Author: Jon Hyman

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NLRB Judge Clips Wings of Hooters’ Workplace Policies

In Hooters of Ontario Mills [pdf], an National Labor Relations Board Administrative Law Judge found that a California franchisee of Hooters unlawfully fired a waitress for complaining about a bikini contest that she perceived as fixed. In the same decision, the ALJ also concluded that the restaurant maintained numerous illegal polices in its employee handbook.

Alexis Hanson, a Hooter Girl in an Ontario, California, outpost of the beer-and-wings establishment, complained to management that she believed that bar’s annual bikini contest was rigged. After the contest, she was terminated for “cursing at” the winner and the store’s Marketing Director. When she protested that she hadn’t cursed at anyone, the manager changed her tune and told Hanson, “Okay. Well, then you are being terminated for your negative social media posts.”

The ALJ concluded that Hanson’s discharge was unlawfully motivated by her protected concerted activity (i.e., her complaints to the manager about the bikini contest). The ALJ was persuaded by the fact that the employer had failed to conduct an investigation before firing Hanson, and also by its shifting reasons for her termination. 

The ALJ also concluded that a variety of policies in the restaurant’s employee handbook were overly broad violations of employees’ rights to engage in protected concerted activity:
  • NEVER discuss tips with other employees or guests. Employees who do so are subject to discipline up to and including termination.
  • Insubordination to a manager or lack of respect and cooperation with fellow employees or guests may result in discipline up to and including termination.
  • Disrespect to our guests including discussing tips, profanity or negative comments or actions may result in discipline up to and including termination.
  • The unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party may result in discipline up to and including termination. This includes, but is not limited to, recipes, policies, procedures, financial information, manuals or any other information in part or in whole as contained in any Company records.
  • Be respectful to the Company, other employees, customers, partners, and competitors. Refrain from posting offensive language or pictures that can be viewed by coworkers and clients. Refrain from posting negative comments about Hooters or coworkers. In all cases, NEVER publish any information regarding a coworker or customer.
  • Any other action or activity that the Company reasonably believes represents a threat to the smooth operation, goodwill or profitability of its business may result in discipline up to and including termination.
What are the takeaways from this case?
  1. These employees were non-union. This case serves as a reminder that the NLRA’s protected-concerted-activity rules apply to union and non-union shops.
  2. It’s debatable whether complaints about a workplace bikini contest constitute protected concerted activity. In this case, however, the ALJ appeared to be more persuaded by what the manager did not do in response to the complaints, as opposed to what the employee complained about. The manager did not investigate, and did not maintain a consistent reason for the termination. In other words, the reasons given for the terminated seemed to be a pretext to cover up something else — retaliation for Hanson’s protected concerted activity. The moral of this story? No matter the situation, thorough investigations and maintaining a consistent story will save your bacon in many workplace lawsuits.
  3. As often happens in theses cases, the termination served as an entre for the NLRB to review (and overturn) workplace policies as overly broad. If you don’t want the NLRB to see your policies, don’t fire employees for protected concerted activity. Most of these cases get to the Board because someone was fired, not because someone just decided, out of the blue, to challenge a handbook.
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Prejudice vs. Racism: Please Don’t Confuse the Two

Last week, Inc. interviewed the billionaire, entrepreneur owner of the Dallas Mavericks, Mark Cuban. In light of Donald Sterling, racism was one of the topics covered. Cuban’s candid and honest response has sparked a wave of controversy:

If I see a black kid in a hoodie and it’s late at night, I’m walking to the other side of the street. And if on that side of the street, there’s a guy that has tattoos all over his face — white guy, bald head, tattoos everywhere — I’m walking back to the other side of the street. 

While we all have our prejudices and bigotries, we have to learn that it’s an issue that we have to control, that it’s part of my responsibility as an entrepreneur to try to solve it, not just to kick the problem down the road.…

Cuban has been wrongly crucified for his candor. Prejudice is human nature; it’s not bigotry or racism. We all hold prejudices. Bigotry and racism, however, imply intentional hatred. Crossing the street late at night because you see someone in a hoodie coming towards you does not mean you hate that person because you assume he’s black. Instead, it means you’ve been influenced by what you’ve seen, heard, or experienced, and that influence is causing a reaction.

Here’s the difference, from a Title VII perspective. If you learn of race-based comments or action in the workplace, you have an obligation to investigate and take appropriate corrective action reasonably to ensure that it doesn’t happen again. If you are dealing with racism, no corrective action will halt the behavior, and the only likely response is termination. If, however, you are dealing with unconscious prejudices, you can use the incident as a learning tool to open a dialogue with your employees about race.

In managing employees, it is unrealistic to expect them to hold no prejudices. Recognizing this fact is the first step to managing race in our workplaces.

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Should you Check Your Employee’s Social Media Accounts?

Monday’s Wall Street Journal had a compelling counterpoint about whether employers should be checking their employees’ social media accounts. Nancy Flynn, the founder and executive director of the ePolicy Institute, presented the pro, while Lewis Maltby, the president of the National Workrights Institute, presented the con.

Flynn argued that keeping an eye on employees’ online activities helps companies help themselves.

Management has a right and responsibility to monitor how employees are using social media at all times. If companies don’t pay attention, they may end up facing any number of serious problems. It’s all too easy for disgruntled or tone-deaf employees to go onto social media and criticize customers, harass subordinates and otherwise misbehave. Sometimes that can bring workplace tensions and complaints, sometimes it can damage a company’s reputation in the marketplace, and sometimes it can lead all the way to lawsuits or regulatory action.

Maltby argued that examining employees’ online activities often results in an unreasonable fishing expedition.

Yes, employers have a legal right to monitor employees’ conduct on their work computers. But the only time employers have a legal duty to monitor employee communications is when the employer has reason to believe that the employee is engaged in illegal conduct.… The fact is, the vast majority of what employees do on the Internet has nothing to do with work, takes place during their private lives and is done on their personal computers. Once again, employers should get involved with employees’ private lives only when there is reason to be concerned.

Who’s right? Do employers have a right to monitor employees’ social media accounts, or is this an invasion of their personal lives? I believe that there is nothing private about social media. Even outside of work, what employees say on their not-so-private social pages can impact their employer. Do they post racist, sexist, or other inappropriate statements? Do they divulge confidential information about their workplace? Are they engaging in conduct that would.make them unfit for employment (like illegal drug use)? 

The reality is that employees who believe that what they say on their personal social media sites, away from the workplace, is off-limits to their employer, operate under a grand misconception. Like it or not, we live in a world where, thanks in large part to social media, the line between the personal sphere and the work sphere no long exists (or if it exists it’s really blurred). Employees that fail to recognize this fact take a huge risk.

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EEOC Continues Fight Against Severance Agreements and Employers Fight Back


Earlier this year, I reported on a groundbreaking lawsuit the Equal Employment Opportunity Commission filed against CVS challenging as retaliatory some garden-variety provisions in employee separation agreements (here and here). 

Earlier this week, the EEOC reported that it has filed a similar lawsuit in Colorado, against CollegeAmerica. From the EEOC’s news release:

Debbi D. Potts, the campus director of CollegeAmerica's Cheyenne, Wyo., campus, resigned in July 2012 and signed a separation agreement in September 2012 that conditioned the receipt of separation benefits on, among other things, her promise not to file any complaint or grievance with any government agency or to disparage CollegeAmerica. These provisions would prevent Potts from reporting any alleged employment discrimination to the EEOC or filing a discrimination charge.…

The EEOC also claims that provisions which similarly chill employees’ rights to file charges and cooperate with the EEOC exist in CollegeAmerica’s form separation and release agreements, routinely used with its employees.…

“Rights granted to employees under federal law, like the right to file charges of discrimination and participate in EEOC investigations into alleged discrimination in the workplace, cannot be given up in agreements between private parties,” said Mary Jo O’Neill, Regional Attorney for the EEOC’s Phoenix District Office…. “Otherwise, employers could easily do an end run around the law, employees would not be free to complain about discrimination, and the EEOC would never learn about violations of the law or have an opportunity to enforce it.”

Meanwhile, CVS is fighting back against the EEOC in its lawsuit. CVS has asked the district court to dismiss the complaint in its entirety, cap arguing that the mere inclusion of terms in a severance agreement does not violate Title VII. Business groups are also weighing in, the court has granted permission to the Retail Litigation Center to file a brief in support of CVS’s motion to dismiss. 

I continue to believe that this issue is the most important issue to employers that the EEOC is currently litigating. 

It is becoming clear that the CVS lawsuit was not an anomaly, and that challenging these types of provisions in severance agreements is high on the EEOC’s radar. For now, however, I think employers should take a wait-and-see approach. This issue is too important for employers to knee-jerk pull these key clauses from their agreements.

For now, what I wrote in February (which includes a draft carve-out) still holds true:

Don’t shred your settlement and severance agreements just yet.… Modify your agreements to bolster and clarify the protected-activity carve-out.… Given the EEOC’s position, prudence dictates the breadth of this carve-out, which is more expansive than what I traditionally use. The alternative, however, is to omit these provisions all together, and draft agreements that looks like a Swiss-cheese of risk.

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6th Circuit Recognizes Telecommuting as an ADA Reasonable Accommodation

In Core v. Champaign County Board of County Commissioners, the U.S. District Court for the Southern District of Ohio opined that telecommuting (i.e., work-from-home) might be an Americans with Disabilities Act reasonable accommodation under the right circumstances, but that case did not present those circumstances. The Core court specifically noted that the 6th Circuit does not “allow disabled workers to work at home, where their productivity inevitably would be greatly reduced,” except “in the unusual case where an employee can effectively perform all work-related duties at home.”

Yesterday, in Equal Employment Opportunity Commission v. Ford Motor Co., the 6th Circuit, for the first time, recognized that modern technology is making telecommuting a realistic reasonable accommodation option. The case involved an employee with Irritable Bowel Syndrome who could not drive to work or leave her desk without soiling herself. Ford declined her telecommuting request because it believed in its business judgment that her position — a buyer who acted as the intermediary between steel suppliers and stamping plants — required face-to-face interaction.

The 6th Circuit disagreed, in large part because Ford could not show that physical attendance at the place of employment was an essential function of her job.

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.…

[W]e are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs.… We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” … [C]ommunications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Like it or not, technology is changing our workplace by helping to evaporate walls. While telecommuting as a reasonable accommodation remains the exception, the line that separates exception from rule is shifting as technology makes work-at-home arrangements more feasible. If you want to be able to defend a workplace rule that employees work from work, and not from home, consider the following three-steps:

  • Prepare job descriptions that detail the need for time spent in the office. Distinguish one’s physical presence in the office against one’s working hours.
  • Document the cost of establishing and monitoring an effective telecommuting program.
  • If a disabled employee requests telecommuting as an accommodation, engage in a dialogue with that employee to agree upon the accommodation with which both sides can live (whether it’s telecommuting or something else).
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When an Employee Can’t Return to Work After an FMLA Leave

The plaintiff in Demyanovich v. Cadon Plating & Coatings (6th Cir. Mar. 28, 2014) suffered from congestive heart failure. He returned from his latest Family and Medical Leave Act leave in 2009 with a no-overtime medical restriction. The employer, however, ignored the restriction, kept assigning overtime hours, and denied an early-2010 FMLA request. Demyanovich’s doctor advised him to quit his job and apply for social security benefits. Shortly thereafter, the company terminated him for excessive absenteeism.

In the subsequent FMLA lawsuit, the employer claimed that Demyanovich could not prove his FMLA claim because he could not have returned to his job at the end of the 2010 FMLA leave, had it been granted. The court, however, disagreed:

Although there is ample evidence that Demyanovich might have had difficulty returning to work within twelve weeks of his February 23 request for FMLA leave, it is not indisputable that he would have been unable to do so. Dr. Mussani, Demyanovich’s primary physician, “advised [Demyanovich] to quit work” and seek Social Security benefits, but he did not draft any documentation stating that Demyanovich was categorically unable to continue working. We may not draw the inference, adverse to Demyanovich, that because Dr. Mussani had always cleared Demyanovich to return to work after past examinations, his advice to quit on this occasion demonstrates that Demyanovich was no longer capable of working.

According to the FMLA, employees who, at the end of the 12-week leave period, remain “unable to perform an essential function of the position because of a physical or mental condition … [have] no right to restoration to another position under the FMLA.” Thus, if Demyanovich truly could not have returned to work at the end of the FMLA leave, then he would have a claim. In this case, the court concluded that the employer could not measure that inability prospectively, since Demyanovich presented no medical paperwork to that end.

What are the takeaway from this case?

  1. When dealing with medical issues under the FMLA, get it in writing. In this case, it appears that the employer was attempting to justify its decision based on information in learned after the fact — that Demyanovich’s doctor recommend that he quit and seek social security benefits based on a total inability to work. Had the company learned this information at the time of the termination from medical information provided by Demyanovich at that time, this case likely would have turned out differently.
  2. Don’t forget about the Americans with Disabilities Act. Just because an employee cannot return to work at the end of an exhausted FMLA leave does not mean you can always terminate the employee. Instead, you have an obligation under the ADA to explore, through the interactive process, reasonable accommodations such as temporary light duty or an unpaid leave of absence. Even if you are on solid legal ground to terminate under the FMLA, ignoring your obligations under the ADA will still buy you a lawsuit.
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It’s Illegal to Ask Employees to Give Up Overtime Payments

If a non-exempt employee works more than 40 hours in a work week that employee is entitled to overtime at the required rate of 1.5 times the regular rate of pay. What if, however, an employee says they’d rather forego the overtime premium than not work the extra hours at all? A Cleveland security company learned the hard way that employees cannot volunteer to work overtime at less than the required premium rate.

According to Cleveland.com, Citywide Protection Services has agreed to pay $14,760 in back overtime pay to 30 security guards following a Labor Department investigation. The comapny’s excuse for not paying overtime? The employees asked.

George Lewandowski, Citywide Protection Services’ president, said he was being characterized as a bad guy when all he had tried to do was help out his employees. Lewandowski said workers kept demanding overtime hours because they needed money.…

“I have a lot of employees who don’t make a lot of money, and they have a lot of kids, so they ask for a lot of extra hours,” he said. “I told them that I really can’t afford to pay all those extra hours, but a lot of them kept begging for hours, just begging for hours.

“I said: ‘I can’t pay the overtime. I’ll let you work at straight time,’” Lewandowski said. “They were aware that I could not pay the overtime—no matter what!”

It does not matter whether your motives are altruistic or malicious when avoiding overtime payments. If a non-exempt employee works more than 40 hours in a week, you must pay them overtime. Period. No exceptions. Employees cannot ask to work the extra hours at their regular rate. They cannot choose between receiving less than the full overtime premium and no overtime hours at all. Otherwise, you might find yourself on the receiving end of a DOL investigation or collective lawsuit, neither of which is an option you want for your business.

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Please, Please, Please Be Careful What you Email

Darren Wyss claims that his former employer, Compact Industries, demoted him on the basis of his gender and replaced him with a female. Wyss’s immediate supervisor was Tracey Brown, one of the company’s owners, and the sister of Michael Brown, another owner. After Wyss’s demotion, Michael emailed his sister, “You demoted Darren without telling me? … Darren is a good worker, too bad he’s male.”

 
Based on that email, the court — in Wyss v. Compact Indus. (S.D. Ohio 3/12/14) — had little trouble denying the company’s motion to dismiss the sex discrimination lawsuit.

It is reasonable to infer that Michael Brown knew of his sister’s motive for demoting Wyss and was referring to that motive in this email. This plausibly suggests that the decision to demote Wyss, who was otherwise a “good worker,” was motivated by Tracey’s intent to discriminate against men. 

Nothing good comes from putting statements like “too bad he’s male” in emails, or text messages, or voice mails, or any other form of communication. Those words should never leave your lips, let alone flow forth from your fingers in anything typed. Michael Brown may have a logical, non-discriminatory explanation for his statement … or at least he better before he gives his deposition. Even with an explanation, however, his misstep makes his company’s case that much more difficult. Do your damndest to avoid the same miscue.
 
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Nondisparaging Remarks

I'm a litigator. I prepare cases for trial, and, when all else fails, I try cases for businesses. Most people would think that I do my job best when a jury returns a verdict in favor of one of my clients. In that instance, it likely means I prepared the most, or argued the best, or thought the quickest on my feet in front of the judge or jury.

It does not, however, mean that I performed my job the best I can. In reality, I perform my job the best when I keep my clients outof court.

“That’s sacrilege,” you scream from the rafters. I respectfully disagree.

In the example where I take your case to trial and gain a defense verdict, your company has spent, on average, anywhere from $100,000 to $250,000 in legal fees (not counting the likely appeal). You’ve also tied up your business with the headaches, distractions and stress of pretrial conferences, document production and depositions, not to mention taking a huge risk that you might actually lose (no matter how well I do my job), costing your company even more.

On the other hand, if, before you terminate an employee, you call me, I might be able to save you the time, expense, aggravation and stress of a lawsuit, all for the cost of a phone call. Careful drafting of policies and agreements often achieves the same goal of keeping you out of court.

If a separation leaves bad blood between the parties, a nondisparagement clause is an easy way for a spiteful ex-employee or ex-employer to drag the other back into court.

Consider nondisparagement clauses in settlement and separation agreements. A nondisparagement clause restricts the parties to an agreement from speaking ill of the other. I hate them. OK, hate is a strong word. Let’s just say I detest how most people use them.

Yet, these clauses are exceedingly common in agreements. Familiarity, however, does not breed sensibility. They are hard to control, hard to enforce and encourage more litigation, not less. Thus, they fail my test of keeping my clients out of court.

Nevertheless, most employers insist on including these clauses in their agreements to hedge against the dead speaking ill of them.

For your consideration, here are three drafting points for your next nondisparagement clause:

1. Hard to control? Who does a nondisparagement clause bind? If it just says, “employer,” how does the agreement define “employer?” Even if you’re a small organization, can you control what Joe Coworker says about your departing employee, and do you want to have to advise every employee in your organization about potential nondisparagement obligations and control what they say? I have two suggestions to help ease the pain of this issue. First, define who, specifically, the clause covers; don’t leave it open-ended to bind your entire organization. Second, at least as job references are concerned, put some controls in place. Define who is to be contacted and what that contact-person is permitted to say. Even consider a predetermined script to limit any potential violations.

2. Hard to enforce? Most nondisparagement clauses say something like, “Employer [and Employee] agree not to disparage, or make any negative comments about the other,” which simply begs the question, what do “disparage” and “negative comments” mean? If you are serious about including this clause, define the terms. For example, your state will have a well-developed body of case law discussing and defining the meaning of defamation. This case law is a great starting point (and, maybe, end point) for this definition.

3. Encouraging litigation? If a separation leaves bad blood between the parties, a nondisparagement clause is an easy way for a spiteful ex-employee or ex-employer to drag the other back into court. Separation and settlement agreements are supposed to end the parties’ relationship and cease litigation, not act as a breeding ground for more. To cure this ill, tie a loser-pays clause to this provision. If a losing party has to pay everyone’s fees, one will think long and hard before exercising the right to sue for a breach of a nondisparagement clause. For this same reason, these clauses should be mutual, equally binding both sides.

Nondisparagement clauses are ripe for sloppy and vague drafting, which can result in parties ending up where they wanted to avoid — the courthouse. Following these three tips will help you shore up your language to create nondisparagement clauses that you can actually rely upon, and should, except in the most egregious of situations, discourage future litigation.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

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EEOC Issues New Guidance on Religious Dress and Grooming in the Workplace

Dress and grooming policies have been on the Equal Employment Opportunity Commission’s radar for several years. For example:

  • In April 2013, the EEOC won a long battle against clothing retailer Abercrombie & Fitch, in which the agency had argued that the company had failed to accommodate a job applicant’s Muslim faith by refusing an exception to its “Look Policy” for her religious head scarf.
  • In September 2010, the EEOC sued a Virginia moving company that refused to hire a Rastafarian because of his dreadlocks.

Other examples of religious garb or grooming that could conflict with workplace policies include a Sikh turban, a Pentecostal Christian or Orthodox Jewish woman’s practice of not wearing pants or short skirts, or hair length observances such as Sikh uncut hair and beard, or Jewish peyes.

These examples ask an important question, which, last week, the EEOC attempted to answer. When must an employer grant an exception to its facially neutral dress or grooming policy as an accommodation of an employee’s religion?

Before we delve into this question, however, you need to understand the legal framework in which this question exists.

“Religion” is among the classes that Title VII protects from workplace discrimination. Religion, however, is unique under Title VII. Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. In this context, undue hardship is a low standard — the proposed accommodation need only pose more than a de minimis cost or burden.

Because of the uniqueness of this issue, and its growing importance in our multicultural workplaces, last week the EEOC published a question-and-answer guide, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities.” This guide addresses how Title VII applies to religious dress and grooming practices, and what steps employers should take to meet their legal responsibilities in this area.

According to the EEOC, Title VII prohibits an employer from doing any of the following:

1. Holding garb and grooming worn for religious reasons to the same standards as that worn for non-religious reasons.According to the EEOC, “Title VII applies to any practice that is motivated by a religious belief, even if other people may engage in the same practice for secular reasons.” To qualify for protection, however, the belief must be grounded in religious beliefs, and not just personal preference. Thus, an employee who wears dreadlocks for a religious purpose (e.g., a Rastafarian) is protected, while one wearing the same hairstyle for a fashion statement is not.

2. Excluding someone from a position because of discriminatory customer preference. Customer preference is not a defense to a claim of discrimination. In illustrating this point, the EEOC uses the example of a Sikh, who wears a turban for a religious purpose, denied a job at a coffee shop because the customers would mistake him for a Muslim, which drives away business. That failure-to-accommodate, according to the EEOC, is illegal.

3. Assigning an employee to a non-customer contact position because of customer preference, or in support of a corporate “image” or marketing strategy.  Just like an employer can’t refuse to hire someone because of customer preference, it also can’t hide the employee in a back room for the same reason. It violates Title VII for an employer to segregate an employee out of fear that customers will have a biased response to religious garb or grooming.

4. Automatically refusing to accommodate an applicant’s or employee’s religious garb or grooming practice if it would violate the employer’s policy or preference regarding how employees should look. A policy that automatically refuses an accommodation ignores an employer’s obligation under Title VII to provide the accommodation unless it imposes an undue hardship.

5. Retaliating against someone because he or she requested a religious accommodation.

What can an employer do, according to the EEOC?

1. Accommodate an employee’s religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work, provided that such covering does not violate the employee’s religious beliefs.

2. Bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns, provided that the practice actually poses an undue hardship on the operation of the business.

To synthesize these Q&As into one cohesive takeaway, employers should train managers and employees that the law may require making a religious exception to an employer’s otherwise uniformly applied, and facially neutral, dress or grooming rules, practices, or preferences. This training should include the reasonable accommodation process, and the importance of avoiding stereotypes based on dress or grooming.

This post originally appeared on Law.com.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.