The 11th Circuit Court of Appeals has upheld a six-figure verdict in favor of a Stephanie Hicks, a former narcotics task force investigator for the Tuscaloosa, Alabama, police department. She sued, and won, after her former employer refused to permit her to pump her breast milk after returning from maternity leave.
Refused might be an over-exaggeration. But not by much. The police department allowed her to pump, but only in the not-so-private confines of the locker room, where any co-worker passing by could see. Aside from invading her privacy, it also violates federal law, which requires employers to provide women with a place to pump “other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.”
When she would head downstairs to pump, she would often get a call on her radio from her coworkers telling her to “wrap those boobs up” and get back to work.
Ultimately, she quit her job and successfully claimed that the police department subjected her to a hostile work environment and constructively discharged her.
Look, I’m not a woman, I don’t know what it’s like to lactate, and both of my kids were bottle fed. But, I know enough to know that if you tell a lactating employee to “wrap those boobs up” so that she can get back to work, you might be the worst employer of 2017.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Do you require medical exams of applicants before they start working for you? If so, do you know the rules that the ADA requires you follow?
Last month, the EEOC settled a lawsuit it brought against a Florida staffing firm for alleged unlawful pre-employment medical exams under the ADA, which serves as a good reminder for employers of these rules.
According to the lawsuit, the firm asked applicants to complete a paper application package with a detailed medical questionnaire — including sensitive health information and included numerous disability-related questions — before the company offered the applicant a position or placement.
This settlement is good reminder that the ADA has strict rules regulating when an employer can, and cannot, ask individuals for medical information prior to the start of employment.
The ADA applies a traffic-light approach to employer-mandated medical exams.
Red Light(prior to an offer of employment): the ADA prohibits all disability-related inquiries and medical examinations, even those that a job related.
Yellow Light(after employment begins): an employer only may make disability-related inquiries and require medical examinations that are job-related and consistent with business necessity.
Green Light(after an applicant is given a conditional job offer, but before s/he starts work): an employer may make any disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.
Pay attention to state laws, as well. For example, Ohio prohibits an employer from shifting the cost of any pre-employment medical exam to an employee: “No employer shall require any prospective employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment.”
According to EEOC Regional Attorney Robert Weisberg, “Congress recognized that prohibiting pre-offer medical inquiries was necessary to prevent applicants from being subjected to harmful and unfounded stereotypes on the basis of an actual or perceived disability.”Further, “As staffing agencies now play a large role in our nation’s workforce, eliminating any discrimination in their screening practices is increasingly important to ensuring that workers with disabilities have equal access to work opportunities.”
Sage advice.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Consider the following allegations of sexual harassment levied by Pamela Daniels, a secretary in the Pike County (Ohio) Prosecutor’s Office, against her boss, County Prosecutor Charles Robert Junk.
And then let’s answer the age-old question — lawful (but awful) bullying or unlawful harassment?
(1) he permitted male diversion officers (excluding Jason Savage) to work hours other than 8:30 a.m. to 4:30 p.m.;
(2) he did not strictly require male diversion officers (excluding Jason Savage) to punch a time clock;
(3) he accessed female employees’ computers to check on their personal internet search histories and, on one occasion, he accessed and left female employees’ search histories on their computer screens;
(4) he prohibited plaintiff Barron from cashing in her vacation time, but permitted male employees to do so;
(5) he laughed and chatted with male employees, but “smirked” at female employees;
(6) on one occasion, he commented to plaintiff Daniels that she looked like she had lost her best friend;
(7) he loudly popped packing materials in the area where the female employees worked;
(8) he told members of the public on one or two occasions that “these girls have work they need to be doing. I’m just making sure they’re doing what they’re supposed to do.”;
(9) he stated in front of female employees, “Everybody working. Nobody’s whining. That’s the way we like it.”;
(10) he asked, in front of the female employees, whether “everyone” had punched the time clock;
(11) he spoke to others about plaintiffs as if plaintiffs were not present; and
(12) he asked plaintiff Daniels on one occasion why she was wearing jeans and said “if you say so” and stomped off when plaintiff Daniels reminded him that he had given her additional time to comply with the dress code.
Lawful (but awful) bullying, or unlawful sexual harassment?
There is little doubt that the working relationship between Junk and Daniels deteriorated significantly after October 2013. However, the listed instances of alleged harassment, even in the aggregate, would not be considered by a rational person to be sufficiently severe or pervasive so as to alter the conditions of the plaintiff’s employment. One of the instances of alleged harassment. … Numerous others involved implementation of office policies that reflected the realities of the responsibilities of office personnel. Others were relatively innocent, singular occurrences, comments that were not objectively hostile or abusive, or “mere offensive utterance[s].” … Without question, Junk’s actions in that regard showed both immaturity and bad judgment. The totality of the circumstances, however, do not support the conclusion that the working environment was objectively hostile or abusive.
I could construct a plausible argument that a jury, not a judge, should decide whether Junk sexually harassed Daniels, and a different panel of judges could see this issue differently and side with Daniels.
Do you know, however, the best course of action to remove any uncertainty over the issue of whether boorish office behavior crosses the line from lawful bullying to unlawful harassment?
Don’t employ assholes. Period.
It’s just that simple.
And, lest you worry that Junk and his employer got off scot-free, Daniels prevailed on her retaliation claim, as not only did Junk subject her to this litany of misconduct, but he also fired her after she complained about it.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Should new dads receive the same amount of time off from work to bond with their newly born child as do women? That is the question at the center of a lawsuit the EEOC recently filed against cosmetics giant Estée Lauder.
According to the EEOC, Estée Lauder’s parental leave program provides eligible new mothers six weeks of paid parental leave for child bonding (plus six additional paid weeks for childbirth recovery). Under the same policy, however, Estée Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding.
EEOC Washington Field Office Acting Director Mindy Weinstein says about this lawsuit, “It is wonderful when employers provide paid parental leave and flexible work arrangements, but federal law requires equal pay, including benefits, for equal work, and that applies to men as well as women.” Adds EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence, “Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission.”
What does this mean for your policies? If you provide unequal post-childbirth baby-bonding benefits to male employees as compared to female employees, you might be putting yourself in the EEOC’s spotlight.
Indeed, men and women are physiologically different (women give birth; men do not), and this key difference justifies some policy differences. It should be lawful to differentiate gender-based post-childbirth leave based on the medical need to recover from the trauma of childbirth. Bonding, however, is totally different. I see no reason, other than an archaic view of the role of men versus the role of women in raising children, why mom is entitled to six paid weeks but dad only two.
Men and women can both be the primary parent. While you can certainly say only one parent can fill that role if both parents work for your company, you should otherwise take the employee’s word for it.
Legally, you have to allow up to 12 weeks of unpaid leave for any parent to take care of new baby, a new foster child, or newly adopted older child. Don’t ever assume that the dad will not be the one to take this leave that is guaranteed under FMLA. Again, if both parents work for you, you can limit this to 12 weeks total.
Don’t limit leave to married couples, or heterosexual couples. Babies need care, period.
Take a page out of Facebook’s manual, and don’t require employees to use parental leave in one lump. [I’m not sold on this point, as it make leaves much more difficult to administer, could lead to abuses, and certainly leads to scheduling difficulties.]
Double check with your attorney before implementing the policy. Employment law is complex and varies from state to state. It’s always cheaper to pay an attorney before than it is to pay an attorney to defend you. [AMEN!]
Late last week, a federal judge in Texas struck down the Department of Labor’s attempt to raise the salary test for the Fair Labor Standards Act’s white-collar exemptions from $455 per week to $913 per week.
The court held that because the statute defines the administrative, executive, and professional exemptions based on their duties, any salary test that renders the duties irrelevant to the analysis is invalid. Thus, because the Obama-era $913 salary test could overshadow the exemption’s duties in the execution of the exemptions, the new salary level is invalid.
I found footnotes 5 and 6 to be very interesting, but I’m not sure the position they advance are intellectually consistent with the bulk of the opinion.
Compare:
This opinion is not making any assessments regarding the general lawfulness of the salary-level test or the Department’s authority to implement such a test. Instead, the Court is evaluating only the salary-level test as amended by the Department’s Final Rule. … During questioning at the preliminary injunction hearing, the Court suggested it would be permissible if the Department adjusted the 2004 salary level for inflation. [fns. 5 and 6]
-vs-
The Final Rule more than doubles the previous minimum salary level. By raising the salary level in this manner, the Department effectively eliminates a consideration of whether an employee performs “bona fide executive, administrative, or professional capacity” duties. … Nothing in Section 213(a)(1) allows the Department to make salary rather than an employee’s duties determinative of whether a “bona fide executive, administrative, or professional capacity” employee should be exempt from overtime pay. [opinion]
The only way to read the opinion is that any salary test exceeds the DOL’s authority to implement the EAP exemptions (footnotes 5 and 6 notwithstanding). Alternatively, if the only salary test that will pass muster is one that is so low that anyone who meets the duties test also must, de facto, meet the minimum salary threshold (the status quo of $455, adjusted for inflation to $592), why have a salary test at all?
Thus, in my opinion, the DOL’s salary test is DOA. Now, let’s wait for the appeal and see what the court of appeals has to say on this issue.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Open office spaces can work, but they need a balance and it depends on the industry.
When I accepted my first office internship at Human Capital Media, I asked many of my friends the same question: “What’s your office like?” I heard much of the same answer: an open office space.
As the trend toward open office spaces hits the workplace and studies emerge about their effectiveness and innovation, questions are rising about this Silicon Valley-inspired model that is supposedly the future of office spaces.
How does it boost productivity and deal with office distractions? Does it further disconnect employees with the eternal presence of technology? The discussion becomes more interesting when you consider in conjunction with another rising workplace trend: remote working.
Many employees work from home and have flexible work arrangements, so their comfort level has seeped into the office design. Airbnb’s office is said to be like entering someone’s house; creative homey nooks with hanging lights, colored walls and antique portraits and memorabilia for private concentration, standing-only desk cubicles or large sleek lounges with wall plants and dog-friendly spaces had the company received rave reviews for its space.
Mixed with a modern office setting of ample wooden tables for conferences, meetings and productive vibes, it’s no wonder the space won Glassdoor’s 2016 Best Place to Work. Modern spaces like these are heading toward a future where the work-life balance will be less office space and more working from home. These spaces are acting as a “second home” while losing the title of a typical “office.”
While it depends on the job, most corporate industries and technology-aiding jobs can be done from home or any space that lets you have a flexible schedule and not have much of a commute, like these open environments. In a recent Forbes article by Sydney Parker about humanizing the future of the workplace, she wrote that balance is coming to fruition for convenience, according to experts on office spaces and design.
“Panelists [at the Bisnow Seattle Workplace of the Future event] envisioned office spaces intermingling with residential and retail cores, allowing workers to walk, bike and work remotely from home. In the future workplace, an individually determined work-life balance will not be a lofty aspiration, but a shared reality,” she wrote.
Millennials are one group pushing for flexible work hours and remote work access, according to HR experts and millennials themselves. In my first blog post for Workforce, I wrote about millennials’ influence on shaping the workforce and their growing presence in tech fields.
As a millennial, those benefits in a job are extremely attractive and allow me to have better control of time management and work around other commitments. Being constantly plugged into social media and computers for work, office spaces no longer need to be so segmented and traditional, which younger generations know well.
These office spaces are similar to working from home and allow flexibility in work schedules and boost engagement and creativity, studies show. According to Nicholas Bloom, professor of economics at Stanford University, a 2014 study he conducted of a call center’s remote workers showed their increased productivity when they were able to work from home over a span of nine months, as compared to workers in the office. According to the Harvard Business Review interview with Bloom, who is a co-director of the productivity, innovation and entrepreneurship program at the National Bureau of Economic Research, this was because of their quieter environment and their flexible schedule to start earlier, take fewer breaks and work around family commitments.
He brought up the point that not everyone has the discipline and motivation to work remotely; some need manager support and thrive on a work-specific space with obvious company culture. As with anything, balance is key to success, and it applies here in workspaces and work remotely.
Working only from home would not be conducive socially and work-wise, but having a mix of office days and work-from-home days could be a healthy alternative to keeping morale alive, having manager support when needed and keeping employees connected to the organization. Bloom mentioned this model would also save money for companies.
To move with the times, companies need to be open to remote work flexibility, balance modern workspaces that act as a “second home” and less confinement, while also listening to the needs of their employees. If someone is used to a closed office or works better in those spaces, they should have that option.
A New York Times op-ed called out Google for wrongly creating an office open space that is destroying work culture, but what is actually wrong is not accommodating an employee’s need. More recently, Apple’s employees have threatened to quit over the company’s new floor plan, featuring open office layouts. Having the balance between social and quiet rooms and closed offices, like we have seen with Airbnb, is the future of office design and can push employees to work from their office “home” with co-workers.
Ariel Parrella-Aureli is a Workforce intern. Comment below or email editors@workforce.com.
According to a recent survey conducted by OfficeTeam, on average, employees spend eight hours per workweek on nonwork activities.
What does this non-work time look like?
Personal emails: 30 percent
Social networks: 28 percent
Sports sites: 8 percent
Mobile games: 6 percent
Online shopping: 5 percent
Entertainment sites: 3 percent
Moreover, try as they might to regulate this activity, employers fail. The same survey reports that 58 percent of employees simply use their personal mobile devices at work to access websites blocked by their employers — a 36-point jump from OfficeTeam’s last survey in 2012.
So, what is an employer to do? I say embrace the distraction. As I’ve long argued:
Employers that try regulate personal social media use out of the workplace are fighting a Sisyphean battle. I call it the iPhone-ification of the American workforce. No matter your policy trying to regulate or outright ban social media in your workplace, if your employees can take their smartphones out of their pockets to circumvent the policy, how can you possibly police workplace social media access? Why have a policy you cannot police and enforce?
Instead of regulating an issue you cannot hope to control, treat employees’ use of social media for what it is—a performance issue. If an employee is not performing up to standards because he or she is spending too much time on the internet, then address the performance problem. Counsel, discipline, and ultimately terminate if the performance does not improve. A slacking employee, however, will not become a star performer just because you limit his or her social media access; he or she will just find another way to slack off. Instead of wasting your resources to fight a battle you cannot win, reapportion them to win battles worth fighting.
We ask so much of our employees. The 9-to-5 is no longer relevant. If my employee, who is giving up night and weekends for me, wants to spends a few minutes during the workday posting to Facebook, or checking the score of last night’s game, or buying something on Amazon, I just don’t care (unless you are working in a safety-sensitive position, and then why the hell are you on your phone at all‽), unless and until it reaches the level of distraction and impacts performance. Then, however, we are treating the performance problem, not the technology problem, which is the appropriate and practical solution.
So, how much wasted work-time is too much? To me, the answer is only when it hinders performance. Otherwise, I say read your Game of Thrones recaps and post those cute back-to-school photos of your kids (did I just divulge too much?)
During the term of this Contract and for 24 months thereafter, within the territory regularly serviced by the Manager’s branch sales office, the Manager shall not, personally or through the efforts of others, induce or attempt to induce:
(a) any agent, branch sales manager, field vice president, employee, consultant, or other similar representative of the Company to curtail, resign, or sever a relationship with the company; [or]
(b) any agent, branch sales manager, field vice president or employee of the Company to contract with or sell insurance business with any company not affiliated with the company.
According to Bankers Life, Gelineau allegedly asked three of its employees to connect via LinkedIn. By connecting, Bankers Life argued, the employees could then view Gelineau’s profile, which would uncover job listings at American Senior. Galineau argued that he never used LinkedIn to send direct messages to Bankers Life employees, and instead merely sent “LinkedIn generic emails” asking them to form a professional connection on social media.
The court held that the mere act of asking someone to connect on the social network, via a generic, canned email generated by the network itself, did not violate the non-solicitation agreement:
Here, … the undisputed facts established that the invitations to connect via LinkedIn were sent from Gelineau’s LinkedIn account through generic e-mails that invited recipients to form a professional connection. … The generic emails did not contain any discussion of Bankers Life, no mention of ASB, no suggestion that the recipient view a job description on Gelineau’s profile page, and no solicitation to leave their place of employment and join ASB. Instead, the emails contained the request to form a professional networking connection. Upon receiving the emails, the Bankers Life employees had the option of responding to the LinkedIn requests to connect. If they did connect with Gelineau, the next steps, whether to click on Gelineau’s profile or to access a job posting on Gelineau’s LinkedIn page, were all actions for which Gelineau could not be held responsible. Furthermore, Gelineau’s post of a job opening with ASB on his public LinkedIn portal did not constitute an inducement or solicitation in violation of his noncompetition agreement.
In other words, like other courts to consider this same issue, a breach of a non-solicitation agreement requires active efforts on the part of the former employee to induce a former co-worker or customer to do something. The mere act of connecting on a social network is not enough; it’s akin to keeping the person’s email and phone number in your Rolodex.
If, however, you are concerned about ex-employees using LinkedIn or other social networks to connect with employees or customers, why not include language in your no-solicitation agreement to cover such a possibility?
“Solicitation” includes, but is not limited to, offering to make, accepting an offer to make, or continuing an already existing online relationship via a Social Media Site. “Social Media Site” means all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, in addition to any other form of electronic communication.
By defining “solicitation” to include passive social media connections and activities, you are at least putting yourself into a position to have a court consider shutting down an ex-employee for creating or maintaining these online relationships.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.
In the wake of Friday and Saturday’s horrific, evil events in Charlottesville, the the twitter account YesYoureRacist posted many riot photos and identified many of the rioters. And, as a result, some have lost their jobs.
Question: Does one participating in a Nazi rally enjoy any job protections from said participation?
Answer: Absolutely not.
“But Jon,” you ask, “just six months ago you told us that the National Labor Relations Act protects individuals’ political advocacy during the their own time in non-work areas? What gives?”
What gives is that you missed the key first part of this standard — the political advocacy must be non-disruptive. There was absolutely nothing “non-disruptive” about what happened in Charlottesville. In fact, it was the very definition of disruptive.
Thus, even if Mr. White could argue that the protest was “for or against a specific issue related to a specifically identified employment concern,” (and I would strongly argue that racial purity is not such an issue, see Title VII), the violent and disruptive nature of the protest removes all hope he and anyone else at the rally could hold for any employment protections.
Mr. White absolutely has the constitutional right to hold whatever opinion he wants to hold. And he even has the constitutional right to peacefully express those opinions, no matter how vehemently one might disagree with his point of view. Those rights are what make America great.
Those constitutional rights, however, stop at a private employer’s door. And I, as a private employer, have the right to hold my employees accountable for their viewpoints and terminate when I, in good faith, determine that those viewpoints may bleed into my workplace and create a hostile environment for other employees. I certainly have the right to fire when those viewpoints cross the line into violence or threats of violence.
More deeply, NLRA or no NLRA, free speech or no free speech, if one marches in public exposing a connection to this brand of hate, I would dare the individual to sue after being fired. Do not pass go, do not collect severance, just bring it on.
Because what kind of employer am I if I ignore an employee’s role in what happened over the weekend? What message does it send to my minority employees, my Jewish employees, my Muslim employees, my anyone-but-alt-right employees (not to mention my Title VII obligations to provide a workplace free from racial and religious harassment)?
Silence in the wake of hate at best condones the hate, and at worst participates in it. If it’s my business, I choose not to stay silent.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.
There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees.
“Hey, did you bring enough KFC for everyone?”
“Go back to Africa, you bunch of f***ing losers.”
“Hey anybody smell that? I smell fried chicken and watermelon.”
A gold star for you if you answered a picket line, when the comments are made by striking workers and are directed at a group of replacements crossing said picket line. Or at least this is the majority finding of the 8th Circuit Court of Appeals in Cooper Tire & Rubber Co. v. NLRB [pdf].
How could a court reach this (incorrect) conclusion?
Courts show deference to decisions of administrative agencies, and the NLRB found that Cooper Tire unlawfully terminated the picketer.
The picketer’s comments, while racist and offensive, were not accompanied by threats or violence.
The offensive words were “part of a package of verbal barbs thrown out during a picket line exchange” or were of a “message dealing with the morals and character of crossovers generally,” and did not target a specific replacement worker.
The better argument? Look no further than the dissenting opinion of Judge C. Arlen Bean:
No employer in America is or can be required to employ a racial bigot. Indeed … the court’s requiring of the petitioner to do so here, is tantamount to requiring that Cooper Tire violate federal anti-discrimination and harassment laws … . Engaging in union organizing or efforts to vindicate protected labor activity does not insulate the volatility and heinous nature of racist, or sexist, remarks. … Discriminatory and degrading stereotypes are not legitimate weapons in economic disputes carried out on the picket line.
Amen.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com.
