Michigan Employment Law Connection

Time to check the dress code? Can an employee be "too hot?"

noreply@blogger.com (John Holmquist) — Wed, 23 May 2012 14:09:00 +0000

According to news reports , a 28 year old female employee was fired from a Manhattan based lingerie wholesaler because she wore inappropriate clothing to work. At a press conference with her attorney Gloria Allred, the woman said that she was told by a female supervisor to tape down her breasts and was given a full length bathrobe to wear. She was also told that the Orthodox Jewish owners disapproved of what she was wearing. The woman has field a charge with the EEOC alleging sex and religious discrimination.

The EEOC addresses the issue of dress codes on its web site in a "prohibited practices" section. The section states that an employer may establish a dress code to apply to all of its employees. It also discusses exceptions which may arise based on an employee's national origin and requests for accommodation based either on disability or religious beliefs. The Small Business Administration also has a discussion of dress codes on its web site. The SBA states that policies should avoid singling out a particular group. It gives the examples that requiring men to wear ties but not women is permissible while allowing men to wear jeans but not women would not be permissible.

The charge raises the issue of appropriate appearance. If the standard is that an employee cannot be "too hot," presumably men cannot wear wear tight t-shirts or pants. As to enforcing this obviously subjective standard, an employer may borrow from Justice Stewart's observation with respect to obscenity that you know it when you see it.

An employer has a right to implement a dress code policy, provided it does not discriminate. Specific examples of what is considered appropriate and inappropriate should be given to employees , and employees should be encouraged to bring questions concerning the propriety of clothing to their supervisors or to HR. It is also advisable to remind supervisors that when that they are enforcing the policy, the term "inappropriate" is better than "too hot."

Employer imposed time limitations and the 6th Circuit

noreply@blogger.com (John Holmquist) — Sun, 20 May 2012 11:27:00 +0000

The Sixth Circuit Court of Appeals has held in an unpublished decision that a contractual 180 day time limit for challenging employment actions prevented a claim brought under the Uniformed Services Employment and Reemployment Rights Act("USERRA"). Although an amendment to the statute limits the impact of the decision since an employer can no longer impose a time limit on USERRA claims, the case reaffirms the Sixth Circuit's approval of the 180 day limitations period utilized by many Michigan employers.

The agreement signed by the plaintiff stated that any employment related claim must be filed with 180 days of the event giving rise to the claim, and that all limitations periods to the contrary were waived. The employee could pursue his claims in any available forum without first filing a grievance or pursuing arbitration. The court noted that it had previously held that there is nothing " inherently unreasonable" about a six month limitations period contained in an employment agreement. Thomas v. DaimlerChrylser, 397 F. 3d 352, 357 (6th Cir. 2004).

Many employers have had second thoughts about creating and requiring the exhaustion of a contractual arbitration procedure with non union employees. As the Michigan courts have required more procedural safeguards for employees, the costs of such procedures, while not equaling the costs of litigation, are no longer insignificant. The limited judicial review of an arbitrator's award is also a major concern. As a result, many employers are now utilizing agreements similar to the six months limitation period reviewed by the court.

Implicit Bias in Iowa: Round 1

noreply@blogger.com (John Holmquist) — Sat, 12 May 2012 21:55:00 +0000

In a 56 page decision, Judge Robert Blink entered judgment for the state. Judge Blink concluded that the plaintiffs failed to prove that subjective, discretionary decision making, permitted by the state's abdication of its oversight responsibilities caused disparate impact with respect to hiring and promotion decisions. The judge noted that plaintiffs did not assert that the state's action was done intentionally or with malice.

The plaintiffs attempted to bridge the gap between disparate racial outcomes and discretionary subjective decision-making by relying on implicit bias. The judge found, however, that the mere fact that a discretionary system produces bottom line racial disparity is not enough; a specific employment practice must be identified as the "culprit."

The judge referenced the U.S. Supreme Court's decision in Wal-Mart, 564 U.S.__(2011), as supporting the proposition that subjective discretion alone is not a "bad thing, " and that it should not itself raise an inference of discriminatory conduct. Many qualities of a good employee may not ascertained through purely objective, standardized testing.

In reviewing the testimony of one plaintiff's experts, the judge noted that the expert testified that he would not use the phrase "implicit bias" in writing a scientific article, which led the judge to question why it should be given more weight in a court of law. "Implicit bias" does not mean prejudice but rather reflects attitudes.

Neither of the two experts addressing implicit bias could offer a reliable opinion as to how many or what percentage of the decisions made by the managers were the result of "stereotyped thinking." One expert acknowledged that there was relatively little representative data for Iowa. When asked if he could give an opinion with "scientific certainty," the expert responded he would be "willing to bet if a study were done" the percentage would be around 75%. The judge stated that the testimony was an opinion of conjecture and not proof of causation. Attorneys for the plaintiffs said they plan to appeal Judge Blink's decision.

The judge's decision is likely not the last word on the issue of implicit bias, but it certainly provided a reasoned analysis for why the theory could not apply. Hiring and promotion decisions are likely to encompass subjective decision making. As long as there is oversight and training of managers involved in these areas, employers should be able to continue to incorporate a degree of subjectivity in making personnel decisions. Judge Blink correctly noted that a specific employment practice must be identified. Round 1 for the state.

Asking the question: the EEOC's enforcement guidance on arrests and convictions

noreply@blogger.com (John Holmquist) — Wed, 09 May 2012 21:31:00 +0000

On April 25, 2012, the EEOC issued its enforcement guidance on use of arrest and conviction records in employment decisions under Title VII. The issuance was the culmination of a process which began last year when the EEOC conducted a hearing on the issue on July 26, 2011. Although the Commission has stated that it is not changing its fundamental position on the issue and that it is not a "new" idea to apply Title VII to the use of criminal history information, employers who believe that nothing has really changed are mistaken.

The EEOC has issued a "best practices" guideline for employers to follow. Among the best practices is the implementation of a procedure for individualized assessment. An employer would inform an individual that he or she may be excluded from employment because of past criminal conduct and provides an opportunity for the individual to demonstrate that the exclusion does not properly apply to him or her. The assessment would consider whether the information provided shows that the policy, as applied, is not job related and consistent with business necessity. Such a practice is certainly a departure for most employers who inquire into criminal records.

What about the question seeking the information which usually appears on an employment application? Can an employer still ask the question? The "best practice" that is suggested is "When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity." So, an employer can still ask about prior conviction but may need to change the language of the question. Merely asking if an applicant has been convicted of a crime may not be enough. An employer should consider adding language that indicates if the answer is yes, the applicant should provide information as to the circumstances involved.

So what if an applicant does not answer the question truthfully, and the employer subsequently finds out that there was a conviction and either refuse to hire the individual or fire the employee who had been hired. For example, consider the situation involving a woman in Milwaukee who was fired by a bank for a shop lifting conviction in 1972. The woman did not handle money and worked in telephone customer service. The conviction was uncovered in a background check. The story does not reveal the reason for the termination: the conviction or failing to disclose on the application.

In many cases, applicants do not disclose convictions on the application form, and in the course of the pre-employment background check, the employer learns of it and uses the falsification as the reason for rejection. It seemed clear in the past that the refusal to hire for the falsification was a legitimate reason. How about now? The EEOC's guidance does not prohibit the question concerning prior convictions, but what if the EEOC takes the position that the position in question is one where the employer cannot establish its opinion either job relatedness or a business necessity?

The answer may depend upon the actual language of the question and whether the employer has indicated on the application that it conducts an individualized assessment of the circumstances. Regardless how the EEOC views the impact of this enforcement guidance, the impact on employers is significant. It is time to review the issue of criminal convictions as a basis for rejection of an applicant and to also consider how the employer asks for the information. Employers have always considered the rejection of an applicant for falsification as a legitimate reason for termination. Will the EEOC?

NLRB and arbitration of class claims

noreply@blogger.com (John Holmquist) — Mon, 30 Apr 2012 21:29:00 +0000

The NLRB issued a press release today announcing that a complaint had been filed against 24 Hour Fitness Center for maintaining a requirement that all employees agree as a condition of employment to forego the filing of class action or collective arbitration and that all employment related disputes be resolved on the basis of individual arbitration.

The press release stated that the company had asserted its policy in no less than seven cases brought by employees for a variety of work related claims. A hearing is set for June 11 before an administrative law judge, and the remedy sought is the discontinuation of the enforcement of the restriction.

The complaint is another example of the Board's increasing presence in and regulation of the non-union work place. An expansive interpretation of concerted, protected activity by the Acting General Counsel means that policies and procedures now have to be reviewed for the potential impact on employees under the NLRA. Regulation of non union arbitration agreements has joined employer social media policies and employee handbooks as areas ripe for NLRB review and regulation.

Reunion

noreply@blogger.com (John Holmquist) — Sun, 29 Apr 2012 22:09:00 +0000

Things have been quiet here while I have gone off to a college reunion and a short swing through the south. Time to get back to what the EEOC and NLRB have been doing!

The NLRB and social media: The next phase and more scrutiny

noreply@blogger.com (John Holmquist) — Thu, 12 Apr 2012 21:08:00 +0000

In January of this year, the Acting General Counsel issued his second report on cases involving social media that have been considered by his office. The report discusses fourteen cases and the action taken, including the issuance of a complaint. The decision to issue a complaint moves the matter to the next phase of the Board process--the administrative law judge("ALJ") hearing.

The issuance of a complaint reflects the belief of the regional office that an unfair labor practice has been committed. The position taken by the Acting General Counsel may or may not be adopted by the ALJ depending upon the evidence presented at the hearing. At the ALJ, the counsel for the General Counsel and counsel for the employer have the opportunity to present witnesses and evidence in support of their positions.The Complaint is the document that sets the parameters for the hearing and sets forth the alleged violations of the National Labor Relations Act.

A Complaint was issued by the Regional Director of Region 28 against Hyatt Hotels and its affiliates alleging violations of Section 8(a)(1) of the Act by the maintenance of overly broad and discriminatory rules in its handbooks, social media policy, Code of Business Conduct, and it acknowledgement form in its employee handbooks. The Complaint is based on an unfair labor practice charge filed by UNITE HERE International union. No discipline or discharge of employees is at issue.

The portions of the policies which are challenged are underlined in the Complaint. At issue are rules dealing with use of company images; disclosure of confidential information about the hotel or its employees; leaving work areas without permission; refusing to cooperate or to report violations of company policies and procedures; and making derogatory remarks or disparaging the hotel and it directors, officers, and employees. These allegations are becoming familiar in light of the Acting General Counsel's two reports.

The Complaint also references language in the acknowledgment of the employee handbook, typically referred to as the "at will" disclaimer. At issue is the following language in the acknowledgment:

I understand that my employment is "at will."
I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will status....
The sole exception to this is the at-will status of my employment, which can only be changed in a writing signed by me and wither Hyatt's Executive Vice President/Chief Operation Officer or Hyatt's President.

The "at will" disclaimer is a hallmark of virtually every employee handbook. The focus on this language in the Complaint should certainly get an employer's attention. The Complaint does not have to explain the legal theory behind the allegations. It appears the Acting General Counsel, through the Regional Director, is taking the position that the "at will" disclaimer is overly broad and confusing to employees in that engaging in protected, concerted activity is an exception to "at will" employment and therefore the "at will" languag is "chilling" of the exercise of Section 7 rights.

A hearing is set for May 2, 2012, absent a settlement of the case. While the Acting General Counsel's position on social media and employer policies regulating employee use of it has received the most attention, the review of policies is also focusing attention of employee handbooks in general. The focus on the "at will" disclaimer is a development to be followed carefully.

The Facebook access controversy comes to Michigan

noreply@blogger.com (John Holmquist) — Wed, 04 Apr 2012 19:14:00 +0000

A teacher's aide in Michigan was disciplined for refusing the request of the school district superintendent to show him her Facebook profile page at a meeting. She had posted a picture sent to her by a co-worker which showed the co-worker's pants down around her shoes; there was no picture of the person. The picture was posted on her own time and not while she was at work. The picture was not pornographic.

A parent who was a "Facebook friend" showed the picture to the superintendent who considered it unprofessional and offensive. The employee stated that she asked for a union representative to come to the meeting, but her request was denied. The employee received a letter from the district which stated that in the absence of her granting access to the Facebook page, the district "will assume the worst and act accordingly."

The teacher's aide is part of the bargaining unit which is covered by a collective bargaining agreement. There is language in the agreement which gives employees the right to have a union representative present at any meeting at which there exists a reasonable likelihood that the conference will result in the imposition of disciplinary against the employee. The agreement provides that employees will not be disciplined for arbitrary or capricious reasons or without due process.

The burden of establishing the appropriateness of discipline is on the employer. Here, there is off duty employee conduct which does not appear to rise to the level of offensive or otherwise cast the school or its employees in an unfavorable light. Was is juvenile? Sure, but is it offensive to the public or does it compromise the ability to teach? Doubtful. After all, access is limited to "friends."

The use of the phrase "assume the worst and act accordingly" is not helpful. It certainly conveys the impression of "guilty until proven innocent," and it will be a difficult to convince an arbitrator that it is not arbitrary or capricious. The inquiry will focus on the nature of the district's concern and whether the action taken is appropriate. Could the concern be alleviated by simply removing the picture? What was the basis of the request to see the Facebook profile page, especially if the profile is not available to the general public? It would be surprising to see an arbitrator uphold the discipline. The issue of failure to allow union representation will also cause some problems in arbitration since it impacts on the issue of "due process."

What is it about Facebook that triggers such strong reactions from some employers? Why is it that teachers are frequently the center of these stories? For employers, when an issue of conduct on Facebook arises, the first action should be to step back and find out what has happened. Only after some investigation is done, can an employer determine if it is impacted and if it should do, if anything. For teachers, consider a "Facebook vacation" during the school year, or at a minimum, follow a rule of no current or former parents of students or current or former students as friends. Also, post with the expectation that more than "friends" will see it.

Facebook passwords: The new unlawful surveillance of the work place

noreply@blogger.com (John Holmquist) — Fri, 30 Mar 2012 19:44:00 +0000

The subject of employer compelled disclosure of employee social media passwords has swept the blog and news worlds. Facebook has weighed in on the subject, and Senators Blumenthal and Schummer have asked the EEOC and the Department of Justice to investigate whether such demands violate current law. Jon Hyman at the Ohio Employer's Law Blog has an excellent analysis of the subject.

Given the attention that the NLRB and the Acting General Counsel have paid to social media in the work place and the rights of employees, I believe that the NLRB could use its case law on employer surveillance of employee protected, concerted activity to find a violation of § 8(a)(1) of the Act. The Board has held that it is an unfair labor practice for an employer to engage in surveillance of union activity or to create the impression among employees that their activities are under surveillance. Cases have arisen where supervisors tell employees that they know about meetings with the union and caution employees to be careful who they associate with.

In Magna Intl. Inc.,7-CA-43039 (3/9/01), a NLRB administrative law held that the comment of a supervisor who had visited a union web site to an employee that "he liked her picture" created an impression of surveillance and was an unfair labor practice. An employer who requires employees to provide their passwords is certainly conveying the impression that it will be monitoring those social media sites to see what the employees are posting. Such action also has a chilling effect on employees who want to use social media to engage in protected, concerted activity.

There are many reasons why an employer should not require employees to provide social media passwords. A potential unfair labor practice is just one more.

Wearin' of the Orange? You are fired!

noreply@blogger.com (John Holmquist) — Sat, 24 Mar 2012 17:45:00 +0000

Last Saturday was St. Patrick's Day, and many employees celebrated it on Friday by wearing green and getting together after work. A story reported that 14 employees of a Florida law firm were fired for wearing orange shirts. Traditionally, the color orange has been associated with the Protestant Irish, and wearing the color on St. Patrick's Day was considered to be an act of defiance.

According to four employees, employees wearing orange were called into a conference room; told by an executive that he understood that there was a protest involving orange; they were all wearing orange; and they were all fired. The executive then said that anyone wearing the color for an "innocent" reason should speak up. One employee explained that they wore the color because they would all go to happy hour together. A caucus was held, and the decision to terminate the employees was upheld.

Florida is an "at will" employment state. If someone in the firm felt that wearing orange close to St. Patrick's Day was an inappropriate, that is what "at will" means. What if the reason for the action were different; what if the employer thought that the employees were going to protest even though the employer was not sure of what? After all, one executive is quoted as saying wearing the color was part of protest.

Does the National Labor Labor Act have any application? Under the Bush Board, the answer would have been "no." What about the Obama Board? The answer could well be "yes." The employees were certainly engaged in concerted activity--wearing orange shirts. What about protected activity? Did the employer's concern make a difference?

The Obama Board has recognized the theory where employer conduct constitutes a "preemptive strike" to prevent future protected activity. In Parexel International, LLC., 356 NLRB No. 82 (2011), a three member panel adopted a theory finding a violation even where the employees had not engaged in protected activity. The panel stated that when an employer acts to prevent protected activity..nip it in the bud...that action interferes with and restrains Section 7 rights and is unlawful without more.

The executive at the law firm did mention the awareness of a protest, and it does not take much activity when related to work to involve terms and conditions of employment. If the action were taken out of the employer's concern that the employees were poised to protest or could do so in the future, would the firings be considered "preemptive" under Parexel?

Maybe the employees have no recourse, but under the expansive approach of the Obama Board, it is not as certain as one might think. Failure to consider the possible impact of the NLRA to at will employees is a mistake

The 2012 elections...considerations for employers

noreply@blogger.com (John Holmquist) — Wed, 21 Mar 2012 10:59:00 +0000

It seems as if the 2012 campaign will never end. Yet, mercifully, the process is heading towards nominations and the "real" campaign. Employers, regardless of the political affiliation of their management, need to contemplate how the 2012 election may impact their obligations under federal labor and employment law.

After the Obama victory and Democratic control of Congress, the conventional wisdom was that there would be an in depth overhaul of federal labor and employment law beginning with the enactment of the Employee Free Choice Act. "EFCA" was viewed as the mechanism to revitalize union organizing. The economy and healthcare reform became the focus of the legislative agenda, and EFCA never materialized. The mid term elections brought an end to the filibuster proof Senate, and the Republicans took control of the House of Representatives. Employers who assumed the midterm elections would prevent the more aggressive enforcement of federal labor and employment laws were wrong.

The NLRB, EEOC, and the Department of Labor have, with Obama appointees, aggressively pursued their respective agendas and will continue to do so. The EEOC has conducted hearings concerning discrimination based on criminal records, credit history, unemployed status, and pregnancy and family responsibilities. The DOL is pursuing safety in the workplace and misclassification of independent contractors. The NLRB has taken the first steps in revising the election procedure and is poised to begin the reversal of the Bush Board decisions which were favorable to employers. The NLRB has also emerged as the the principal enforcer of employee rights with respect to use of social media.

Employers--especially those concerned with union organizing--need to realize that tactics of the past in NLRB elections may no longer work. There simply may not be the time to convince employees in an election campaign that a union is not needed. Employers need to review the policies and actions that may make employees receptive to union organizing and to take steps to correct problem areas. Establishing effective and on going communication with employees is critical. Having supervisors who can communicate and who are fair is equally important.

Assuming the election will result in an employer friendly Congress and less aggressive federal agencies is a gamble that many employers will not want to take. Employers are in effect in a perpetual campaign to show their employees that a third party is not necessary to represent their interests and to speak for them. Understanding and correcting potential issues of discrimination and unequal treatment will enable an employer to better defend itself in any administrative proceeding.

The results of the 2012 elections could mean four more years of an Obama administration; a return to an employer friendly Republican White House and Congress; or a mixed political government as it is today. Employers would be better off preparing now for continued aggressive enforcement than relying on sweeping political change.

Workplace violence: learning from TSA

noreply@blogger.com (John Holmquist) — Wed, 07 Mar 2012 20:38:00 +0000

The report of the killing of the principal of a Jacksonville, Florida high school by a former teacher who was fired brings the subject of workplace violence back into the spotlight. The former teacher apparently carried an AK-47 into the school in a guitar case.

The approaches taken by employers addressing this subject range from detailed plans to no plans "because it can't happen here." Certainly, no employer wants to have such a tragedy occur, and no employer wants to be subjected to the scrutiny of hindsight with all the steps it could have taken to possibly avoid a tragedy but chose not to. Workplace violence is simply an issue that every employer must address.

While there is no fool proof predictor of what might lead someone to commit violence in the workplace, there are events which heighten the probability. Termination is one such event. The personality of the employee who was terminated, and the employee's reaction to the event are also certainly important considerations when assessing the risk. Communication among management of events which have the potential to lead to violence in addition to terminations--lay-offs; domestic issues of employees; and animosity among employees is critical.

An employee who is terminated should be told that he or she is no longer allowed on the premises. It should be done in a way not to incite the individual but rather as a reminder of the employer's policy concerning access by terminated employees. Steps should then be taken to alert employees in reception areas and entrances of the fact that the employee was terminated and is not allowed on the premises. A protocol should be established of what to do if the individual is seen on company property. Access through other entrances must be addressed such as areas where employees go in and out to the parking lot.

Based on recent airline travel, I realized that TSA operates on a very simple policy: "Trust no one; suspect everyone." I saw an elderly lady being told to get out of the wheelchair and to walk into the full body scanner. She did not seem to fit any profile of someone who could be dangerous, yet there she was, struggling to get into and out of the scanner. Perhaps employers need to adopt a similar policy with respect to workplace violence. It may seem extreme, but it is certainly more realistic than the "it can never happen here" approach.

Implicit bias? Iowa?

noreply@blogger.com (John Holmquist) — Mon, 27 Feb 2012 17:03:00 +0000

When you think of Iowa, you think of things like corn and caucuses, but not necessarily employment discrimination. There is a case, however, in state court that may give Iowa something else to be known for---implicit bias.

News reports concerning the case have brought attention to the theory of implicit bias which is being used to support the claims of discrimination of over 6,000 individuals against the state and its various agencies. The theory has gained a lot of attention and support from academicians. It is based on a test--Implicit Association Test--which supposedly has revealed that there is a preference for whites over blacks in up to 80 % of the test takers who did not consider themselves to be racist.

One unique aspect of the case is that the attorneys for the plaintiffs compiled a report concerning their investigation and conclusions. In discussing hidden bias in the report, the attorneys gave the following example: A supervisor who interviews an African American may make stereotyped or unfair assumptions about the individual's ability(at a subconsciousness or slightly conscious level.) The supervisor then allows the negative perceptions to influence or filter decision making during the interview or during the decision on whom to select. (Report, p. 18) The report goes on to state that this type of discrimination is a "formidable barrier" that all African Americans face in Iowa every day of their lives. (p. 18)

These are pretty strong words. A finding of discrimination can apparently be based upon this area of social science coupled with statistics to prove discrimination. Merriam-Webster defines subconscious as follows: existing in the mind but not immediately available to consciousness

What is the impact of the implicit bias theory of discrimination for employers? Are they responsible for the subconscious motivation of supervisors and other managers? Is there a duty to test decision makers to identify and to uncover bias that they may not even be aware of? Assume an employer has policies against discrimination; a procedure for employees to report conduct believed to be discriminatory; training of supervisors about recognizing and avoiding discrimination; and a review of the patterns in hiring and other personnel actions, is testing to explore the subconscious necessary? How would such testing be received by decision makers? Is this really indicative that more than one person has acted on the subconscious motivation? What about the actual manifestation of discrimination as encompassed in the disparate impact and disparate treatment theories?

Fortunately, the theory has not yet been accepted by any court. Nevertheless, it serves as a reminder to employers to continue to monitor their personnel actions and to give support and meaning to the nondiscrimination policies they have. A decision in the Iowa case recognizing the implicit bias theory would give new meaning to the line from the movie Field of Dreams...Is this heaven? No, its Iowa.

On the EEOC radar: Pregnancy and caregiver discrimination

noreply@blogger.com (John Holmquist) — Fri, 24 Feb 2012 22:11:00 +0000

On February 15, the EEOC held a hearing where speakers addressed the issues of pregnancy and caregiver discrimination. It was the Commission's first hearing of the year. EEOC Chair Berrien stated that discrimination based on pregnancy persists in the 21st century workplace and that the EEOC is committed to insure that applicants and employees are not subjected o unlawful discrimination based on pregnancy or because of their efforts to balance work and family responsibilities.

Regarding pregnancy discrimination, the EEOC's General Counsel stated that many employers do not have policies against pregnancy discrimination. and noted that there is more direct evidence in this area than any other area. It was noted that more pregnancy related conditions will be covered under the Americans with Disabilities Act Amendment Act, and more people will seek and expect accommodation. The EEOC is likely to challenge policies which exclude pregnant such as light duty under the disparate impact theory.

Caregiver discrimination is encompassed in the EEOC's concept of family responsibilities discrimination. The focus in caregiver discrimination is whether caregivers are treated differently than employees without children or ill family members. According to the EEOC, caregivers are comprised of pregnant women and men and women who care for spouses, children, parents, or other individuals or friends.

Caregiver discrimination cases can involve disparate treatment of caregivers based on gender, race or national origin under Title VII. Under the ADA, the EEOC views discrimination as encompassing situations where a worker is treated less favorably because of caregiver responsibilities for an individual with a disability

One panel at the hearing addressed the topic: "The Way Forward: Implications for the Future." Noticeably absent from the panel was any representative of employers to give that perspective or to discuss challenges faced by employers.

There is no federal statute that recognizes caregivers as a protected class. The EEOC hearing and the speakers' focus on the need for protection of caregivers raise the prospect that the EEOC will adopt broad interpretations of Title VII and the ADAAA, emphasizing disparate treatment, to expand protection for individuals in this group.

Employers need to be aware of the emphasis placed on caregiver and pregnancy discrimination. A review of policies and procedures is a must. If there is no inclusion of pregnancy discrimination under prohibited practices, it should be added. Policies which may be scrutinized include light duty assignment, attendance, personal time off, and other policies that impact the circumstances where an employee may request time off during the day for purposes of caregiving. Employers need to see if they apply these policies equally to all employees, or if they make exceptions. If exceptions are made, employers need to determine why and the basis for the exceptions.

Whether or not the EEOC's expansive interpretation of caregiver protection will ultimately be adopted by courts remains an open question. Nevertheless, employers need to be aware that these two areas are now on the EEOC's radar. Between the FMLA obligations and the EEOC's expansive interpretation of its concept of family responsibilities discrimination, employers must be aware of this evolving area. Consistency in the application of policies will remain important.

Welcome to the Carnival of Employment Blogs: Motown Edition

noreply@blogger.com (John Holmquist) — Wed, 15 Feb 2012 01:05:00 +0000

Motown; say the word and try not to have a song come to mind. For over a decade, Motown embodied a spirit which lifted a city. This month's edition is inspired by and dedicated to the Motown legacy.

Ball of Confusion, The Temptations

Jon Hyman of the Ohio Employer's Blog tries to help unravel the NLRB's latest venture into the realm of social media.

Come See about Me, The Supremes

Dawn Lomar at Customer Expressions examines criminal background checks and need for employers to make sure that they are comprehensive and nondiscriminatory.

You Keep me Hangin' On, The Supremes

Heather Bussing from HR Examiner explores the issue of disparate impact and the use of cell phones in the hiring process.

Motown consisted of an original house where a photography studio was transformed into a recording studio. Ultimately, seven neighboring houses were purchased and housed the company's various departments including its "charm school" which trained the singers how to dance and to perform.

Get Ready, The Temptations

Jewell Lim Esposito at Employee Benefits Unplugged alerts employers about the IRS pilot project to target company's with more than 2500 employees for the audit of their retirement plans.

I Heard it Through the Grapevine, Marvin Gaye

Dan Schwartz of the Connecticut Employment Law Blog examines a recent federal court decision involving First Amendment rights in the workplace.

Reach Out, I'll be There, The Four Tops

Jessica Miller-Merrell at Blogging4Jobs discusses the challenges that HR professionals face as they perform their jobs.

110 Top Ten hits were recorded in Studio A in the 1960's. The Marvelettes had the first #1 hit for Motown with "Please Mister Postman."

Knocks Me off My Feet, Stevie Wonder

Randy Enochs at the Milwaukee Employment Lawyer Blog examines a recent decision addressing whether a migraine headache is considered a disability under the ADA.

Mercy, Mercy Me, Marvin Gaye

Ari Rosenstein at CPEhr Small Biz HR Blog addresses how employers avoid the surge of discrimination suits.

Too Busy Thinking About My Baby, Marvin Gaye

Bob Fitzpatrick at Fitzpatrick on Employment Law examines a decision from the 11th Circuit concerning whether FMLA protection applies to a pre-eligibility request for post-eligibility maternity leave.

The Funk Brothers--Motown's studio musicians--played on more #1 records than the Beatles, the Rolling Stones, Elvis Presley, and the Beach Boys combined. They were awarded a Lifetime Achievement Grammy in 2004. James Jamerson was inducted into the Rock and Roll Hall of Fame in 2000; he is considered to be the greatest bass player. Benny Benjamin(drummer) was inducted in 2003.

Treat Her Like a Lady, The Temptations

Robin Shea from Employment and Labor Insider presents a bouquet of Valentine's Day sexual harassment cases.

Nothing's Too Good for My Baby, Stevie Wonder

Donna Ballman at Screw You Guys, I'm Going Home attempts to understand a federal judge's explanation of how lactation and nursing cannot be subjects of sex discrimination.

I'll Be Doggone, Marvin Gaye

Phil Miles from Lawffice Space examines unpaid interns and the scrutiny which is occurring under state and federal wage and hour laws.

Don't You Worry "Bout a Thing, Stevie Wonder

Eric Meyer of The Employer Handbook reviews the so-called privacy of employee emails.

Motown truly was the "Sound of Young America." Motown had a number of different labels including Motown, Tamla, Gordy, Soul, and Rare Earth. The company left Detroit in 1972 for L.A. The company regained the heights it had while in Detroit.

That's it for the February Carnival of Employment Law Blogs. It's time to get back to work; halftime's over.

Limitations period in employment contracts in Michigan

noreply@blogger.com (John Holmquist) — Sun, 05 Feb 2012 12:55:00 +0000

In an unpublished decision, a panel of the Michigan Court of Appeals has upheld the validity of a six months limitations period in an employment contract. Donald v. Wolverine Human Services, No. 301184, 12/27/11.

The clause provided: Employee agrees that no action, including claims of discrimination, will be brought more than 180 days after it arises, and that any longer statutes of limitation are waived.

The employee argued that the provision violated federal law and specifically argued that it violated her rights under 42 U.S.C. section 1981. The panel disagreed and noted that the statute said nothing about prohibiting a shortened period of limitations within which to sue. Since the provision is applicable to all persons who sign the employment contract without reference to race, it is not discriminatory.

The courts in Michigan have consistently upheld the employer's inclusion of a limitations period in contracts shorter than that established by statutes covering state law discrimination and employment claims. In Clark v. Daimler Chrysler, 268 Mich App 138 (Mich App 2005), the court held a six month limitations period is neither inherently unreasonable nor so extreme as to shock the conscience. As a result of this line of decisions, many employers are adopting the six month limitations period.

A word of caution: the EEOC does not share the Michigan courts acceptance of the shorten limitations period as it may pertain to Title VII claims. As the EEOC has become more aggressive in its enforcement of the various federal statutes, employers should expect a challenge to any attempt to bar a Title VII actions on the basis of shortened limitations period.

The birth of a retaliation case: oops, we didn't really mean that...

noreply@blogger.com (John Holmquist) — Sat, 04 Feb 2012 15:33:00 +0000

ABC News has reported the interesting case of an employee who asked to have time off because of a pregnancy and was told that since she did not have leave available under the FMLA, she would be treated as a voluntary resignation when she did not report to work. The employee recorded the conversation without the company's knowledge. Her attorney contacted the company which changed its position and granted her leave to have the baby. The women has filed charges with the EEOC and the Connecticut Commission on Human Rights.

So, the woman had her baby in January and presumably is back to work. Now from the company's perspective, it is looking at a very delicate situation. There are not too many employers who would be happy with employees who secretly tape conversations. Absent a policy/rule prohibiting secret recordings, what recourse does an employer have? States are not uniform in the approach to this issue: some states require the two parties to the conversation to consent while others require consent from only one party. Connecticut is a state that requires consent two parties.

Do they take action based on the recording in the absence of a policy prohibiting it? Is this an invitation to a retaliation case? What is the realistic prospect for everyone to simply start over and to be "friends?"

This facts highlight why there has been such a dramatic increase of retaliation charges and cases. An employee has filed a charge, and an employer is in a difficult legal position. While filing a charge does not give an employee immunity from having to perform or unlimited job security , it often has that effect. It would not be surprising to hear that the employee has left the company after settling her charges.

To do for Monday: Check FMLA policy

noreply@blogger.com (John Holmquist) — Mon, 30 Jan 2012 14:09:00 +0000

Under the FMLA, there are four methods which an employer can use to determine whether an employee is eligible for 12 weeks leave in a 12 month period. Once the determination is made, it is critical that employees be informed of the chosen method. In Thom v. American Standard, the 6th Circuit Court of Appeals awarded liquidated damages in a case involving the discharge of an employee for unexcused absences where the method of determination was not communicated to the employee.

At issue was whether the company used a "rolling" method or a calendar method. The court found that at no time did the company advise the employee during the FMLA process that his leave time would be governed by the rolling method. The court noted that the first time Thom had actual notice of the use by the company of the "rolling" method was when the company's lawyers raised it as a defense to his lawsuit.

Thom serves as reminder that an employer must be able to document the communication of it choice of method to determine eligibility to its employees for FMLA leave. Certainly, any employee discussing use of FMLA leave should be notified in writing of the method, and the employer should obtain a written acknowledgment from the employee of notification. Ben Franklin was right--a ounce of prevention is worth a pound of cure.

Face off in 2012: regulation of off duty conduct and wellness

noreply@blogger.com (John Holmquist) — Sun, 22 Jan 2012 18:32:00 +0000

A recent article in the Seattle Times discussed how employers are testing new applicants for nicotine use. The ban is a continuation of the ongoing attempts that some employers have to prohibit smoking or smokeless tobacco use at any time, including off duty time. Health care and insurance companies are stepping up efforts to have current employees quit.

Roughly 30 states have some form of legislation protecting lawful off duty conduct, although there is no uniform coverage. Michigan does not have a law protecting lawful off duty conduct although there have been attempts in light of one employer's ban on smoking and termination of employees who refuse to quit.

As employers and employees struggle with rising health costs, similar efforts in other areas are likely to be explored. Can an employer discourage fast food eating? No bacon double cheeseburgers? What about alcohol? What will be the event that triggers serious discussion of protecting lawful off duty conduct in Michigan? If bad facts make bad law, will a sympathetic employee who is fired trigger more serious discussion in Michigan? There is no clear answer, but this is an area for employers to watch.

Carnival of employment law blogs--January, 2012

noreply@blogger.com (John Holmquist) — Sat, 21 Jan 2012 13:21:00 +0000

Be sure to check out this month's carnival!! http://www.employmentandlaborinsider.com/discrimination/employment-law-blog-carnival-chinese-new-year-edition/

Email and overtime: the Brazilian connection

noreply@blogger.com (John Holmquist) — Mon, 16 Jan 2012 13:08:00 +0000

Saturday can be a very slow news day locally so a teaser for the evening news about a new law that requires the payment of overtime to employees who use it outside of the work place caught my attention. I was wondering how I could have missed something on that topic. Of course, it pulled me in, and I watched the newscast. As it turns out, the story was about a new law in Brazil ( a fitting topic for a slow news day.)

Over the years, I have found that stories like that get the viewer thinking about their individual situations. What about me? Am I entitled to overtime here? The story highlights an issue for employers: what is or is not required of employees with respect to activities like checking email after hours or working at lunch.

There is a real risk for employers when employees decide to work on their own schedule. The Department of Labor regulations refer to such work as work not requested "but suffered or permitted" and classifies such work as work time. It is not enough for an employer to have a rule regulating or prohibiting such work. The regulations state that having a rule is not enough; an employer must enforce it.

Enforcing such a rule is easier said than done; especially when it comes to personal email and smart devices. Use of company issued phones or smart devices is easier to monitor since the company will get the bills. With the widespread use of personal equipment, monitoring is more difficult.

First of all, an employer needs to have a policy covering personal cell or smart phone used for company business. Most employers recognize that employees are entitled to reimbursement for such use provided the copies of the bills are submitted with the business numbers highlighted. Employees should be advised that the employer will do audits on call and an abuse will be considered dishonesty. As is true with similar policies, the employer should have the employees sign an acknowledgement of receipt and understanding of the policy.

Secondly, the employer needs to follow through with its monitoring and enforcement. Failure to do so will cause the employer its own kind of "suffering" with the Department of Labor.

Individual arbitration agreements and the NLRB: There will be class actions

noreply@blogger.com (John Holmquist) — Mon, 09 Jan 2012 18:11:00 +0000

If the Obama Board were to run an advertising campaign concerning its work, it might well use the slogan Not just for unions anymore! In its recent decision in D. R. Horton, Inc., a two member panel found that the employer could not force its employees to waive their NLRA rights to collectively pursue litigation of employment claims in all forums, arbitral and judicial. The panel stated that as long as the employer leaves open a judicial forum, it can insist that arbitral proceedings be conducted on an individual basis. The panel stated nothing in its decision was obligating employers to permit or to participate in class -wide or collective arbitration proceedings. The panel also upheld the judge's finding that the procedure would causes employees to believe that they could not file charges with the Board and therefore was a violation of the Act.

The impact on employers? Choose the forum that you want your employees to use when they process class or collective actions against you. The focus of the decision is on employment claims, i.e wage/hour, discrimination, and anything that can be done by employees, which is far broader than day to day work place disputes. The panel's holding is a cause for celebration with plaintiff's attorneys.

Activity which is covered under the National Labor Relations Act is activity which is both concerted and protected. The decision here finds concerted activity by relying upon the prior decision in Meyer Industries, 281 NLRB 882(1986). The panel noted that concerted activity occurs when a single employee seeks to initiate or to prepare for group action. As a result, an individual who files a collective or class action regarding wages, hours, or working conditions is engaged in protected conduct.

As it now stands, and it is almost certain the panel's decision will be challenged, employers cannot totally foreclose their employees from pursuing class or collective actions involving employment law. The Obama Board has continued its broadening of the meaning of protected, concerted activity in the non union setting. The decision is likely only the beginning of a much more expansive reading of the Act's coverage which will occur under the newly constituted Board.

The NLRB recess appointments--politics as usual

noreply@blogger.com (John Holmquist) — Thu, 05 Jan 2012 13:55:00 +0000

The White House announced yesterday that President Obama had appointed three individuals to the vacant positions at the National Labor Relations Board. The appointments bring the Board to a full complement of five members. Of course, the issue of whether the Senate was in recess to allow the appointments is far from a settled issue and will likely result in another round of litigation with the NLRB.

The anticipated mass reversal of Bush Board precedent expected by the administration's union supporters has not yet occurred. The Democratic majority of the three member Board did approve a number of amendments to the election process which will speed up the election process and limit employer challenges during the election process until after the voting has occurred. Employers had expected that the shift in Board case law would occur early in the Obama administration. Indeed, the US Chamber of Commerce had published a white paper detailing the anticipated changes. The degree to which the trickle of cases becomes a flood before the election bears watching.

Once again the battle lines are drawn between the Obama Board and acting General Counsel with its union support and employers. The intense debate over the General Counsel's action in the Boeing unfair labor practice litigation is likely to be repeated with these appointments.

When the National Labor Relations Act was enacted in the '30s, it was not intended to be balanced. Congress perceived an imbalance and abuses that needed to be corrected with protections for those attempting to form and to join unions. When the statute was amended in the '40s after the war, Congress saw a need to bring the statute back into somewhat more balance. The statute has not been amended to reflect changes in the last sixty plus years. The changes have come as a result of philosophy of the party controlling the White House. Democratic presidents tend to favor unions; Republican presidents tend to back employers. Their Boards reflect the preference.

Employers, especially smaller employers, want to know what the rules are; what can they do and what can't they do. There is a frustration in seeing that what was allowed when done suddenly becomes illegal after a presidential election. In the union election setting, the union can control when to file a petition for representation. It does so when it views the timing as most advantageous to its position. Once a petition is filed, the union can do the things that an employer can't--promise changes in wages, benefits, and working conditions. Employers want to know that their statutory right to free speech and the expression of opinions will be honored.

The recess appointments and the anticipated changes to come are a reminder to employers that how they treat their employees and whether they effectively communicate with employees about matters which concern and impact them is a daily exercise. Successfully done, employers will prepared when the union representation petition comes. After all, in most instances, unions don't organize employers; employers do.

Going on offense--responding to a potential ADA suit

noreply@blogger.com (John Holmquist) — Thu, 29 Dec 2011 13:54:00 +0000

Great Expressions Dental Center is headquartered in Michigan and operates 150 dental centers in seven states. James White was employed at one of the centers and was terminated by the company. White has HIV and claims he was terminated because of his condition; the company states that it was performance related.

White filed a charge with the EEOC and alleged that employees were instructed to sanitize things he had touched and that he was subjected to unexpected changes in scheduling. The company's reply is that his termination was the result of a failure to address excessive absences and tardiness. The EEOC conducted a three year investigation ; proposed a $185,000 settlement; and issued a right to sue letter. White has an attorney but has not yet filed suit. The EEOC has not filed suit.

So far the story is familiar to employers who have faced an EEOC investigation. Enter the impact of the internet. White's story was picked up and, excuse the cliche, has gone viral. A student started a petition and over 35,000 people signed it; the petition called for the resignation of the company's regional director. The criticism of the company has been intense in on line coverage by groups involved with HIV issues. The petition was removed after the company threatened to file suit.

In response to the reaction created by the petition and the coverage of the story, the company issued a press release denying the allegations and announcing that in response to the public and false allegations which had been made in the online campaign, it was filing a lawsuit to vindicate its position.

While the strategy is not common, it is not unprecedented. An excellent overview of the legal issues is found in an article in the New York Law Journal by Ronald Green. Given the statutory scheme of the ADA and the specific means to enforce the Act, it is hard to imagine that the district courts are going to be overly receptive to what amounts to a preemptive strike under the Declaratory Judgment Act to allow employers to be the first to the court house. The legal significance of a determination of probable cause by the EEOC is not the same as the finding of a violation after litigation in federal court. The impact of an EEOC determination letter is often challenged in subsequent litigation and is not binding on a jury or a judge. A party which receives a right to sue letter may, for whatever reason, choose not to sue.

Is this case the beginning of a trend for employers or a response limited to a case where the employer has been the subject of an internet campaign based on one side of the story? Assuming the federal courts are receptive, such a tactic is likely the exception rather than the rule.

o

Tempest in a flu shot: sex discrimination and religious preference

noreply@blogger.com (John Holmquist) — Mon, 19 Dec 2011 01:34:00 +0000

John Benitez, Jr. was employed as a nurse by the Dearborn Health Department. Dearborn is reported to a Muslim population of 30%. Benitez was instructed by his female supervisor who was also Muslim that he was not to treat female patients who were Islamic and who head scarves. He was directed to transfer those patients to the female supervisor.

A doctor saw him sending a female who wanted a flu shot to his supervisor. When asked why he was doing this, Benitez explained that those were his directions. The doctor said that this was procedure was burdensome and that he should treat anyone who came into the clinic. He complied with the directions but was subsequently fired. According to the Complaint, he was told the clinic's conservative male clientele did not want a male treating female patients. This view was adopted, and Benitez was terminated.

The case raises the issue of customer preference, based in part on religious beliefs, as a defense under Title VII of the Civil Rights Act of 1964. Under the statute, an employer may have a defense to intentional discrimination where the decision is based on otherwise prohibited discrimination which is reasonably necessary to the normal operation of a business. This defense is known as the bona fide occupational qualification defense("BFOQ). While customer preference is not a per se a BFOQ, courts have examined the defense in the context of privacy, especially in nursing home and corrections context.

The Sixth Circuit considered the issue in Everson v. Michigan Dep't of Corrections, 391 F. 3d 737(2002).
The court stated, with respect to the test to be applied, that particular circumstances of the individual employer must be examined, and that a court must not simply rely on generalizations about an industry or a group of employers. Appraisals need not be based on objective, empirical evidence, and common sense and deference to experts in the field may be used to establish a BFOQ. (391 F. 3d at 1560.)

The EEOC addressed the issue in an informal opinion letter dealing with pre school child care and educational services. The letter stated: Even if client or customer privacy concerns are implicated, courts have examined whether the employer could "reasonably arrange job responsibilities in a way to minimize a clash between the privacy interests of [its customers or clients] and the non-discriminatory alternatives of Title VII." Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1086 (8^th Cir.), cert. denied, 446 U.S. 966 (1980).

In this case, was it possible to arrange job responsibilities in a way consistent with the EEOC letter? The clinic could have used a procedure where a female who was uncomfortable being treated by a male would be transferred to the female supervisor for treatment upon request. Terminating Benitez, as alleged in the Complaint, based upon customer preference would not be saved by a BFOQ of needing only women to treat women.

In areas such as Dearborn, where there is the every day mixture of people with different religious beliefs, employers must be alert to situations where personnel decisions may involve customer preference based on religious beliefs or practices. Employers are going to be confronted with more sensitive issues. Decisions based on customer preference which are discriminatory must be considered carefully before any implementation with an examination of options to avoid discrimination. Establishing a BFOQ is difficult.