Monthly Archives: February 2013

Discrimination is Legal


People tend to get fired up about discrimination at work. But they all too often get fired up about the wrong kinds of discrimination. It’s perfectly legal for supervisors, human resources managers, and every other level of employee to discriminate based on legal factors. If your boss loves the Redskins, he can axe all of the office’s Cowboys fans. Is it discrimination? You bet. Is it illegal discrimination? Nope.

tall short

This principle went viral last year when an Iowa dentist fired his dental assistant because she was so attractive he feared he may cheat on his wife. The Iowa Supreme Court ruled 7-0 that it was just fine (legally, at least).

As a helpful reminder, AOL runs down a reminder list of seven perfectly legal (in most places) forms of discrimination based on a person’s appearance.

  1. Too attractive
  2. Too ugly
  3. Too fat
  4. Too thin
  5. Wrong Clothes
  6. Too short (and too tall)
  7. Too young

Unless one of these “appearances” is caused by a disability or is applied in a discriminatory way across genders or races, they are all legal reasons to hire, fire, demote, promote, or harass someone. So remember that discrimination itself is not illegal or even wrong in most cases–most people would probably discriminate in favor of a licensed doctor performing surgery on them–you just need to me mindful of the specific types of discrimination that are banned.

The implications can still be tricky. For example, if all your line workers wear a specific color shirt to collectively protest their low wages, that could be protected activity under the National Labor Relations Act. Or if you fire anyone who drives a blue car, knowing that only your three employees 65 and up drive them, you would have an age-discrimination claim on your hands. So it may not be a good idea to discriminate based on arbitrary factors, but there’s no reason to fear the word “discrimination” itself.


Growing Complexity Is Big Win for HR Managers

What do the ADA, ADAAA, FMLA, Title VII, ADEA, WARN, FLSA, GINA, HIPAA, ERISA, EPA, PPACA, NLRA, and USERRA all have in common (aside from taking up an entire grocery aisle of alphabet soup)?

alphabet soup

They should be keeping your human resources department very, very busy.

In that case, an aptly titled article called Employment Laws Keep Changing; So Should Your Employee Handbook should spell great news for at least one person: the HR manager. Employers are facing rapid-fire changes that should be keeping human resources departments churning out new versions of the employee handbook as fast as they can type. 

Failing to keep pace is not a viable option, especially with the spread of social media and its corporate use. Employers are facing new gray areas every day as the NLRB dispenses guidance on Facebook and companies grapple with the ownership of their employees’ Twitter followers. Then throw in health-care reform, ADA amendments, constant FMLA tweaks, and a shifting non-compete landscape. Things get complicated quickly.

Employers are wise to have at least one employee dedicated to human resources. If you can’t afford to hire a full-time employee, or aren’t big enough to justify it, at least get a working understanding of what can be a problem. Or (or in addition), have a knowledgeable employment lawyer on speed dial. As in many other cases, it’s what you don’t know that you don’t know–the “unknown unknowns”–that’ll hurt you in the end.

Employer Violated NLRA By Firing Employee For Discussing Salaries

A Texas engineering firm landed itself in hot water with the National Labor Relations Board after firing an employee for discussing salaries with her co-workers.

The Administrative Law Judge’s decision, which the NLRB affirmed, ruled that the employer’s policy prohibiting employees from discussing wages with their co-workers violated employees’ rights to discuss their working conditions under the National Labor Relations Act. It’s crucial to remember that this provision of the NLRA applies to non-unionized workplaces, a fact that is often overlooked because the NLRA deals so extensively with labor unions.


The company wound up paying the employee over $100,000 in back pay, 401(k) contributions, medical expenses, and interest.

The decision noted that:

the [National Labor Relations] Board has long held that an employer cannot lawfully prohibit employees from discussing matters such as their pay raises, rates of pay, and perceived inequities.

The ruling also confirmed that, even without enforcing it, simply having such a policy could violate the NLRA if it reasonably tends to chill employees’ NLRA-protected rights. Where, as was the case here, employers carry out the policy and fire someone, they most certainly violate the NLRA and expose themselves to a claim before the NLRB.

With the NLRB’s renewed efforts to shape employment law beyond the agency’s historical scope, eliminating policies like this one is an easy check-off any employer can make to stay out of trouble.

Who Needs A Lawyer?

Most people are willing to pay for basic types of insurance: auto, health, life, disability, etc. They figure that the relatively small upfront cost will be dwarfed by the expected benefit in the event they have an accident, get sick, or die.

On the other hand, many small business owners opt to be a jack of all trades when starting off. Some stay that way. They can’t understand paying a lawyer for something they can handle on their own or download from a website. But paying a lawyer up front is something of an insurance policy: it will pay off down the road.

Plenty of employers pull miscellaneous template handbooks, policy manuals, employment contracts, and non-competes together and get by. Often it’s not a problem. Until it is. And then it’s too late. You could lose a key employee to a competitor if you can’t enforce his non-compete. Your employment contract could unwittingly provide deferred compensation subject to stiff penalties on an IRS audit. Your FMLA leave policies may be out of date and could cause you to violate the law. The problem is you won’t know until it’s already done, and that relatively small cost to do it right from the beginning is now engulfed by the million-dollar lawsuit you’re facing.

An employer and an employee each learned that lesson the hard way this week. In two separate cases, the Virginia Court of Appeals completely dismissed their appeals for not following the correct rules in filing their appeal. They didn’t see the need for a lawyer, and now any shot they had on appeal is gone. Instead of paying a lawyer to help with their appeals, they opted to go it alone, and paid for it dearly.

In highly technical areas of the law, it will pay dividends to have a specialist who can competently guide you through the process.

You Can Take It With You When You Go

Your list of Twitter followers, that is.

New York Times editor Jim Roberts, who had a list of more than 75,000 Twitter followers, announced he was taking them with him upon his early-retirement buyout. While he’ll likely have to change his handle to remove the NYT reference, he’s apparently free to keep his followers.

CBS Moneywatch, in turn, notes some good points to make sure your business’s goodwill doesn’t go out the door with your employees. The biggest lesson: have a plan, in writing, ahead of time. Also, try to keep the personal and the business aspects separated.

The best-case scenario is a well-drafted social media policy that employees sign, specifically detailing what happens to various social media accounts during, and after, employment.

Think Employment Law Doesn’t Apply to You? Think Again

That’s the title of a short article from Inc. magazine, but well worth the two minutes it takes to read. It highlights the often-confusing framework of federal employment laws that can trap unwary employers, even small ones.

Here’s the lead:

Quick quiz: You have 35 employees. One of your junior analysts is pregnant. Do you have to allow her to take 12 weeks off for childbirth, recovery, and bonding and provide her with the job when she returns?

What seems like a clear no–the FMLA doesn’t apply to employers with fewer than 50 employees–quickly changes course when Title VII comes up. It kicks in at 15 employees, but requires employers to treat pregnant employees the same as it would any other employee with a short-term injury. So your worry-free FMLA answer just became a potential discrimination lawsuit.

It then shifts to the case of employers who explicitly give the impression that employees are FMLA-eligible, even though they’re not. If you promise the leave, a court may make you follow through.

Add in state (or, in some cases, local) laws, and you see how this simple answer becomes much more complex.

The point is it’s never quite as easy as it seems.

Federal Court Dismisses EEOC’s Credit-Check Discrimination Case

An Ohio federal court dealt the EEOC a major blow by dismissing its case against Kaplan Higher Education last week. The case had been the most notable one so far advancing the EEOC’s theory of “disparate impact” discrimination based on Kaplan’s use of credit reports in hiring.

The court found largely technical problems with the EEOC’s potential evidence of discrimination and its proposed expert testimony, so it didn’t scrap the theory writ large. Still, it may cause the EEOC to hesitate when considering similar lawsuits unless there is clear statistical evidence that applicants’ credit backgrounds caused a disparate impact on minorities without any underlying business purpose.

Remember that using credit reports is not illegal; it just has the potential to be discriminatory if it’s not based on business necessity and arbitrarily screeens out minorities.