Tag: The Practical Employer

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A Pox on Ban the Box

I am a podcast fanatic. It’s the best way to spend time on my daily commute and to fill the speakers of my car stereo, I have an unending list of podcasts to which I subscribe.

They run the gamut from music related (“Wheels Off With Rhett Miller”), human interest (“Terrible, Thanks for Asking”), travel (“Bittersweet Moment”), and technology (“Reply All”). But my favorite is “Ear Hustle.”

“Ear Hustle” is a podcast about “the daily realities of life inside prison shared by those living it, and stories from the outside, post-incarceration.” One of its recent episodes discussed the realities and difficulties the incarcerated face trying to find employment upon their release from prison.

Bottom line? Once an employer finds out you committed a felony and spent time in prison, your employment prospects drop dramatically. And most learn of this information by an applicant checking the “Yes, I’ve been convicted of a felony” box on their employment application.

Earlier this year, the 5th Circuit Court of Appeals upheld an injunction that blocked the EEOC’s guidance on criminal background checks as unlawful and banned its continued implementation or use.

That injunction is significant for many reasons, not the least of which is that the EEOC’s guidance opined that employment applications that ask whether an applicant has ever been convicted of a felony violate Title VII on their face. Why? Because blacks and Latinos are incarcerated at a rate that is statistically significantly higher than whites.

The movement against employers asking this question on job applications is called “ban the box” — cleverly titled after the box applicants are asked to check if they’ve been convicted of a felony. Nationwide, 35 states and over 150 cities have adopted ban the box laws.

So what’s wrong with laws that are intended to give those with felony convictions in their background a chance at getting past the application stage of their employment search? The laws don’t work.

As illustrated on “Ear Hustle,” ban the box merely moves the criminal background check from the application stage to the formal background check stage. Employers that are predisposed not to hire felons are not going to hire felons. They will just ding them later in the hiring process — after the expense of a formal criminal background check. These laws aren’t changing employers’ minds or attitudes. They are just giving felons false hope.

Moreover, according to two recent studies, ban the box laws are causing more racial discrimination by improving the hiring prospects for whites, while making them worse for blacks and Latinos. The conclusion drawn by these studies is that when employers can’t see who has a criminal record, they still avoid people they think are likely to have criminal records by resorting to guesswork.

As a result, racial discrimination against black and Latino job applicants (especially men) replaces discrimination based on criminal record. In other words, banning the box doesn’t just fail to help those its intended to help, but it also might hurt anyone who happens to be black or Latino.

Thus, if ban the box laws either create a more damaging reliance on unconscious racial biases (as these studies suggest) or push the consideration of criminal backgrounds to later in the hiring process, where employers will still use them to disqualify candidates (albeit with higher transaction costs in the hiring process), why do we have them?

If ban the box laws aren’t working toward their intended results of opening job opportunities for ex-cons, then what should we do to achieve this laudable goal? I suggest a three-pronged approach:

• Job training within the prison system to provide the incarcerated with transferable real-world job skills and a certification they can provide to a prospective employers upon their release.

• Tax credits to incentivize businesses to hire these felons.

• A privilege from negligent hiring and other liabilities for employers that hire certain felons for certain positions (i.e., We still don’t want sex offenders working in schools, but they might able to work in a manufacturing facility if they are otherwise qualified and sufficiently rehabilitated).

We need something to break the cycle of crime, and that something is jobs. Stable employment and steady income will help stem recidivism and keep people from returning to crime as a means of support.

If ban the box isn’t working toward this goal, then local, state and federal governments need to abandon ban the box and look for other solutions to this problem.

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Gay Man Claims He’s the Victim of Discrimination Because of His Sexual Orientation; It’s the Least of His Employer’s Problems

Wesley Wernecke, an ex-employee of New York event planning company Eventique, claims in his recently filed suit that the company intentionally alienated him, ostracized him and shut him out of the business after its CEO learned Wernecke was gay.

NBC News shares the details of the allegations in Wernecke’s lawsuit.

Wernecke had just begun to work for Eventique …when [CEO Henry Liron] David began to push him out of his role … .

A week after he was hired, Wernecke’s co-workers commented on his “girly” engagement ring. When a co-worker asked if his wife wore a similar ring, Wernecke replied that his partner, Evan, did.

From that point on, tension developed between Wernecke and his co-workers and David that had not existed before, according to the complaint.

In the interim months, the complaint alleges, Wernecke was ostracized and excluded from professional meetings and office social events, passed over for assignments with large commissions and subject to discriminatory remarks.

David … would exclude Wernecke from company lunches and frequent after-work drinks with “the fellas” in his office, the lawsuit states, and at one point, David gave an account Wernecke had been working on to another employee without consulting Wernecke.

These allegations, however, are the least of Eventique’s problems. According to Wernecke’s lawsuit, David significantly cut his salary (from $145,000 to $58,000.) David’s justification (again, according to the lawsuit): so that Wernecke’s pay would be on par with “the other females in the office.”

That’s not just an admission of sex discrimination against Wernecke, but also an admission of wage discrimination against the company’s female employees.

My advice to Eventique? Get out ahead of this issue, conduct a pay equity audit as soon as possible, and adjust salaries and wages as needed. Because if I’m a woman working at Eventique, I’m interviewing employment lawyers this week.

My gut, however, tells me that if a CEO is brazen enough to (allegedly) make those statements, he’s brazen enough to take this lawsuit head on.

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‘Smoking Gun’ Email Revives Employee’s Disability Discrimination Lawsuit

Jon Hyman The Practical Employer

Maryville Anesthesiologists fired Paula Babb, an experienced certified registered nurse anesthetist, because it thought she suffered from a visual impairment.

How do we know why it fired her? Because the day after Babb’s termination, one of her co-workers confirmed it in an email (written at the direction of one of the employer’s owners).

As most of you know, [Babb] has been having major issues with her eyesight and as of late, it has seemed to be getting even worse. We have had numerous complaints from [hospital] staff regarding her inability to read the monitor, etc. Over the past several months the group has given her several opportunities to provide documentation from her eye specialist saying that she was safe to practice. [Babb] was unable to provide this documentation. This, in addition to a few other issues, has forced the group to make a very difficult decision. As of today, she is no longer with our group. Sorry to be the bearer of bad news. This was one of the reasons that our meeting was postponed. See you all tomorrow.

Despite this email, the district court granted the employer summary judgment and dismissed Babb’s “regarded as disabled” ADA lawsuit.

On appeal, the 6th Circuit had little difficulty in reviving the claim, in large part because of what it described as the “smoking gun” email.

Maryville has never tried to defend its termination of Babb on grounds that Babb’s vision created a safety hazard, and has instead insisted that Babb’s termination occurred solely because of clinical errors unrelated to her vision. But, yet, just hours after Maryville decided to fire Babb, Crystal Aycocke wrote an e-mail to her fellow CRNAs essentially stating that Maryville was firing Babb because of her impaired vision. More striking still, far from being mindless office gossip, Aycocke admits that she composed this e-mail at the direction of Dr. Proffitt—one of the key players involved in Babb’s termination—shortly after Dr. Proffitt informed her of Babb’s termination. And, of course, all of this occurred in a context in which Maryville’s physicians felt concerned enough about Babb’s vision to discuss it at the meeting at which they decided to fire Babb, and on the official evaluations they wrote about Babb. (“I see her questionable ability to see reflect on how surgeons and the medical staff lack accepting her.”). If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.

Employers, if you are short-sighted enough to (a) fire an employee because you believe she suffers from a disability, and (b) confirm that belief in writing, then you deserve whatever fate you suffer in litigation.

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An Employee’s Disability Is Not a ‘Get Out of Jail Free’ Card for Workplace Misconduct

Jon Hyman The Practical Employer

Does a medical leave of absence grant an employee a free pass for pre-leave misconduct discovered during the LOA?

This question is squarely at the center of the court’s decision in Williams v. Graphic Packaging International (6th Cir. 10/31/19) [pdf]

James “Randy” Williams worked as a department manager for Graphic Packaging. In late 2014 or early 2015, Williams told his supervisor, plant manager Eddie Lee, that he had been re-diagnosed with prostate cancer. In September 2015, Williams requested time off for treatment, which the company granted from Sept. 14 through Nov. 23, 2015. During that leave, however, several of Williams’ subordinates lodged complaints against him of inappropriate treatment. The company investigated, and concluded that “Williams had been using manipulative and coercive tactics to control his employees and prevent them from communicating with upper management.” As as a result, shortly after Williams returned to work, the company fired him.

Williams sued, claiming (among other things) that firing on the heels of a return to work after cancer treatment is tantamount to disability discrimination.
The 6th Circuit court of appeals disagreed.

The evidence demonstrates that Graphic Packaging terminated Williams’s employment after receiving complaints from an employee, which were later corroborated by interviews with fellow employees, an internal investigation, and depositions from Graphic Packaging upper management, Human Resources employees, and employees who reported to Williams. The record reflects that Williams violated Graphic Packaging’s Core Values by mistreating employees both publicly and privately, limiting access to upper management, and propagating troubling and salacious rumors concerning upper management. Williams has even admitted that he committed at least some of the acts which so clearly violated Graphic Packaging’s Core Values.

No employee gets a free pass on workplace misconduct just because he or she suffers the misfortune of having cancer (or any other disability). The company concluded that the allegations against Williams (which its internal investigation corroborated, and many of which Williams himself admitted) merited termination. Those allegations included Williams telling his subordinates that he “owned” them; spreading an unsubstantiated rumor that Lee had molested his own daughter; cheating on a mandatory safety exam; and forbidding his subordinates from speaking to plant management.

Cancer and other ADA-protected disabilities are not “get out of jail free” cards for workplace misconduct. Do your due diligence, and treat the employee the same as you would have treated him or her if the disability didn’t exist. If the misconduct warrants termination, so be it. Terminate, and defend your legitimate, non-discriminatory decision. Otherwise, you risk setting a precedent that the misconduct is OK, which will make it that much more difficult to hold others accountable for that same misconduct in the future.

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Must You Tell Employees When You Are Surveilling Their Devices?

Jon Hyman The Practical Employer

It’s unusual these days for an employee not to have a device issued by their employer, or on which they can access their employer’s information — cell phones, tablets, laptops, and other computing devices.

Conventional wisdom (California notwithstanding) is that if the employer owns the device, the employee has zero privacy rights in that device, its use, or the information stored on it.

That conventional wisdom, however, might be changing.

The Federal Trade Commission just announced the settlement of charges it had brought against the developer of certain “stalking” apps.

What is a stalking app? It’s one that runs surreptitiously in the background of a device so that the user of that device does not know that the app is tracking their physical movements and online activities.

In this case, the apps in question “allowed purchasers to monitor the mobile devices on which they were installed without the knowledge or permission of the device’s user.” The apps also came with instructions so that the purchaser could “remove the app’s icon from appearing on the mobile device’s screen so that the device’s user would not know the app was installed on the device.”

Notably, one of the apps, MobileSpy, was specifically marketed to monitor employees.

The Settlement Agreement and Consent Order [pdf] specifically addresses the employment concerns raised by the app.

Prior to the sale or distribution of any Monitoring Product or Service, Respondents must obtain … [a]n express written attestation from the purchaser that it will use the Monitoring Product or Service for legitimate and lawful purposes by authorized users. The express written attestation must state the legitimate and lawful purpose for which the purchaser is using the device, which may include only the following: … 2. Employer monitoring an employee who has provided express written consent to being monitored….

In other words, while the FTC brought this case against the company that developed, marketed, and sold the stalking apps, the settlement specifically prohibits that company from selling the apps to an employer unless the employer certifies, in writing, that it will only use the apps to monitor employees who have provided express written consent to being monitored.

Legally speaking, this development is very interesting. The law is figuring out how to catch up to advancements in technology.

Practically speaking, I’m wondering why employers aren’t already obtaining consent before tracking their employees. In my mind, this issue raises a fundamental question of the type of employer you want to be, and the type of relationship you want to foster with your employees.

Do you want to be an employer that is open and honest with your employees that operates on trust? Or do you want to be an employer that slinks around behind your employees’ backs and breeds dishonesty and distrust? I know how I answer this question. How you answer it says a lot about who you are as an organization.

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Poor Taste Does Not Amount to Prohibited Sexual Harassment

Jon Hyman The Practical Employer

I once made the mistake of watching an episode of Orange is the New Black on an airplane.

The guy sitting behind was very uncomfortably enjoying the show along with me, and I shut it down.

Which brings me to Sims v. Met Council, a case in which an employee claimed her co-workers’ choice of television shows in the break room created a hostile work environment.
The show at issue is “Luke Cage,” which included some brief nudity. At the plaintiff’s request (and a brief argument) her co-workers changed shows. This incident repeated again later that day, with the co-workers again changing shows at the plaintiff’s request. It was undisputed that the show in question contained two scenes with nudity, each lasting less than a minute.
Stephanie Sims reported the incident to management, which assured her that the break-room television would no longer be able to connect to steaming services. Management also counseled the offending employees on the employer’s respectful workplace policies and its prohibition against retaliation.
The district court had little difficulty dismissing Sims’ hostile work environment claim.

First, her exposure to two brief scenes of nudity on a television in the drivers’ lounge cannot reasonably be perceived as hostile or abusive. … Considering all of the circumstances in the light most favorable to Sims, … she was simply not subject to severe or pervasive harassment.

And even if the brief incidents at issue here could somehow arise to objectively serious or pervasive harassment, Sims’s claim fails because there is no indication that she was subject to something to which male drivers were not exposed. The TV was on for all drivers, male and female, to see. The brief nude scenes were not directed at Sims because she was a female. Poor taste does not amount to prohibited sexual harassment.

And finally, … a Title VII plaintiff must also establish that her employer failed to take prompt remedial action when informed of the allegedly harassing behavior. Sims cannot make this showing here. The evidence, in fact, demonstrates the opposite: to a person, Sims’s managers responded to her complaints, attempted to comfort her, and took immediate action.

One employee’s television show is another’s harassment. And while this court almost certainly correctly concluded that a minute of nudity on a screen does not rise to the level of a hostile work environment, it’s nevertheless not a bad idea to take a stand against all nudity in the workplace so that you don’t end up in court making these arguments.

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No-fault Attendance Policies Offer No Cover When the ADA or FMLA Are Involved

Jon Hyman The Practical Employer

An employee suffering from epilepsy, migraines and heart condition asks (with a medical note) for two unpaid days off from work to treat symptoms related to her disabilities.

Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues.

These policies, however, carry, a certain degree of risk — namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy. And, in this case (assuming the medical note is legit), and for this reason, it appears this employer has a big problem with the EEOC.

On a more basic level, where’s the humanity in denying two days off for an employee to deal with medical symptoms, especially when the request is accompanied by a doctor’s note?

The ADA requires reasonable accommodations. Unless the employee is a serial abuser of unpaid days off, it’s hard to imagine a situation in which two days is not a reasonable request.

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Employee Fired for Stacking Intermittent FMLA Leave With Vacation Loses Retaliation Claim

Jon Hyman The Practical Employer

Kevin LaBelle, a lab technician for mining company Cleveland-Cliffs, took occasional days off from work for approved intermittent FMLA leave for flare-ups related to a shoulder injury.

His employer noticed that LaBelle seems to always take his FMLA leave by combining it with scheduled days off and vacation days.

Noticing the pattern of suspected abuse, the company hired a private investigator to watch LaBelle during his FMLA leave, and twice found him playing golf. The employer concluded that if LaBelle was experiencing a shoulder flare-up that prevented him from working, he would not be able to golf, and that if he could golf, he could work. Accordingly, it fired him for FMLA fraud and abuse.

The 6th Circuit affirmed the trial court’s dismissal of LaBelle’s FMLA retaliation claim:

There is no evidence in the record to show that Cliffs’ proffered reason lacked a basis in fact. Cliffs approved LaBelle’s request for intermittent FMLA leave for two reasons: (1) attending medical appointments and (2) taking three days off per month for a “flare-up.” Even crediting LaBelle’s explanation of why it was ok for him to golf, or why he “stacked” his leave, LaBelle did not take FMLA leave for “flare-ups” or medical appointments. He took FMLA leave because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA leave was for.… If LaBelle had constant pain that required occasional long weekends to mitigate, he should have requested FMLA leave for that purpose.

Intermittent leave is (one of) the biggest FMLA-management problems for employers. And the “stacking” of intermittent leave against other scheduled days off is one of the biggest intermittent-leave management problems. This case gives employers a great tool to combat this form of FMLA abuse.

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When Alcohol Is Involved, the ADA Distinguishes Between ‘Having a Disability’ and ‘Disability-related Misconduct’

Jon Hyman The Practical Employer

Alcoholism is an ADA-protected disability.

Yet the ADA does not require that employers accommodate alcoholics by permitting them to drink, or otherwise be intoxicated, on the job.

Case in point? Dennis v. Fitzsimmons (D. Col. 9/5/19).

Jared Dennis was employed as a deputy in the Summit County, Colorado, Sheriff’s Office. He’s also an alcoholic. While on administrative suspension following his wife’s allegation of domestic violence, Dennis got drunk at home the night before his criminal arraignment. The following morning, he failed his intake breathalyzer. Thereafter, the Sheriff’s Office terminated him for, among other rules violations, conduct unbecoming of an officer and being impaired while on duty.

Dennis sued his former employer for disability discrimination, claiming that it fired him because of a protected disability — his alcoholism.
The court disagreed, and dismissed Dennis’s lawsuit.

It is generally recognized that alcoholism can constitute a disability entitling the employee to protection under the ADA…. The more difficult question is whether Deputy Dennis has come forward with evidence that his termination resulted from his disability, rather than his conduct.…[W]hen the disability at issue is alcoholism, the ADA … draw[s] a distinction between “having a disability” and “disability-caused misconduct.”

It is undisputed that the SCSO based its decision to terminate Deputy Dennis’ on the fact that he reported for his arraignment in an intoxicated state. Thus, there is no dispute that SCSO’s decision arose from his unsatisfactory conduct on the morning of July 28, not from his abstract status as an alcoholic. As noted, the ADA … do[es] not extend protection to actions of alcohol-influenced misconduct, even if the employee’s alcohol use is related to the disability of alcoholism. Accordingly, Deputy Dennis has not come forward with evidence that indicates that his termination was based on his status as a disabled person (as opposed to his conduct).

Addiction is a protected disability. But it does not mean you have to permit its use to accommodate the disability. Under the influence at work does not equal a disability, ever.
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The Supposed #MeToo Backlash Is Just Discrimination By Another Name

Jon Hyman The Practical Employer

A recent study suggests that there has been a backlash against the #MeToo movement.

According to  the Harvard Business Review, men are treating their females co-workers differently because of #MeToo.

  • 19 percent of men said they were reluctant to hire attractive women.
  • 21 percent said they were reluctant to hire women for jobs involving close interactions with men.
  • 27 percent said they avoided one-on-one meetings with female colleagues.
This isn’t a #MeToo problem. It’s the problem that #MeToo is trying to fix. Indeed, Harvard Business Review could rewrite its headline to read, “More than one in four men admit to discriminating against female co-workers.”
Can women falsely accuse their male colleagues of sexual harassment? Absolutely … just as they could before the #MeToo movement. And just as men can falsely accuse women, and women each other, and men each other.

False accusations of harassment are not a #MeToo problem. They are systemic in any system that relies on employees to self-police and report misconduct via complaints. The remedy isn’t sexually segregated workplaces. The remedy is thorough and complete investigations of all complaints of harassment, and appropriate punishment for those who are found to have lodged false complaint.

The risk of false harassment complaints is not an excuse for sexual segregation at work. Instead, the risk of sexual segregation is the reason to double down on efforts to root out and end sexual harassment and other sex discrimination.