Walcheske & Luzi, LLC Employment Law Firm http://www.walcheskeluzi.com Walcheske & Luzi represents clients on employment-law related issues from discrimination, harassment, retaliation, disability, and FMLA Thu, 20 Apr 2017 16:40:46 +0000 en-US hourly 1 http://wordpress.org/?v=4.2.14 Compensatory Time Coming to a Workplace Near You? http://www.walcheskeluzi.com/blog/compensatory-time-coming-to-a-workplace-near-you/ http://www.walcheskeluzi.com/blog/compensatory-time-coming-to-a-workplace-near-you/#comments Wed, 19 Apr 2017 23:12:29 +0000 http://www.walcheskeluzi.com/?p=4093 One of the intriguing employment law proposals making its way through Congress is the Working Families Flexibility Act of 2017. The bill, introduced in the House of Representatives as H.R. 1180 on February 16, 2017, and its counterpart in the Senate as S. 801 on April 3, 2017, would allow private sector employees to choose between receiving overtime pay as everyone is accustomed to currently or receive compensatory time consisting of paid time off at a rate of one and one-half hours for every hour worked over forty hours in a workweek.

While presenting flexibility with respect to overtime pay, employers would need to take care to comply with all of the WFFA’s requirements. For example, the WFFA directs any employer to secure the employee’s written (“or verifiable”) agreement to receive compensatory time in lieu of monetary overtime compensation and the employee’s certification that such agreement was entered into knowingly, voluntarily, and not as a condition of employment. The bill also places other limits on compensatory time, such as limiting accrual of compensatory time to 160 hours. Employees must also have worked at least 1,000 hours during a continuous period over the 12-months prior to agreeing to receive compensatory time off to be eligible for it, meaning many seasonal employees likely will not be eligible for compensatory time under the WFFA.

Some may recall that the WFFA was first introduced in Congress back in 2013. However, President Obama threatened to veto the bill shortly after its introduction and it never made any headway in the Senate under leadership at the time. However, with Republicans in control of the Senate, House of Representatives, and the White House, the bill has new life this time around. In the Senate, the bill would require some Democratic support to overcome current filibuster rules. In an election year, however, the WFFA may be one of those rare employment laws that finds bipartisan support. With the confirmation of Justice Gorsuch to the U.S. Supreme Court, the Senate has also shown a willingness to change similar filibuster rules.

Even if it passes, the WFFA may not provide immediate flexibility for Wisconsin employers. Wisconsin law currently provides similar overtime requirements to that provided under the federal Fair Labor Standards Act. The WFFA does not address such state laws and it would likely take a change at the state level to make federal and state rules consistent with each other.

Of course, all of this congressional activity comes while questions remain over the status of the Obama administration’s overtime regulation changes. While currently still on appeal before the Fifth Circuit Court of Appeals, the Department of Labor recently requested a third extension until June 30, 2017, to file a reply brief so that Secretary Nominee Alexander Acosta could be confirmed and consider the case. Acosta is expected to be confirmed by the Senate after Congress returns from recess on April 24, 2017. During his confirmation hearings, Acosta expressed a desire to update the salary threshold that is the subject of the DOL litigation but also acknowledged the stress that the salary doubling of Obama’s regulations placed on employers. Needless to say, the chances are high that some change will occur to overtime laws as we know them in the near future.

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Seventh Circuit Declares Sexual Orientation Protected by Title VII http://www.walcheskeluzi.com/blog/seventh-circuit-declares-sexual-orientation-protected-by-title-vii/ http://www.walcheskeluzi.com/blog/seventh-circuit-declares-sexual-orientation-protected-by-title-vii/#comments Wed, 05 Apr 2017 18:26:09 +0000 http://www.walcheskeluzi.com/?p=4075 In a historic decision yesterday, the Seventh Circuit determined in Hively v. Ivy Tech Community College (opinion here) that sexual orientation is a protected category under Title VII. In doing so, the Court bucked the legal trend, gave landmark rights to the LGBT community, and for those of us in Wisconsin, opened another forum for plaintiffs. Let’s break it down. DJ!

A Bit of Background

Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, religion, national origin, and, of most import here, sex. Historically, “sex” did not include sexual orientation, though it has been interpreted to include “sex stereotyping” or “gender nonconformity,” which essentially means discrimination against someone based on their sex because their conduct seemingly did not conform to their sex (examples as stated by Judge Posner: “effeminate men” or “mannish women”).

For the last two years, the EEOC has been efforting to include sexual orientation within “sex” under Title VII – a position it itself adopted – but was having no luck. In fact, every other federal appeals court that has ruled on the issue disagreed with the EEOC. For example, just within the past couple of months two circuits – the Eleventh Circuit in Evans v. Georgia Regional Hospital (opinion here) and Second Circuit in Christiansen v. Omnicom Group, Inc. (opinion here) – found that Title VII’s definition of “sex” did not include sexual orientation.

The Court’s Decision

Initially, the Seventh Circuit agreed with those other circuits; however, Hively petitioned for and the Court allowed rehearing en banc, meaning that the parties re-argued the case before the entire Court, rather than a three-judge panel. It’s generally not a good sign for the “prevailing” party when that happens and here it was no different.

In a departure from the three-judge panel’s initial determination and the determinations reached by every other circuit, the Seventh Circuit concluded “that discrimination on the basis of sexual orientation is a form of sex discrimination.” In reaching this conclusion, the Court determined there is no difference between “gender nonconformity” claims and discrimination based on sexual orientation. Specifically, the Court stated:

Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a women (or in some cases, for a man).

The Court further elaborated on how sexual orientation discrimination bears similarities to and falls within associational discrimination:

It is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits. This line of cases began with Loving, in which the Supreme Court held that ‘restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

Guidance time. If the history of all of this makes your eyes gloss over, there is one thing you absolutely need to take away from the Court’s decision and that’s how it now defines sex discrimination:

Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.

Now that was the majority’s view and for those who live or work in Wisconsin, Indiana, and Illinois, that’s now the law. But it’s worth noting that three judge dissented and it was for the same reason that multiple other circuits have refused to include sexual orientation in “sex”: it’s a decision for Congress, not for the courts. According to those judges, “We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.” In short: courts aren’t supposed to legislate from the bench. Sounds like something that would resonate well with conservatives on the Supreme Court.

So Now What?

Well, for starters, in Wisconsin your workplace and work-related decisions should remain unchanged, unless of course you missed the boat on the fact that sexual orientation is a protected category under the Wisconsin Fair Employment Act. If that’s the case, see me in my office immediately. Under the Act, sexual orientation is defined as “having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.” In Wisconsin it’s therefore been unlawful for an entity to take an adverse action against an individual because of his or her sexual orientation. So, while this is nothing new, it does mean that plaintiffs can now bring their sexual orientation claims in (the always more expensive) federal court with the full blessing of the Seventh Circuit. So, these claims can now be much more costly to defend against – something to consider.

It also remains a possibility that Ivy Tech appeals to the Supreme Court to solve what is now a circuit split on the issue. Whether it does so or not has yet to be seen, but it likely would not be a solid PR move on its part.

It’s also possible that in reaction to the Seventh Circuit’s decision, the Eleventh and Second Circuits’ recent decisions noted above are re-heard en banc, as was the case in Hively and, if so, whether they go along with the majority or the dissent. Either way, it will be interesting to see whether other circuits follow in line with Hively (which is pretty likely) or continue denying coverage to sexual orientation.

Finally, Congress could foreclose on any of these remaining questions by amending Title VII. At present, no legislation is pending that would do so, but it’s always possible.

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Congress Poised to Add a New Reason for FMLA Leave in 2017 http://www.walcheskeluzi.com/blog/congress-poised-to-add-a-new-reason-for-fmla-leave-in-2017/ http://www.walcheskeluzi.com/blog/congress-poised-to-add-a-new-reason-for-fmla-leave-in-2017/#comments Wed, 29 Mar 2017 13:25:17 +0000 http://www.walcheskeluzi.com/?p=4072 While adding a new employment entitlement would seem unlikely given the current political makeup of the federal government, both the United States House of Representatives and the Senate appear ready to do just that with the Parental Bereavement Act of 2017. This Act would add “the death of a son or daughter” as a qualifying reason for leave under the Family and Medical Leave Act (FMLA).

The Parental Bereavement Act of 2017 was introduced in the House on March 16, 2017, and a companion bill was introduced in the Senate on March 6, 2017. While the Senate version currently enjoys support on only one side of the aisle, the House bill has bipartisan support making it a real possibility.

Readers will recall that to be covered under the FMLA, a private employer must employ 50 or more employees in a 75 mile radius. Additionally, an employee must have worked for the employer for at least 12 months and have worked at least 1,250 hours during the 12 months prior to leave to be eligible for it. Under current law, an eligible employee who works for a covered employer is entitled to up to 12 workweeks of unpaid leave for the birth or adoption of a son or daughter, to care for an immediate family member with a serious health condition, or for the employee’s own serious health condition.

The decision to offer bereavement leave or funeral leave is largely a matter of company discretion in the United States. Although there is no state requirement in Wisconsin, it may be in other jurisdictions. For example, Oregon’s Family Leave Act includes bereavement of a family member as a qualifying reason for leave. Illinois also grants qualifying employees up to two weeks of leave for the death of a child under its Child Bereavement Leave Act. The introduction of the Parental Bereavement Act of 2017 also follows the announcement by Facebook COO Sheryl Sandberg that the company would begin to offer employees leave of 20 days for the death of an immediate family member and 10 days for the death of an extended family member.

Employers in jurisdictions that do not require bereavement leave for the death of a family member should still be vigilant with other potential, related compliance needs. For example, an employee’s depression following or concurrent with a death in the family may be considered a disability under the Americans with Disabilities Act and require a limited period of leave as an accommodation. Or, a family member may suffer a similar mental health condition that qualifies as a serious health condition requiring leave under the FMLA. Employers should consider whether these alternative protections could apply before outright denying a request for bereavement leave.

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Is A Defend Trade Secrets Act Seizure Order Rarer Than a Bears Super Bowl Victory? http://www.walcheskeluzi.com/blog/trade-secrets-act/ http://www.walcheskeluzi.com/blog/trade-secrets-act/#comments Wed, 22 Mar 2017 22:00:12 +0000 http://www.walcheskeluzi.com/?p=4070 Last year on May 11, 2016, the federal government waded into the trade secret pool and passed the Defend Trade Secrets Act. One of the unique features of the federal law that made it distinct from state laws and drew significant interest was the civil seizure order provision. That is, the DTSA allowed a plaintiff (usually a business alleging misappropriation of a trade secret) to ask a federal court for an order to seize property to stop the spread or use of a trade secret. However, a party asking for such an order has to demonstrate “extraordinary circumstances” that make the order necessary.

Now that it has been nearly a year since the DTSA become law, a seizure order under the DTSA is proving to be extraordinarily difficult to obtain. Take, for example, the recent decision in OOO Brunswick Rail Management v. Sultanov, 17CV0017 (N.D. Cali. Jan. 6, 2017). There, the plaintiff brought a trade secret lawsuit against former employees. The company alleged that the defendants were engaged in suspicious activity such as sending, deleting, and emptying the trash on a series of e-mail communications and communicating with parties that one defendant was explicitly prohibited from contacting. One defendant even refused to return a company-issued mobile phone and laptop.

Despite even the failure to return company property, the court did not grant the plaintiffs’ request for a seizure order under the DTSA. The issue stopping the court was the fact that the DTSA does not allow a seizure order where an injunction or restraining order under Federal Rule of Civil Procedure 65 is adequate. Here, the court’s order included requiring the defendant to turn over the devices at issue to the court at a future hearing date and prohibiting them from being accessed or modified in the meantime. (Note: the court later dissolved its temporary restraining order.)

Thus, it would seem from the OOO Brunswick Rail Management decision that the court was willing to rely on its command that a plaintiff preserve evidence to satisfy the concerns of the plaintiff seeking the seizure order. Most parties in the Seventh Circuit may encounter a similar response without an ability to demonstrate a unique concern. The Seventh Circuit Electronic Discovery Pilot Program generally promotes the use of “preservation orders” by courts in the principles listed in its proposed standing order.

Further, to the extent courts are granting requests to seize electronic devices, they are still relying on FRCP Rule 65 rather than the DTSA. For example, the Northern District of Indiana court in Magnesita Refractories Co. v. Mishra, upheld its own decision, on what essentially was a request to reconsider, to seize the laptop of an employee allegedly misappropriating trade secrets from his current employer. In an order of January 25, 2017, the court reasoned that its seizure order was appropriate under Rule 65 and rejected that the heightened requirements of the DTSA applied. For support, the court cited other decisions following passage of the DTSA in Earthbound Corporation v. MiTek USA, Inc. (W.D. Wash. Aug. 19, 2016) and Panera, LLC v. Nettles (E.D. Mo. Aug. 3, 2016).

So what is answer to this blog post title? Yes, a DTSA trade secret order appears to be rarer than the Chicago Bears lone Super Bowl title. When asked to seize electronic devices to preserve evidence related to allegations of trade secret misappropriation, courts prefer to rely on FRCP Rule 65 rather than the DTSA. While the DTSA provided a new way to secure property containing trade secret information, one year after its passage courts have been reluctant to rely on it to seize property. To obtain such an order under the DTSA, a party may need to be prepared to demonstrate that preservation is not enough and that permanent or long-term seizure is needed to make sure the trade secret stays protected and undisclosed. Thus far, no court appears to have been presented with facts to convince it a DTSA seizure order is appropriate.

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Be Careful Before Taking a CIA Approach to Investigate FMLA Abuse http://www.walcheskeluzi.com/blog/fmla/ http://www.walcheskeluzi.com/blog/fmla/#comments Wed, 08 Mar 2017 17:47:13 +0000 http://www.walcheskeluzi.com/?p=4067 WikiLeaks made rather shocking news yesterday with the publication of documents purportedly showing that the CIA possessed the tools to turn common household and personal goods into surveillance vehicles. For example, one tool could make certain smart televisions appear to be off but actually be recording and sending the surrounding conversations to the CIA.

This relates to a common question employers ask related to surveillance: what can I do to investigate an employee who claims to need Family and Medical Leave Act leave but I have reason to believe they’re really just skipping out on work? While the answer to this question could go in any number of directions, a good starting point to understand common compliance issues is the case of Turner v. Parker-Hannifin Corporation, (W.D. Mich. April 12, 2012).

In Turner, the plaintiff performed manual labor for the employer. Prior to his litigation against the employer, the plaintiff was most recently granted continuous FMLA leave related to a back strain, but in years past he also used intermittent FMLA for his diabetes. After a period of continuous FMLA leave following a hunting trip and a history of using intermittent leave near weekends and holidays, the employer began to suspect abuse. The company decided to hire a private investigator to conduct an investigation into what the plaintiff did while on FMLA leave.

The investigator’s report to the company showed that the plaintiff was hunting during the time he was on FMLA leave. Acting on this report, the employer terminated the plaintiff’s employment for his dishonesty and his violation of its code of conduct. Of course, the plaintiff subsequently filed a lawsuit with claims of FMLA interference and retaliation.

When I talk about this case with audiences (quick plug – sign up for our upcoming seminars here and here!), it never fails to surprise them to learn that the judge denied the company’s motion for summary judgment in this case. The court essentially had two major issues with the employer’s course of conduct here.

First, the information the company received from the investigation report did not indicate whether the employee’s “activities were inconsistent with the restrictions placed on him by his doctors.” All the report revealed was that the plaintiff walked into the woods with a gun. It did not comment on whether he was doing things related to his need for FMLA leave and his job like heavy lifting, bending, or twisting. Without having more information, the court determined a jury should decide whether the company was correct to determine that the plaintiff having gone hunting demonstrated his ability to work.

Second, the court determined there was evidence to support the conclusion that the company was targeting the plaintiff because of his FMLA leave. The plaintiff demonstrated that the employer did not typically use surveillance on employees who took FMLA leave. The plaintiff also presented several e-mails showing the plaintiff’s superiors were frustrated by the number of FMLA leave days he took. These e-mails led the court to decide that a jury could conclude the plaintiff’s prior FMLA use influenced the company’s decision to terminate his employment.

There are two important lessons from Turner for employers considering using surveillance methods to root out FMLA abuse. While employers can rely on investigations to find out whether employees are being honest (and can make decisions to discipline or end employment based on dishonesty), employers need to make sure they have good information that is relevant to the certification for FMLA leave before taking an adverse action. In other words, can you answer whether what the employee is doing on FMLA leave is allowed by the restrictions that are leading to the need for FMLA leave?

Additionally, Turner emphasizes the need for a consistent approach when responding to suspected FMLA abuse. If an employer is undertaking a unique response to an employee’s use of FMLA leave, it can raise some eyebrows. Employers may need to consider asking some self-critical questions about how and why it is responding before acting to avoid claims of interference or retaliation.

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Responding to “Leaks” in the Workplace http://www.walcheskeluzi.com/blog/leaks/ http://www.walcheskeluzi.com/blog/leaks/#comments Mon, 27 Feb 2017 17:12:05 +0000 http://www.walcheskeluzi.com/?p=4064 Last week, President Trump made news when he decried “leaks” of information to news media that allegedly occurred within other federal intelligence agencies. Now, while not many employers have to worry about leaks within their business related to matters of national security, most (if not all) companies have information that they would rather not get out into the open.

Such public displays of private information can run a gamut of potential consequences. For some information, it may place the company in a negative light. For other information, it may have grave consequences on the viability of the business. This begs the question, what are some of the more common issues and how should employers respond?

Trade Secrets and Confidential Information

We’ll start with disclosures that are most likely to have the most critical impact on any employer. I refer to confidential information here as the stuff companies want to keep private, but it does not rise to the level of trade secret. It is not protected by law but an employer can help protect it by entering into private agreements with employees. Trade secrets, on the other hand, are information that has real or potential economic value because it is not generally known to the public and is the subject of reasonable efforts to maintain its secrecy. Qualifying trade secrets are protected from misappropriation by state and federal law.

Employers can discipline employees for violating policies and agreements concerning confidential and trade secret information. In the case of trade secrets, a “leak” should be met with appropriate discipline to ensure protection of the trade secret. Without any response, the company may risk statutory trade secret protections. Legal cases based on trade secret claims often hinge on whether the company undertook reasonable efforts to maintain secrecy. Failing to discipline an employee who discloses trade secret information may leave the company open to arguments that it did not practice these necessary efforts. Additionally, the business may risk losing the argument that the information is not generally known to the public. Thus, “leaks” in this regard may compel an employer to provide a significant response.

False Claims Act and SOX

Any employer doing business with the federal government should become familiar with the False Claims Act. Claims under this law, otherwise known as qui tam lawsuits, are essentially a complaint brought by (usually) an employee alleging the defendant is defrauding the government. Here, a “leak” would take the form of a federal court complaint as the plaintiff only stands to recover if the information is not publicly known prior to the lawsuit.

Similarly, employers with businesses regulated the Securities and Exchange Commission should become familiar with the Sarbanes-Oxley Act of 2002 (SOX). Relevant “leaks” under SOX can take the form of reports to a regulatory or law enforcement agency, members or committees of Congress, or an investigating supervisor.

Unlike dealing with disclosures of confidential or trade secret information, employers who are addressing a complaint under the False Claims Act or SOX should proceed cautiously. This is because these laws include protections from retaliation, which can take the form of termination, demotion, suspension, harassment, or many other actions. For example, if a False Claims Act plaintiff is found to have been terminated for reporting the fraud, the employer may be ordered to reinstate the employee and pay double the employee’s lost wages as damages.

Retaliation for Opposition and Other Laws

Like the False Claims Act, a host of workplace-related laws prohibit retaliation against employees who engage in what is deemed “protected” conduct. Laws like Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act and the Genetic Information Non-Discrimination Act include protections for employees via their respective “opposition” and “participation” clauses. The opposition clause prohibits discrimination because an individual opposed any practice made unlawful by the respective law. The participation clause prohibits discrimination because the individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the respective law.

Relevant to this discussion, a “leak” may take the form of an employee engaging in “opposition” to allegedly unlawful conduct. The EEOC, in its recently released enforcement guidance on retaliation, highlights that raising complaints to individuals outside the employer or publicly raising complaints, such as engaging in picketing to oppose a violation of law, has been found to be protected activity. Discipline, termination, or other adverse actions taken in response to such protected “opposition” activity are likely to lead to a charge of discrimination. Employers need to proceed cautiously where these circumstances are present so as to not run afoul of these laws.

Social Media

This may be the most common form of “leaks” for employers to address. There are many stories of employees taking to social media to discuss work. Sometimes, this can result in employees discussing confidential or trade secret information about work. More often the case is that employees are discussing what is happening at work that an employer may prefer to stay out of the public view.

Before responding to a social media leak, employers should consider whether the post, tweet, or update concerns the terms or conditions of employment. That is, if an employee is discussing such topics as how much they are paid, how they are treated by a supervisor, the hours they work, or other related matters, the social media post may be protected by the National Labor Relations Act as Section 7 activity.

For example, in the case of Triple Play Sports Bar and Grille v. NLRB, employees engaged each other in a social media post concerning the employer’s tax withholdings on employee paychecks. The Second Circuit Court of Appeals agreed with the NLRB’s conclusion that the post and subsequent employee “likes” were protected, concerted activity under the NLRA, and discharging the employees for this social media activity was deemed unlawful. Here again, social media is another area where care must be taken before responding to employee leaks on social media.

Employee “leaks” of private information are not exclusive to the federal government. They can cause trouble for any workplace and may even have critical effects on information that enjoys strong legal protections. How and when an employer should respond is different in each scenario, but any leak should be carefully examined to stay in compliance with state and federal employment laws.

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Three Questions to Ask Before Responding to Controversial Employee Tweets http://www.walcheskeluzi.com/blog/tweets/ http://www.walcheskeluzi.com/blog/tweets/#comments Fri, 17 Feb 2017 00:42:38 +0000 http://www.walcheskeluzi.com/?p=4039 Anybody with a Facebook, Twitter, or other social media account has likely witnessed a flurry of political-related activity from friends and family over the past month. Usually this is a topic that comes up during election season, but this year is proving different. Down to the minute, many social media members are expressing opinion after opinion through posts and tweets about the latest developments from President Trump’s administration.

Inevitably, many employers have some of the more provocative social media activity of employees brought to their attention. In some cases, employers may be asked or feel compelled to respond through an adverse action. Even Saturday Night Live isn’t immune in this respect, as it recently suspended a writer over a Trump-related tweet.

Before any employer reacts to an employee’s social media post with discipline or discharge, there are a few basic questions to consider. Of course, every situation is unique, but these “starter” questions highlight some of the main concerns that every employer should consider before reacting to employee social media.

  1. Is the post about the employee’s work?

Employees often take to social media to comment on how they are treated on the job, how much they are paid, and a host of other work-related topics. If a social media post concerns something related to work, the employee could be protected under the National Labor Relations Act or NLRA.

The NLRA, which is the federal law that applies to unions in private workplaces, contains certain protections for employees regardless of whether there is a union in the workplace. Lawyers often refer to these protections as Section 7 rights. They give employees the right to engage in protected, concerted activity. In other words, when employees are participating in a social media conversation or one employee is trying to get others to participate in a social media conversation regarding work, the employees could be engaging in activity that is protected by federal law.

The National Labor Relations Board, which administers the NLRA, has maintained a high interest in cases involving social media and protected, concerted activity. Any employer should find out whether its response may implicate the NLRA before taking an adverse action in response to a social media post.

  1. Is the post about the employee?

Federal law protects individuals from an adverse employment action on the basis of age, disability, genetic information, harassment, national origin, pregnancy, race, religion and sex. These categories are otherwise known as protected classes. The same federal laws also include protections from unlawful retaliation. Generally speaking, unlawful retaliation occurs when an employee suffers an adverse action at work because the individual opposed unlawful discrimination in the workplace or participated in a procedure related to prosecuting a discrimination claim. State and local laws can add significantly to the number of protected classes in your local jurisdiction.

Much of the recent high-profile political activity has concerned issues potentially related to protected class status. For example, President Trump’s executive order on immigration incited a flurry of social media protests. An employer responding to an employee’s post identifying his or her national origin as a basis for opposing political action could land the employer in hot water. Likewise, when an employee relates a political topic to his or her opposition to alleged discriminatory activity, it could also be problematic for the employer. None of this is to say that unlawful discrimination has actually happened, but it may invite the interests of federal and state agencies that investigate employment discrimination claims. In other words, political posts that bring the issue back home to the person or workplace should be treated with care.

  1. How was the post obtained?

A social media post can be so controversial that an employer may not consider how it came to the attention of the company. Two laws are important in this regard.

First, in Wisconsin, like many other states, a recently passed law prevents employers from requiring an employee to disclose his or her user name and password information to a social media account. The law also prohibits an employer from requiring the employee to pull up his or her social media account so it can be reviewed by the employer. This law, known as the Wisconsin Social Media Protection Act, essentially limits how employers can obtain information from personal social media accounts.

Second, a federal law, known as the Stored Communications Act, arguably requires an employer to obtain authorization from an individual before accessing a social media account. The difficult situation where this can most foreseeably arise is where employees save their user name and login information to an electronic device, such as a computer or laptop, which the employer can access. That is, just because someone only has to click “login” or “enter” to gain access to a social media profile, does not mean that they have the authority to access that account.

What is the solution? Relying on information that other employees, who are connected on social media to the employee in question, voluntarily bring forward to the employer’s attention will not run afoul of these laws. For the Stored Communications Act, this has been referred to by courts as “the authorized user exception.”

While these three questions won’t give you all the answers, they are a good start.

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Recent Political Events a Strong Reminder for Employment Law Training http://www.walcheskeluzi.com/blog/recent-political-events-a-strong-reminder-for-employment-law-training/ http://www.walcheskeluzi.com/blog/recent-political-events-a-strong-reminder-for-employment-law-training/#comments Thu, 09 Feb 2017 20:53:58 +0000 http://www.walcheskeluzi.com/?p=4027 Of course, you’d have to live in the deepest of caves to not be aware of recent, major political stories concerning President Trump’s executive orders and other actions. More specifically, just days into his administration, President Trump’s executive order regarding immigration stirred protests across the country. Still, the most recent polling data shows that Americans are fairly equally divided on approval of President Trump’s biggest headline-making action. A poll released Wednesday, February 8, 2017, showed that 55% of voters either approve or strongly approve of President Trump’s controversial immigration executive order.

Polls such as these demonstrate that the chances are pretty good your workforce is just as divided over these issues. Moreover, at least a part of your workforce likely consists of one or more individuals who were born in another country. In 2015, around 16.7% of the U.S. labor force consisted of foreign-born persons according to the Bureau of Labor Statistics. Numbers such as these go to show that there are likely people who are directly or indirectly affected by these issues and certainly people who are passionate on both sides.

Ok, get to the point. What I mean to communicate with this post is that now more than ever employers need to be mindful of supervisor and other employee training on discrimination and harassment on the basis of protected classes established by federal, state, and local laws. More specific to recent headlines, national origin discrimination is prohibited by Title VII of the Civil Rights Act of 1964 and the Wisconsin Fair Employment Act. These protections for individuals include barring a hostile work environment against individuals based on their national origin. In politically divisive times such as these where individuals can get carried away and may escalate political topics into offensive conduct, it is important to be proactive and take steps to maintain a respectful workplace.

The U.S. Supreme Court has recognized that employers cannot always control everything that happens in their workforce. That is why discrimination and harassment training is critical to what is known as the FarragherEllerth defense. In each of these cases, the Supreme Court laid out two elements to avoid liability in the face of hostile work environment claims:

The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Two critical components of this defense are employer policies and training. First, employers should clearly identify for employees that the employer does not tolerate unlawful discrimination and harassment. Any policy should also provide a reporting and investigation procedure for individuals to go to when they feel something in violation of the policy has occurred. Two, don’t just sit on your policy. Annual supervisor training should be conducted at minimum. Supervisors are where the rubber meets the road for any workplace. These individuals should have some guidance to identify what is unlawful and needs to be reported. A better practice is to remind all employees of the policy and reporting procedure on a regular basis. This training can be conducted by knowledgeable human resources staff, if available, or your favorite attorney who is knowledgeable about these issues and relevant laws.

While every circumstance that is the subject of litigation is unique, proactive employers that aim to avoid employment law claims should make employee discrimination and harassment training a standard practice. This serves as a reminder to employees that while we all hold different opinions on political topics, it is not acceptable to create an offensive work environment on protected classes such as where a person came from.

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Starting 2017 Off Right With A Compliance Bonanza! http://www.walcheskeluzi.com/blog/compliance/ http://www.walcheskeluzi.com/blog/compliance/#comments Tue, 31 Jan 2017 19:37:34 +0000 http://www.walcheskeluzi.com/?p=4001 The beginning of the year is a crazy time and compliance issues like policy review and employee handbook edits are usually first to take a back seat. But, the start of a new year is actually the best time to kick your compliance-slacking in the rear and get your company set for the year ahead. So block some time on your calendar, grab your handbook and policies and the largest coffee you can get your hands on, and let’s get on with the BONANZA!!!

The latter half of 2016 was chock-full of guidance from our favorite government agencies. Here’s a rundown of releases to make sure you’re up-to-date with those who will not-so-kindly let you know if you aren’t:

  • The Department of Labor:
    • Issued its Final Rule requiring federal contractors to provide paid sick leave to employees who work on or in connection with certain federal contracts
    • Created a new resource to help prevent misclassification issues (aka, and most frequently, misclassifying an employee as an independent contractor). This issue comes up a lot, so definitely worth checking out, particularly if you’re a small business who hasn’t hired many individuals or a new business looking at hiring its first employees.
  • The Occupational Safety & Health Administration:
    • Issued new policy guidelines on provisions in settlement agreements that restrict whistleblowing. In a nutshell, it states “OSHA will not approve a ‘gag’ provision that prohibits, restricts, or otherwise discourages a complainant from participating in protected activity,” defining “protected activity” to include “filing a complaint with a government agency, participating in an investigation, testifying in proceedings, or otherwise providing information to the government.” Super.

BONUS!!!

Don’t forget that as of January 22, 2017 (aka, last week Sunday) you should have started using the IRS’s new I-9 Employment Verification form.

Also, if your company employs 100+ employees or is a federal contractor or first tier subcontractor with 50+ employees and a contract/subcontract of $50,000+, don’t forget that starting March 2018 (yes, 2018, not 2017), you’ll be required to file a revised EEO-1 survey, now including pay data (which will be kept confidential). Here’s the EEOC’s press release on the change, as well as its Q&As about the change.

 

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The FMLA Problem When an Accommodation is Gone in the Wink of an Eye http://www.walcheskeluzi.com/blog/the-fmla-wink-of-an-eye/ http://www.walcheskeluzi.com/blog/the-fmla-wink-of-an-eye/#comments Tue, 24 Jan 2017 18:25:17 +0000 http://www.walcheskeluzi.com/?p=3998 Typically, we write about telecommuting or work-from-home arrangements as a potential reasonable accommodation under the Americans with Disabilities Act. But the Seventh Circuit recently demonstrated why employers need to be careful with such arrangements even in the Family and Medical Leave Act (FMLA) context in Wink v. Miller Compressing Company.

In Wink, the employee had an autistic son for whom she was certified for FMLA intermittent leave to attend medical appointments and therapy. After the employee’s son was expelled from his day care, the company and employee agreed to an arrangement where she could work from home and report any time needed to care for the son as FMLA leave.

Several months after this arrangement was put into practice, the company decided that no employees would be allowed to work from home. At the same time that the company required the employee at issue to return to the office full-time the following week, a human resources representative falsely told the employee that the FMLA law covers leave for doctors’ appointments and therapy only. Because the employee could not find care for her autistic child, she remained home and was terminated by the employer.

As for the FMLA, the employee brought claims that the employer interfered with her right to leave and retaliated against her for exercising those rights. The Seventh Circuit upheld the jury’s verdict for the employee on the retaliation claim, reasoning:

As she was a valued and experienced employee who had worked for the company at home two days a week since February without the company’s complaining, the company had no compelling reason to fire her. Maybe, because of its financial troubles, it would have had to lower her wage, on the plausible supposition that an employee is likely to do less work for her employer at home than in the office – in Wink’s case if only because her child might take more than the allotted time (two hours a day) to be cared for by her. But that is not argued here.

In sum, the lack of compelling reason to change the agreed arrangement and the false line regarding FMLA leave rights doomed the employer.

(Note for audience members who are litigators, this case is also a worthwhile read as it relates to the award of attorney’s fees.)

What is the lesson from this case? Anytime an individual is exercising a right that is protected by law, careful attention needs to be given when making any changes to the terms and conditions of employment. An employer should be able to identify a legitimate, nondiscriminatory reason for its decision. Any change in terms and conditions that cannot be supported with a good reason is potentially open to a claim for retaliation related to the protected activity. In this case, the employer’s failure to present a compelling reason allowed for an inference of retaliation. The misinformation the human resources representative provided regarding FMLA leave rights was likely the final chip that helped the jury to conclude there was an unlawful motivation at issue.

 

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