Category: Recruitment

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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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Are Internal Promotion Rates Increasing?

Dear Sizing Up the Future:

First, there really is a skill shortage. A recent survey by Accenture found that 46 percent of U.S. executives worry their companies won’t have the skills to compete during next year or two. This skills gap spans the globe, from North and South America to Europe and Asia. Although unemployment is high, people with needed skills are in short supply.

Here is a five-step plan for dealing with it. 

1. Complete competency maps for mission-essential jobs. That will tell you which types of knowledge, skills, work attributes and experience people need to competently perform those jobs. Use the competency maps to conduct a competency assessment that identifies skills gaps. Use this information to develop career paths, succession plans and recruiting strategies.

2. Determine who could be moved to new positions and who must remain until the skills gap is minimized. After that, develop skill-acquisition initiatives to prepare talent for lateral or upward moves. These initiatives could include formal job-skill training as well as shadowing, mentorships, informal learning from peers, online forums and so on. You should have a mix of e-learning/mobile learning and instructor-led training to sustain engagement and interest.

3. After addressing internal development needs, look outside the organization for new talent. It’s possible to expand your talent pool by loosening the qualifying criteria. The current trend is to stop looking for the “perfect” candidate and hire based on potential and more generalist skills. You may also want to look for candidates from outside the core industry who have the aptitude to do well in yours.

4. Be selective when interviewing candidates, but look for opportunities to hire rather than reasons for rejecting. To help with selection, use online resources that are inexpensive and accessible. Do actual follow-up on references and request them to provide additional references.

5. Build your talent network. Many organizations are partnering with local colleges and universities, tech schools and trade schools to identify programs that can teach the skills needed to be successful in their business/industry. Talk with your local colleges to see what they offer and share what you need. Be open to internships that bring smart seniors or graduate students to your workplace to help with meaningful projects. Look to organizations that are closely related to yours that might serve as a talent source for you. Maybe they have someone who has topped out and is looking for more of a challenge, one that your company could offer. Rather than raid a competitor, become a partner who provides job opportunities that a smaller company might not have. It’s a good recruiting tool for them and you could pay them a finder’s fee.

SOURCE: Alan Landers, president, First Step Training, San Diego, April 3, 2014

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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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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.

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Following Doctor’s Orders Helps Employer Win ADA Case

Cynthia Horn worked for Knight Facilities Management as a janitor. Sometime in 2010, she developed a sensitivity to cleaning chemicals. Her doctor initially limited her to a maximum of two hours of chemical exposure per eight hour work day. When that limitation failed to abate Horn’s symptoms, her doctor modified the restrictions to “no exposure to cleaning solutions.”

As a result, Knight Facilities fired Horn. It concluded that there was no work available to accommodate her restrictions, because the chemicals were airborne and merely working in the building resulted in exposure. Management spoke to Horn’s union rep, on Horn’s behalf, to try to find a solution before firing her, but none could be found. Notably, Knight Facilities refused to allow Horn to use a respirator, concluding that its use did not meet Horn’s restriction and, even if it did, it would cause an undue hardship because Knight Facilities would have to buy respirators for all of the other janitors.

In Horn v. Knight Facilities Management-GM, Inc. (2/25/14), the 6th Circuit affirmed the district court’s dismissal of Horn’s disability discrimination claim. In determining whether the employer could reasonable accommodate Horn’s disability, the court started, and ended, with the limitation imposed by Horn’s doctor—“no exposure to cleaning solutions.” Horn claimed that the company either should have: (1) eliminated restrooms on her cleaning route, or (2) provided her a respirator. The court disagreed:

We find that neither proposed accommodation is objectively reasonable because they both fail to comply with the physician-mandated restriction of “no exposure to cleaning solutions.” Eliminating the bathrooms on Horn’s route or assigning her to a new route without bathrooms are not reasonable accommodations because it is undisputed that Horn’s job still would have involved exposure to cleaning chemicals. Likewise, there is no evidence that working with a respirator would have complied….

Her restriction was “No exposure to Cleaning Solutions” and that would include using or touching cleaning solutions. And while Horn asserts that a respirator could have eliminated or significantly reduced her respiratory exposure, she provides no actual evidence to support this statement, much less evidence showing that a respirator would have prevented all exposure. Horn’s personal belief that she could handle cleaning solutions as long as she was wearing a respirator is irrelevant.

While the Americans with Disabilities Act  requires that you engage a disabled employee in the interactive process, as Horn illustrates, the employee’s specific medical limitations can dictate the boundaries of that interactive process and the scope of the accommodations you have to consider offering. If you legitimately cannot make an accommodation that meets the employee’s limitations, then the employee is not “qualified” under the ADA, and therefore unprotected by that law.

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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When are Preliminary and Postliminary Compensable? Supremes to let us Know (Maybe).

Yesterday, the Supreme Court agreed to hear Busk v. Integrity Staffing Solutions, to answer the following question (via SCOTUSblog):

"Whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act."

“What does this mean,” you ask? In Busk, the plaintiffs claimed their employer illegally failed to compensate them for the time they spent passing through a required security check at the end of each shift. According to the plaintiffs, employees waited up to 25 minutes to be searched; removed their wallets, keys, and belts; and passed through metal detectors. They claimed that the checks were “necessary to the employer’s task of minimizing ‘shrinkage’ or loss of product from warehouse theft.”

The FLSA, as amended by the Portal-to-Portal Act, generally, precludes compensation for activities that are preliminary or postliminary to the employees’ principal activities. Preliminary and postliminary activities—those that are “integral and indispensable” to an employee’s principal activities—are compensable. To be “integral and indispensable,” an activity both must be (1) necessary to the principal work performed and (2) done for the benefit of the employer.

In Busk, the court concluded that the plaintiffs had sufficiently alleged that the security clearances were necessary to their primary work as warehouse employees and done for their employer’s benefit. Therefore, the district court erred in dismissing the wage-and-hour claim.

This case is the second in as many years that the Supreme Court will hear on this issue. Earlier this year, in Sandifer v. U.S. Steel, the Court concluded that the time employees spent donning (putting on) and doffing (taking off) their protective gear was not compensable under their collective bargaining agreement.

There are lots of other examples of preliminary of postliminary activities that could be occurring in your workplaces besides putting on and taking off protective gear, or security screenings. For example, your employees might spend time logging on to their computers before their work days officially begin. Or they might spend time at the end of their shifts transitioning to the next shift. I am hopeful that Busk will provide employers needed guidance on the compensability of these activities.

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.