“Do You Kiss Your Mother With That Post?” Second Circuit Rules on Foul Facebook Post about Employer

Angry person behind computerThe Second Circuit Court of Appeals stepped in to support the NLRB’s finding that an employee’s profanity-ridden social media posting about his employer (and his employer’s mother) was not so offensive that it went beyond the protections of the NLRA for union-related activity. This decision again shows the wide latitude given to employees to engage in what in the past may have been considered insubordination.

The Facts.

The defendant, Pier Sixty, is a catering company. Around the time of the incident, its employees were engaged in a union organizing campaign. Mr. Hernan Perez, a server, felt that his supervisor, Robert McSweeney, had spoken to him and some other servers fairly harshly about their work. On his next break, Mr. Perez used his phone to post a charming message on his own Facebook page. The message called his supervisor a “nasty mother f*****” and went on to say “F*** his mother and his entire f***ing family” (although Mr. Perez substituted the real letters in his words instead of asterisks—this is a family-friendly blog). He ended the message with “Vote YES for the UNION!!!!!!” The post was publicly accessible, and Pier Sixty learned about it. Subsequently, Mr. Perez was fired.

Mr. Perez and the union filed unfair labor practice charges with the NLRB claiming he had been terminated for protected concerted activities. An administrative law judge found in favor of Mr. Perez, and a panel of the NLRB affirmed that decision. Pier Sixty appealed to the Second Circuit.

What the Second Circuit Said.

Pier Sixty initially argued that the NLRB decision was not valid due to the recent finding that the NLRB’s acting general counsel, Lafe Solomon, served in violation of federal law (see our related blog post). The Second Circuit dismissed this argument by finding that the defendant failed to raise that defense at the NLRB panel stage and therefore waived that argument.

The court then turned to the substance of Mr. Perez’s post and whether it should be protected. The opinion recognized that there are situations where an employee engaged in potentially protected activity under the NLRA may act in such an abusive manner that he or she loses the protection of the act. The court held that the proper standard to be used in evaluating the comments should be the “totality of the circumstances” test found in recent social media cases.

Under that standard, the court first stated that although the message was “dominated by vulgar attacks” on the supervisor and his family, the subject matter of the message included workplace concerns and was part of a “tense debate over managerial mistreatment in the period before” the union election. Second, the court found that the employer consistently tolerated profanity among its workers. Specifically, the employer had not previously disciplined employees for using the “f word” and other expletives and racial slurs. There was no evidence that Pier Sixty had ever discharged an employee solely for the use of offensive language. The court found that it was reasonable for the administrative judge to decide that Mr. Perez’s comments “were not a slur against [the supervisor’s] family, but rather, an epithet directed to [the supervisor] himself.” The court also found it significant that although no server had ever been fired for profanity before, Mr. Perez was fired only two days before the union election.

Finally, the court held that because the comments were on Facebook, it was not an outburst in the immediate presence of customers and did not disrupt any catering event. The court noted that social media is “a key medium of communication among coworkers and a tool for organization in the modern era.” The opinion also found significant that Mr. Perez mistakenly thought his Facebook page was private and took down the post three days later when he learned the public could see it. In conclusion, the Second Circuit ruled that the NLRB was not in error in finding that Mr. Perez’s post, although “vulgar and inappropriate,” was not so egregious as to not be protected under the NLRA.

Does this open the floodgates for cussing out supervisors?

Admittedly, the facts of this case would have most of the public feeling that Mr. Perez’s profanity-filled post should have gotten him fired. However, this opinion seems to show that the courts are becoming more tolerant of what, in the past, would have been considered offensive language. Part of the problem here was that the employer did not enforce any rules against profanity in its own workplace. If you don’t want your employees cussing, be sure to discipline them for doing so—especially if it is in front of customers. Another lesson from this case appears to be that the NLRB and some courts are taking the stance that social media posts are the equivalent of a worker standing on a box holding up a sign saying “union”—and that those comments, even if vulgar and insubordinate, will be allowed some protection. It looks like we may be in for some fairly interesting cases in the future—ones that may have to be edited for tender ears.

Thawing the ICE: Using Internal Audits to Reduce Form I-9 Exposure

Diverse coworkersAs the 100-day mark of President Trump’s tenure approaches, it’s clear that the new administration intends to take a tough, aggressive approach to immigration enforcement – and employers are sure to feel the heat. The President has already taken a number of measures designed to strengthen employer compliance with the H-1B and other legal work visa programs. And administration officials have repeatedly emphasized that the laws prohibiting the employment of unauthorized workers will be enforced vigorously.

Among other things, U.S. Immigration and Customs Enforcement (ICE) is expected to step up the use of Form I-9 administrative audits, its primary tool for investigating worksite immigration compliance. An employer hit with a Form I-9 audit can incur heavy fines and other sanctions if ICE finds that the employer is using unauthorized workers or has not properly completed Form I-9’s for all of its employees. As noted in a prior post, the U.S. Department of Justice recently issued a new regulation that significantly increases the fines that may be assessed for Form I-9 violations.

For this reason, you should consider conducting an internal audit of your Form I-9s before ICE shows up to investigate. A proactive audit gives an employer an opportunity to identify and correct errors in its Form I-9s and get any missing Form I-9s completed before it’s staring down the barrel of ICE’s gun. These audits, if properly handled, are viewed favorably by ICE and can greatly reduce your potential exposure. In fact, ICE has recently published guidance specifically designed to help you structure and implement these audits appropriately.

If you’re thinking about an internal audit, keep these key points in mind:

  • The individual conducting the audit needs to be thoroughly trained in Form I-9 procedures, but also independent from your regular Form I-9 verification process. Consider whether it would be best to use an in-house HR professional or an independent third party to conduct the audit. Don’t use anyone who’s involved with the routine completion of your Form I-9s and may be hesitant to address any deficiencies. And, because thorny, unanticipated issues can sometimes arise, it’s advisable for the auditor to have access to legal counsel.
  • You may audit your entire workforce or a representative sample. However, if you choose to audit the Form I-9s of some subset of your employees, be careful how you select the group to be audited. Choosing an audit pool based on citizenship status or ethnic background constitutes impermissible discrimination and must be avoided.
  • Make sure your employees are informed about the audit in advance. Explaining what you are doing, and why, before you get started can go a long way in reducing employee anxiety about the audit. A good way to alleviate your employees’ concerns is to make it clear that the audit is not government mandated, but part of your internal compliance efforts.
  • Initially, the auditor should develop a list of all current and former employees for whom the employer should have Form I-9s and compare that list to the employer’s original forms. The existing Form I-9s should then be reviewed for completeness and mistakes. If a current employee’s Form I-9 is missing—or is in such poor shape that it doesn’t actually show that the employee was verified—the employer should complete a new Form I-9. If an audit reveals that employees with temporary work authorization have not been timely re-verified, those employees should be re-verified immediately.
  • Form I-9s that are incomplete or contain mistakes may be corrected, but this should be done in a completely transparent manner. Employers should not backdate the forms or do anything—such as use white-out to correct mistakes—that might conceal the corrections. According to ICE’s published guidance, the best way to correct an error or omission on a Form I-9 is to (1) draw a line through the incorrect information, (2) enter the correct or omitted information, and (3) initial and date the corrected or omitted information. Employers are not allowed to make corrections to Section 1 of the Form I-9; if an error is discovered in that section, ask the employee to correct it.
  • Employers participating in E-Verify should understand that if an employee’s Form I-9 needs correcting – or is missing and must be completed – that does not mean that the employee should be E-Verified again. An employer’s Form I-9 obligations are separate from any obligations under the E-Verify program, and a current employee should be E-Verified only if the employer discovers that it inadvertently failed to E-Verify the employee in accordance with its E-Verify obligations.
  • Upon completion of the audit, the auditor should prepare a memorandum summarizing the entire process. In the event of an ICE investigation, this memorandum will provide valuable documentation of the employer’s proactive compliance efforts.

Given today’s immigration enforcement environment, it’s more important than ever for employers to satisfy their Form I-9 verification obligations. While an internal audit may not be a cure-all, it can help reinforce an employer’s compliance efforts and go far to reduce exposure in the event ICE comes calling.

Guess Who You Should Never Invite to Dinner? What We Can Learn From Sexual Harassment Claims in the News

Couple having coffeeSexual harassment—we have policies against it, we train people on how to prevent and report it, and yet still we have big news stories about it. In the last year, Fox News hit the headlines on this front multiple times–not only did the Chairman and CEO leave following a sexual harassment lawsuit, but now Bill O’Reilly is out in the wake of harassment allegations. Both men deny the allegations, and I have no opinion as to who is telling the truth. However, reading the various details that have come out compels me to opine about how people in power should behave at work.

A caveat: I am not here to comment on most of what is alleged against these two Fox News powerhouses. However, both cases included allegations that the person in power asked a subordinate employee to dinner, and it was perceived as a purely social invitation. Some might say what is the harm in asking a subordinate on a date? Dinner is only dinner, and we are both adults—he or she can say no. Therein could lie the problem and the point of this post.

A Quick Primer in Sexual Harassment Law

Under Title VII of the Civil Rights Act, sexual harassment is:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance or creates an intimidating, hostile or offensive work environment.

Basically, lawyers put harassment claims into one of two buckets: hostile work environment and quid pro quo. A hostile work environment may arise when a work environment has a lot of sexual comments, kidding, teasing, or worse. It can be created by anyone—boss, coworker, vendor, customer, etc.—although the cases in which the boss is the one making the sexually charged jokes or comments are harder to defend.

On the other hand, a quid pro quo claim (meaning “this for that”) typically involves someone with power requiring something of a sexual nature from a subordinate. The classic example was the casting couch—“sleep with me and I will give you the job.” What a lot of people forget is that just asking for the sexual favor (or perceived sexual favor) may be enough to support a quid pro quo claim. And what is a sexual favor? Asking someone to dinner? A single invitation may be okay, but several invitations or one invitation combined with other allegations of sexually suggestive comments or behavior may be grounds for a claim.

Here are two basic rules about social invitations to keep you out of the sexual harassment spotlight.

Rule #1: Don’t Date or Try to Date Your Subordinates.

You are the boss. When you ask your subordinate employee to a non-business related one-on-one dinner, he or she doesn’t view it as a purely social invitation—their job depends on it. You are the boss, and telling you “no” could have repercussions. You have all the power and this invitation can be viewed as an order.

Rule #2: If You Break Rule #1, It Rarely Ends Well.

The horse is out of the barn once you have asked your subordinate out on what may be perceived as a date. Let’s consider some scenarios.

Scenario A: Boss Jane asked Tom, her associate, to go to dinner. Tom either ignored the invitation or said no. No harm, no foul—right? Wrong. The next day Tom makes a mistake, and Jane chews him out for it. Jane has arguably just delivered on the implied threat that if Tom didn’t have dinner with her there would be consequences. It doesn’t matter how big a mistake Tom made, she is now potentially a defendant in a sexual harassment case.

Scenario B: Tom goes to dinner but just has dinner. He takes an Uber home with no goodbye kiss (even if Jane didn’t ask for one). Tom makes a mistake later, Jane chews him out—see Scenario A.

Scenario C: Tom accepts Jane’s invitation and thinks she is the best thing since sliced bread. He is very interested in pursuing a social/sexual relationship with Jane and so it begins. A month (or a year) later, Tom breaks it off. He makes a mistake (see Scenario A), or Jane is not as nice to him or as helpful to his career as when they were sleeping together (again, Scenario A).

So We Have to Be Robots Rather than Human Beings?

First, you can be a human being and not date your subordinates. Dating, or even attempting to date, subordinates is risky and bad HR, and your labor lawyers will tell you not to do it. Second, I am not saying that there is never a time when you and a subordinate can share a meal—even dinner. However, if you are the boss, you need to be careful both for your and the company’s sake. Some guidelines:

  • There is safety in numbers. Ask the subordinate to have dinner with you and your spouse. If the subordinate is married or has a significant other, invite both of them. If there is no spouse handy, include another colleague. Make clear that this is not a sexual overture.
  • Meet at the restaurant. Driving together to a restaurant smacks of a date and not a business relationship.
  • Lunches are safer and less likely to be misconstrued.
  • When you and a subordinate are traveling, if you can’t bring the client along, be sure to meet in the hotel lobby and not at someone’s room. Be careful about appearances, and keep it professional.
  • Have a business reason for why the dinner should occur. Dining with a subordinate without any actual connection to work can be problematic.

Whether or not your dinner invitation to a subordinate is entirely business related, you are the boss, you hold all the power in the relationship, and you are the potential target in a harassment claim. A sexual harassment claim is rarely filed only against the company—the alleged harasser is a separate defendant and could have personal liability. You need to be careful—make sure your subordinate does not misinterpret your intention, and protect yourself and your company.

And NYC Makes Three: Massachusetts, Philadelphia, and New York City Ban Salary Inquiries

New York CityNew York City will soon become the third jurisdiction to enact laws barring employers from asking a job applicant about former salaries. The goal? To eliminate one of the alleged sources of wage disparities between men and women in the workforce. NYC’s actions come on the heels of legislation in Massachusetts and Philadelphia.

The new bill, approved by the New York City Council, will amend the New York City Human Rights Law and make it illegal for an employer to inquire about the salary history of a prospective employee. The new bill will also make it illegal for an employer to base a potential employee’s salary on his or her salary history unless the potential employee volunteers the salary information. The new law will go into effect 180 days after it has been signed into law by the New York City Mayor, who has already expressed his support for the bill.

What You Can’t Do in NYC

Under the new law, an employer will be barred from:

  • Asking questions relating to a potential employee’s prior salary. Period. You can’t ask the applicant, the applicant’s current/former employer, or any current/former agent or employee of the former employer; and
  • Searching for former salary, benefits, or other compensation information through any publicly available source.

What You Can Still Do in NYC

Even under the new bill, a potential employer is allowed to:

  • Consider salary, benefits, and other compensation information if an applicant reveals this information voluntarily and without prompting; and
  • Discuss expectations regarding salary, benefits, or other compensation.

Penalties include a fine of up to $125,000 for an unintentional violation of the law and a fine of up to $250,000 for a “willful, wanton or malicious” violation. If a potential employee brings a civil lawsuit, then he or she will be eligible for back-pay, compensatory damages, and attorneys’ fees as well.

What to Do

Employers should start reviewing their policies and procedures now in order to eliminate any questions regarding salary history. Employers should also ensure that the human resources department and any employees who conduct interviews know not to raise the subject of an applicant’s current or former salary, benefits, or other compensation. You may want to train interviewers on what to do if an applicant volunteers prior salary information—to make sure that same applicant doesn’t later claim he or she was prompted to do so. Finally, you probably want to beef up your recordkeeping on why you didn’t hire someone so it is clearly not related to their prior salary or refusal to provide it.

From the Tinfoil Hat Files: Plaintiff Sleeping on the Job Claims Sensitivity to Electromagnetic Voltage

Sleeping at a desk

The 7th Circuit, in a short opinion issued April 6, zapped a plaintiff’s claim that he was terminated in violation of the ADA based on his condition of being overexposed to electromagnetic voltage at his job. Mr. Hirmiz, a desk clerk at a Travelodge hotel, was caught on video sleeping during a fight that broke out among guests in the lobby. He was fired. Mr. Hirmiz sued the hotel claiming that his employer failed to accommodate his disability–hypersensitivity to electromagnetic voltage. He also alleged that his termination was in retaliation of his filing a complaint with OSHA that the hotel had high-voltage levels. The lower court dismissed his case because he failed to show that he was actually disabled under the ADA and could not show that his OSHA complaint played any role in the termination.

Judge Posner, in a fairly short opinion, agreed with the lower court’s dismissal. He noted that there is a scientific debate about whether allergies to electromagnetic voltage are a physical disorder or a psychological one. The judge pointed out that if it is a psychological disorder, the symptoms might not rise to the level of substantially limiting a major life activity, which is required to qualify as a disability under the ADA. The analogy Judge Posner used is the fear of black cats—a psychological disorder that likely wouldn’t qualify. The 7th Circuit opinion noted that Mr. Hirmiz didn’t provide any proof to show that he was suffering from such an impairment.

On the retaliation claim, Judge Posner found that Mr. Hirmiz had not sought any accommodation for his alleged disability and didn’t file any charge with the EEOC until after he was fired. He couldn’t show any causal link between the OSHA complaint and his termination (in fact, OSHA tested the hotel and found all levels to be normal). The hotel had a valid reason, unrelated to his alleged disability, for firing him—-he was sleeping on the job. As such, the 7th Circuit affirmed the dismissal of his case.

This decision shows that although it may seem like courts take a broad view of what constitutes a disability, plaintiffs still have to meet the burden of showing that they suffer from an impairment that substantially limits a major life activity. Sometimes a sleeping employee is just that—-a sleeping employee.

Don’t Be Chatty about FMLA Leave

gossiping coworkersIf you’re not careful, a casual reference to an employee’s FMLA leave might give rise to an FMLA interference claim. A recent Florida case, Holtrey v. Collier County Bd. of Commissioners, reminds us that you can get into trouble—and violate an employee’s rights—despite proper record keeping if an employee with access to those records discloses sensitive medical information about another employee’s FMLA leave.

Basic FMLA Rules

Generally, eligible employees are entitled to up to 12 weeks of FMLA leave in a 12- month period and they get to return to their position at the end of the leave. There’s also no question that FMLA regulations  require an employer to keep confidential an employee’s medical records and information related to an employee’s FMLA leave. In fact, you must maintain medical records separately from personnel records.

So What Happened in Florida?

Keep in mind that the facts as we know them are based almost entirely on the plaintiff’s version of events. With that caveat, Scott Holtrey applied for and received FMLA leave for a chronic and serious medical condition affecting his genito-urinary system. While he was out on leave, a manager apparently chatted with several of Holtrey’s coworkers about his medical condition. When Holtrey returned from leave, coworkers made jokes and obscene gestures about his medical condition in front of him. He complained and his employer (the Collier County Board of Commissioners) failed to remedy the situation, so he filed a lawsuit claiming the board violated the FMLA when his manager disclosed his medical condition and when his coworkers teased him about it. The board filed a motion to dismiss pointing out that Holtrey got all the leave he requested.

The court denied the board’s motion to dismiss, finding that Holtrey sufficiently pled an interference claim because he alleged that the board interfered with his FMLA rights by disclosing his confidential medical information resulting in a “work environment riddled with obscene gestures and jokes at his expense.” According to the court, the issue “is whether confidentiality is a right under the FMLA and whether Defendant interfered with that right.” The court noted that district courts conflict on whether disclosure of medical information constitutes an FMLA interference claim, but went on to note that the regulations make clear that “confidentiality of medical information is a right provided and protected under the FMLA.”

Guarding Confidential Medical Information

The court hasn’t said that Holtrey wins his FMLA interference lawsuit based entirely on the supervisor’s violation of his confidentiality. It has, however, found that Holtrey’s lawsuit to test that theory can continue. How could this be prevented? Maybe Holtrey’s manager didn’t need to know what was wrong with Holtrey—just that he was approved for leave. The Holtrey case is a good reminder to make sure that employees (especially managers) are thoroughly (and frequently) trained about their FMLA obligations.

Rule of thumb: Don’t chat about an employee’s medical condition — ever.

A Diamond in the Rough (Part 2): What the Eleventh Circuit Said about FMLA Retaliation Claims

family leaveMy last post talked about Diamond v. Hospice of Florida Keys and what the Eleventh Circuit said about FMLA interference claims. As promised, this post will look at the Diamond decision’s take on the FMLA retaliation front.

Refresher on Ms. Diamond’s Case

Recall that Jill Diamond, a social worker for Hospice of Florida Keys, was approved to take intermittent FMLA leave to care for her sick parents. She took some days here and there (hence the term “intermittent”) but then took about 10 days in March and April of 2014. Although Hospice approved her leave, it asked her for receipts to prove she was where she said she was, warned her that her high use of PTO could have an impact on her employment, and gave her a detailed explanation of how her leave was compromising the quality of care. Diamond asked the company to not request documentation beyond what the FMLA allowed and for examples of the compromised patient care her leave was causing. Five days after Hospice provided this explanation (about two weeks after her last leave), Hospice terminated Diamond for poor job performance.

Although the district court granted summary judgment to Hospice on both the FMLA interference and FMLA retaliation claims, the Eleventh Circuit reversed.

Retaliation Claims in the Eleventh Circuit

The Eleventh Circuit explained that to prove an FMLA retaliation claim, a plaintiff must show that her employer intentionally discriminated against her for exercising an FMLA right—and this can be proven with either direct or circumstantial evidence. Under the circumstantial standard, a plaintiff must prove that she suffered an adverse employment decision that was causally related to her exercise of her FMLA rights. Under the familiar McDonnell Douglas standard, the plaintiff must establish a prima facie case of retaliation and then present evidence that the employer’s articulated reasons for the termination were a pretext and the real reason was retaliation.

The Court concluded that Diamond established a prima facie case of retaliation. Diamond’s termination was only two weeks after her last day of leave, which established a close temporal proximity. Additionally, the company’s behavior (e.g., negative comments about the effect of Diamond’s absences on the quality of patient care) reinforced the causal connection between the FMLA leave and her termination.

The company offered a legitimate, non-retaliatory reason for the termination decision—Diamond had “disregard[ed] a direct order from her supervisor . . . and violat[ed] Survey guidelines by leaving the premises during a State Survey without notifying the Clinical Director.” Sounds pretty good. The next question was whether Diamond could present sufficient evidence that the reasons were not true or otherwise a pretext and the real reason was retaliation.

The Court found that Diamond presented sufficient evidence of pretext to survive summary judgment. First, the two reasons (i.e., disregarding the order, leaving the premises) were not even included in the “offenses” listed in Diamond’s termination memo. Second, Diamond had never been disciplined for any of the issues listed in the memo. Third, the HR manager testified that Diamond was terminated for poor performance rather than the two offered reasons. Fourth, the company conceded that the two offered reasons, standing alone, would not support the termination—but were considered in conjunction with her poor job performance. Finally, Diamond offered the evidence of the company’s comments about how her FMLA leave was impacting patient care, which potentially connected her leave to any performance deficiencies.

So What Have We Learned?

As we all know, employees who take FMLA are in a protected classification. While you have to manage the employee’s job performance—even during intermittent leave periods—make sure you focus on the performance and clearly separate it from the leave.

Some lessons from the Diamond decision:

  • If there is a performance problem, be sure to focus on performance while the employee is at work—not what they are not accomplishing because of the leave. In this instance it appears that Hospice tried to do that—focusing on Diamond’s patient care issues, insubordination, etc.—but the court felt that the temporal proximity (two weeks) and the negative comments created a genuine issue of fact for a jury.
  • Think long and hard before you terminate an employee without some intermediate steps. If you find that the employee is stealing and you always fire thieves, fire away. If, however, you find that the employee’s job performance is not great, you may need to issue a warning or two before you terminate. Although the employee could claim that the discipline was retaliatory, it is easier to defend a disciplinary decision.
  • Put some distance between the leave and any ultimate employment action. Firing someone on the heels of leave (or any protected activity) is dangerous. Address the behavior but take a measured approach. Not only will that give the employee a chance to improve (which could happen), it will put some time between the leave and the adverse action. This is more difficult with intermittent leave—because when does the leave actually end? However, it will always play better before the court to show that you disciplined for consistent behavior or performance problems—not all of which occurred during or on the heels of leave.

If someone’s FMLA leave is “contentious”—maybe it was challenging, caused some operational problems, etc.—look closely before taking a subsequent adverse employment action. Those actions almost always end up costing more than expected.

 

Discrimination Based on Sexual Orientation is Sex Discrimination Under Title VII: Seventh Circuit Takes Clear Stand

Gay pride flagOn Tuesday, the Seventh Circuit jumped into the Title VII sexual orientation discussion with both feet. In Hively v. Ivy Tech Community College of Indiana, a full-court reversed an earlier three judge panel decision, finding that discrimination based solely upon the employee’s sexual orientation is sex discrimination prohibited by Title VII. As the opinion recognizes, this finding goes not only against the Seventh Circuit’s own past rulings, but also against opinions from almost all the other Circuits (1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 10th and 11th). In fact, two Circuits, the 11th and the 2nd, had ruled exactly the opposite in the past month.

So how did the Seventh Circuit come to this point? 

The majority opinion begins by pointing out that it does not have the power to amend Title VII, so it must look at whether the statute’s current language can be interpreted to include sexual orientation as protected. The Court pointed out that although the EEOC already has interpreted Title VII to prohibit sexual orientation discrimination, it is not bound by that agency’s position. Instead, the Court noted that while Congress may have had a certain definition of “sex” in mind when the law was passed, courts have expanded and adopted other definitions over the years—including to cover same-sex workplace harassment and discrimination based on failure to comply with gender stereotypes.

Ivy Tech did not renew the contract of Kimberly Hively, one of the professors. Hively alleged that the non-renewal was because she is a lesbian.  She offered two theories under which her sexual orientation discrimination claim should be covered under Title VII and the full Seventh Circuit agreed with both. First, under the comparative method a court would ask would the same decision have been made if she had been a man. Hively argued that if she had been a man married or living with a woman, as opposed to a woman married or living with a woman, she would not have been terminated. The Court agreed that such comparative analysis would show sex discrimination. The Court went on to note that by being a lesbian, Hively failed to comply with the female stereotype in America by not being heterosexual. While other courts (and even the Seventh Circuit panel in its earlier opinion) had held that there was a distinct line between a gender non-conformity claim and one based on sexual orientation—the Hively majority opinion concluded that no line exists —it is all sex discrimination.

Hively’s second theory was that discrimination based upon sexual orientation should be prohibited based on an associational theory. In Loving v. Virginia the Supreme Court ruled that restricting the freedom to marry solely because of racial classifications violates the Equal Protection Clause. Since the Court recognized that protection for race, then Title VII should also prohibit discrimination on the basis of national origin, color, religion or the sex of the person associating with an employee.

Finally, the Seventh Circuit discusses how their decision must be considered against the backdrop of recent Supreme Court decisions striking down statutes prohibiting homosexual intimacy (Lawrence v. Texas), statutes excluding same-sex partners from the definition of spouse (United States v. Windsor) and prohibiting same-sex marriage (Obergefell v. Hodges). The Court recognized that there is contrary authority to their current stance, but stated “this court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.”  The Court concluded that it is “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

Judge Posner has an interesting concurring opinion that delves deeper into how history and time should cause changes in statutory interpretation. The dissent follows the other circuits in holding that the courts should not change the scope of Title VII—that is up to Congress.

So what is an employer to do?

As noted in the opinion itself, this decision is currently an outlier among the federal circuits. However, it sets up a split that will almost surely have to be decided by the Supreme Court. The decision again shows that there is a fine line (one that the Seventh Circuit refused to recognize) between discrimination against someone because they do not meet a gender-stereotype and discrimination based on sexual orientation. Employers should remind everyone that all employees, male or female, should be treated equally in the workplace. We will likely be receiving clearer instructions on the definitions of claims under Title VII, but until that time, it is better to be safe than sorry.

A Diamond in the Rough (Part 1): FMLA Intermittent Leave and Interference Claims Per the Eleventh Circuit

FMLA actManaging intermittent FMLA is every employer’s nightmare (or is it just me?). Employees are entitled to take leave and operations folks find it difficult to keep the trains running on time with employees who don’t show up every day. Employers try to keep a tight rein on it— requiring employees to submit medical certifications, seeking recertification when appropriate, requiring clear recording of each FMLA absence, etc. So when does that tight rein go too far? In Diamond v Hospice of Florida Key, the Eleventh Circuit analyzes both an interference and an retaliation claim—finding the employer went too far (at least too far to get summary judgment). This post will look at the Diamond Court’s discussion of the interference claim and I will address the retaliation claim in a future post.

Facts of Ms. Diamond’s Case

Jill Diamond was a social worker for Hospice of Florida Keys. Her parents were ill, she submitted the appropriate medical certifications, and Hospice approved her to take intermittent FMLA leave. She took leave at different times from June 2013 until February 2014. So far, so good. As per company policy, Diamond used her PTO for these approved absences. Also as per company policy, because her PTO balance was getting low, Diamond got a written notice that her balance was low and continued absences could affect her employment. The notice didn’t mention FMLA—just her low PTO balance. A company witness admitted that such a notice could discourage an employee from taking FMLA leave.

When her mother’s condition got worse, in March 2014 Diamond requested and was approved for a few more days, although Hospice asked her for an updated medical certification. While Diamond was on leave, Hospice got a new HR Manager and the real issues (according to Diamond) began. Not only did the CEO allegedly warn Diamond if she worked for another company she would be out of a job, the HR Manager requested additional documentation, such as receipts for food or lodging or documents from the hospital “to verify where [she] said [she] would be.” Diamond took additional leave when her mother went into the hospital and Hospice asked for additional documentation. Hospice also noted that Diamond’s “continued unpaid time away from the workplace compromises the quality of care we are able to provide as an organization.” Hospice warned her that she might want to conserve her FMLA leave, as it was “running low.” Diamond testified that because of this warning, she did not take available leave and instead made an additional 600 mile round trip to her parents’ home rather than staying longer and providing the care the doctors said her parents needed. The HR Manager also provided examples of how patient care was suffering because of Diamond’s emergency leaves (all FMLA covered).  Five days after this explanation (about 2 weeks after her last leave), Hospice terminated Diamond for poor job performance.

Diamond sued, claiming that Hospice interfered with her FMLA rights and the retaliated against her for taking FMLA leave. The district court granted summary judgment on both claims, Diamond appealed and the Eleventh Circuit reversed.

Interference Claims are More than Just Denied Leave

The Eleventh Circuit started with an explanation of what Diamond must prove to establish an FMLA interference claim: (1) that she was denied a benefit to which she was entitled under the FMLA and (2) that she was prejudiced by the interference. In this case, Diamond got all the leave she requested and was reinstated when she returned—so what’s the problem? The Court found that interference goes beyond denying leave or refusing to reinstate. Citing the regulations, the Court found that discouraging an employee from using leave can be interference. Importantly, the employer’s intent doesn’t matter—only the employer’s conduct and whether it discouraged the employee. Finally, the Court noted that a plaintiff may not need to show denied leave or lost wages to establish prejudice from the interference. If a plaintiff got the leave (and thus did not lose wages), she can show actual monetary losses sustained as a direct result of the violation.

In Diamond’s case, the Eleventh Circuit found ample evidence for a jury to conclude that Hospice potentially discouraged Diamond from taking FMLA leave. Specifically, the Court found that a jury might find that the memo telling Diamond that her continued absences (all FMLA covered) compromised the quality of patient care could have discouraged her from taking more leave. It further noted that the requests for “proof of need”—something above and beyond what the FMLA regulations envision and which would not address whether Diamond’s parent had a serious health condition—could be found to be discouraging. Finally, the Court noted that a jury could believe Diamond’s testimony that had Hospice not been riding her about her excessive leave, she would have taken additional time off rather than make a 600 mile round trip—and award that expense to Diamond.

So What Have We Learned?

Intermittent FMLA is tough to manage. Here are some takeaways:

  • The fact that the employee got all the leave he or she actually requested doesn’t foreclose an interference claim. How you grant the leave can make a difference. If you approve the leave, make sure the supervisor or your approval memo doesn’t send a different, discouraging message.
  • You can request documentation but make sure it goes to the need for leave. You should always require medical certifications but you can’t require a doctor’s note for every absence. Think twice before requiring non-medical justifications—like food and lodging receipts—because they don’t relate to the need for leave. If you have reason to believe that an employee is lying about leave, there may be ways to get verification. In light of this decision, however, a blanket request for receipts is probably not the best route.
  • Be careful when addressing performance issues with employees taking intermittent FMLA as it can look like interference. You have to manage performance, even when someone is taking leave, but make sure that the issues are not simply about the employee’s availability or reliability (which is hard to distinguish from the leave). Focus on what the employee does when she is at work—not that she has been absent.

I’ll say it again, intermittent FMLA leave is tough to manage. Keep in mind, however, that defending an FMLA interference claims is also tough (and expensive) and with the Eleventh Circuit’s new decision elevating discouragement to interference, they just got tougher.

Blacklisting Executive Order Blacklisted

Discarded blacklist

President Obama and his EO’s

Remember the Blacklisting Order that required federal contractors to provide a rap sheet with a proposal? No? Well, President Obama issued 275 Executive Orders during his two terms on various subject matters, some of which were fairly controversial, the Blacklisting Order included. Back in 2014, he issued several high-profile executive orders focused on employment issues in particular. For example, executive orders were issued for federal contractors regarding minimum wage, affirmative action, disclosure of compensation information, and similar issues. So what happens to those EOs now? Although we can’t predict the future, we can tell you that the Blacklisting Order is gone for now.

Some Background: Fair Pay and Safe Workplaces Executive Order 13673

Executive Order 13673 (issued on July 31, 2014) was called the “Fair Pay and Safe Workplaces” order, and it required federal contractors and subcontractors to report any “administrative merits determination arbitral award or decision, or civil judgment” against them in the preceding three years that related to potential violations under the FLSA, NLRA, OSHA, FMLA, and other anti-discrimination laws. It was known as the “blacklisting” order because it required the federal contracting officer to consider such violations when awarding or extending government contracts. The order also barred contractors from imposing predispute arbitration agreements on their employees.

Successful Challenge to the Order: The FAR Rule and the Injunction

On August 24, 2016, the Federal Acquisition Regulatory Council and the Department of Labor published a final rule implementing the Fair Pay and Safe Workplaces Executive Order. The final rule required federal prime contractors and subcontractors, including federal construction contractors with contracts over $500,000, to disclose to the government labor violations occurring within an expanding lookback period. Among the labor laws listed were the Davis-Bacon Act, the Service Contract Act, the FLSA, OSHA, the Migrant and Seasonal Agricultural Worker Protection Act, and the NLRA.  The final rule, which was more than 500 pages, contained an effective date of October 25, 2016.

On October 7, 2016, the Associated Builders and Contractors (ABC) filed a lawsuit in the Eastern District of Texas to have the order and final rule declared unlawful and set aside. The ABC complaint stated that “[t]he Executive Order, FAR Rule, and DOL Guidance are unprecedented in their exercise of authority over matters previously controlled by Congress.” ABC further sought to have the regulation immediately enjoined. On October 24, 2016, the Texas federal judge granted ABC’s motion for a preliminary injunction against the reporting obligations in the new rule. The court also enjoined the restriction on arbitration agreements.

Enter the CRA and President Trump

Using a law passed in 1996 called the Congressional Review Act (CRA), in 2017 Congress immediately began reviewing regulations issued in the final months of the Obama administration. The CRA gives Congress an expedited process to revoke administrative regulations issued by the executive branch which it believes infringed when believed the regulations infringed upon the role of Congress. Although used only a few times since its passage, Congress has already invoked the CRA seven times this year. All of these actions have been signed into law by President Trump.

This week, on March 27, President Trump signed CRA legislation to repeal the Fair Play and Safe Workplaces regulations issued last August. Under the CRA, the House passed a resolution on February 2 to revoke the rule, and the Senate followed suit on March 6. With President Trump’s signature this week, the blacklisting rule finally and officially is blacklisted. In signing the CRA bill, the Trump administration commented that the blacklisting rule had been seen as one of the most significant threats to growing American businesses and hiring more American workers. We suspect that there will be more blacklisting of President Obama-era regulations in the days to come.

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