No disrespect intended with today’s music selection.
(and because there is no “She Blinded Me With Scientology”)

And I say this with the fervor of 100 General Zods, such that Zod himself (especially, the crappy one from Man Of Steel, I’m a Terence Stamp man) would have no choice but to rise and kneel.

But I put down the moonshine funnel digress.

Today, The Employer Handbook celebrates its 3rd birthday. And what did The Employer Handbook get for its 3rd birthday? I mean, in addition to the strawberry edible underwear that one of my readers sent me anonymously. (Next year, go large. Medium, is a bit snug). Well, you guys voted The Employer Handbook ABA Journal’s 2013 Top Labor & Employment Law Blog!

It’s a humbling honor that leaves me nearly speechless. Nearly.

You see, frankly, I started this blog three years ago because I enjoy writing about employment law, and you can only be so snarky in 140 characters on Twitter. And, with the encouragement of some other great employment-law bloggers (and a lot of patience from my wife and family), so began The Employer Handbook.

And lucky for me, y’all slugged through the typos, grammar mistakes, obscure wrestling references, hip-hop, and other assorted nonsense. Ultimately, the readers recognized this site as a pretty decent source of practical labor and employment law news and insight.

(But, not legal advice, check the disclaimer).

For that, in all seriousness, I am grateful. It means a lot to know that you enjoy this site.

So, let’s make a deal. If you keep reading my posts about long-shot FMLA legislation, wacky hostile work environments (24 sniffs?!?), and teachers getting fired over Facebook shenanigans, then I’ll keep publishing.

But, now, if you’ll excuse me, for Monday’s column, I have to finish reading about a recent EEOC settlement involving a company that allegedly forced its employees to scream at ashtrays — desk calendars, sure, but ashtrays? — and practice other forms of Scientology.

You just can’t make this stuff up.

nyres.jpgThe king is dead. Long live the king!

Teens are beginning to drop Facebook like a bad habit; instead, taking advantage of messaging apps like What’sApp, Snapchat, and Instagram to social network.

According to a GlobalWebIndex study highlighted in this Forbes article from Haydn Shaughnessy, “from Q2 2012 to Q3 2013 the percentage of active users among 16 – 19 year olds fell from 62% to 52% (these are active users in the sense of having contributed content), and among 20 – 24 year olds fell from 63% to 52%.”

What this means for your business is that your aging workforce comprises the largest percentage of Facebook users. Shaughnessy also reports that the “percentage of active users among the 35 – 44 year old age group rose from 47% to 53%, among 45 – 54 year olds from 43% to 49%, and among 55 – 64 year olds from 39% – 45%.”

Hopefully, by now, you have a social media policy. In 2014, make sure to conduct social media training — just as you would, say, respect-in-the-workplace training. (By now, I trust all of you HR pros have received an employee complaint about a co-worker, along with the printout of a Facebook page on which the complaint is based).

So, consider pairing social media training with respect-in-the-workplace training to address how online behavior — even “off the clock” — can still impact the workplace.

However, just as there is no one-size-fits-all social media policy, training too should be customized to your workforce. Consider not just any negative impact employee social media use could have on the workplace, but be sure to accentuate the positives. They do exist, you know.

If you have any social media training tips that you wish to share, please let me know in the comments below.

(One tip from yours truly, remind employees to adjust their Facebook privacy settings)