Archive for December, 2014

Providence Firefighters Lose Appeal Over Required Participation in Gay Rights Parade

Government workers trying to avoid parade duty won’t be happy with a ruling by the Rhode Island Supreme Court in the case of two firefighters who claimed that their religious rights were violated as a result of being forced to participate in a gay pride parade.

Local governments, on the other hand, may see the outcome as vindication for their authority to order workers to perform assignments with which they disagree as a matter of conscience.

The parade in question took place in 2001, when Theodore Fabrizio and Stephen Deninno, members of the Providence, Rhode Island, fire department, were told by the department to take part in a gay pride parade by driving a truck. As Catholics, the two asked to be reassigned since homosexuality is contrary to their religious beliefs.

As a result of being forced to participate in the parade, the two firefighters stated that they were subjected to sexual harassment from both event-goers and fellow co-workers.

In 2004, the pair sued the city’s mayor Buddy Cianci and fire chief James Rattigan.

It took 10 years for the controversy to wind its way through the court system–to an unsuccessful conclusion, as least from the firefighters’ perspective.

“The respondents’ appearance in the parade, solely as members of the Providence Fire Department, did not constitute a form of expression on their part. Rather, it was simply the accomplishing of a task assigned to an engine company of the Providence Fire Department,” Justice William Robinson wrote, delivering a unanimous ruling on behalf of all five members of the Rhode Island Supreme Court.

And with that, I’ll see you in the New Year! Happy 2015 everyone.

Employee Wage Discussions Protected Under Provisions of New Hampshire Pay Equity Act

Employers in New Hampshire won’t have the shelter of law any more if they discourage their employees from talking amongst themselves about their wages. Effective January 1, 2015–two days from now–the New Hampshire Pay Equity Act takes effect, freeing up employees to discuss their wages without fear of retribution from their employer.

As did a prior version of the state’s equal pay law, the new law prohibits employers from  discriminating between employees or applicants on the basis of sex by paying employees of one sex at a rate less than the rate paid to employees of the other sex for equal work that requires equal skill, effort, and responsibility and is performed under similar working conditions.

But where the law goes further than its predecessor–originally passed in 1947–is in prohibiting employers from stifling employee conversations about wages. Specially, employers are prohibited from requiring employees to sign a contract or waiver that would prohibit them from disclosing their own pay information. It will also be against the law for an employer to terminate, discipline or otherwise discriminate against employees for disclosing their own compensation or benefits information.

Earlier this year, President Obama issued an executive order outlawing retaliation against employees of federal contractor  discussing their wages with each other. That order applies only to federal contractors. New Hampshire’s law covers all employers in the state.

Three cheers for the Live Free or Die State!

Anti-Violence Memo Was Interference in Union Organizing Campaign, NLRB Holds in Split Vote

Employers have to be careful about the tactics they use in opposing a drive to unionize their workplaces. What they might see as neutral and innocuous could be construed by regulators as interfering with employees’ right to decide for themselves whether to join a union or not.

A nursing home in New Jersey learned this lesson recently when the National Labor Relations Board ruled that it interfered with employee rights during a union organizing drive by posting a copy of its workplace violence policy along with a memorandum urging employees to treat one another with “dignity and respect.”

In the view of NLRB Chairman Mark Pearce and member Nancy Schiffer, these actions by Care One at Madison Avenue LLC, were tantamount to unlawfully targeting union activity and suggesting to employees that they would be disciplined for engaging in union activity.

Not so, said member Harry Johnson, writing in dissent, who declared that employees have no right under the National Labor Relations Act to intimidate or threaten co-workers and that the home did no more than restate a lawful policy against violence.

You can access the board’s decision in Care One at Madison Avenue, LLC d/b/a Care One at Madison Avenue and 1199 SEIU, United Healthcare Workers East. Cases 22–CA–085127 and 22–CA–089333  here.

Illinois Rehab Care Center to Reinstate Pregnant Worker Under Terms of Settlement With EEOC

Employers continue to find themselves in legal hot water because they either don’t recognize or they ignore their responsibilities of fair treatment of pregnant employees.

Latest case in point is the EEOC’s announcement two weeks ago that it settled a pregnancy discrimination lawsuit against an Illinois convalescent center stemming from their treatment of a pregnant social worker. According to the EEOC, the administrator at  Midway Neurological & Rehabilitation Center, a provider of short- and long- term medical and rehabilitation care located in suburban Bridgeview, Ill., first reduced the hours of one of its social workers after learning she was pregnant, and then fired her while she was out on maternity leave.

Under the settlement agreed to by the parties, Midway must reinstate the employee and provide her monetary compensation in the form of a salary adjustment and repayment of nursing school loans.  The settlement also requires Midway to report to the EEOC for the next two years on all employee complaints of pregnancy discrimination, and to train all its employees at this location on the prevention and eradication of pregnancy discrimination.

“Pregnancy discrimination remains a problem,” said John Hendrickson, the EEOC’s regional attorney in Chicago.  “In too many workplaces too many times, employers are too quick to determine that the pregnant employee is the expendable employee.”

Perhaps next year there’s be less pregnancy discrimination. If employers at least aren’t so quick to fire a woman when she announces she is pregnant, that would be a start.

In 2015 we’ll likely see clarification of employers’ legal obligations under the Pregnancy Discrimination Act to accommodate pregnant employees through light-duty or other less strenuous assignments as they would other employees with temporary impairments.  A case raising that question is pending before the U.S. Supreme Court.

Preventing Cyber-loafing at Work

Concerned that your employees are spending too much time on the Internet instead of doing their work? You’re right to be concerned, says our resident blogger Robin Paggi, who offers tips on preventing “cyber-loafing.”

Preventing Cyber-Loafing at Work

Did you hear about the US software developer who was caught outsourcing his job? According to an article on, his company’s security team discovered that someone was logging in from Shenyang, China using the developer’s credentials. What was the developer doing while someone else did his job? His web browsing history revealed that he spent most of his day surfing the Internet.

“Of all workplace distractions, the Internet is the greatest productivity drain,” said Cheryl Conner in her article “Who Wastes the Most Time at Work?” on Granted, the software developer case is unique, but spending time at work on the Net is not.

According to a 2013 survey, 39% of respondents spent less than 1 hour, 29% spent 1-2 hours, 21% spent 2-5 hours, 8% spent 6-10 hours, and 3% spent 10+ hours each week using their work computer to update their Facebook status, watch videos of piano-playing cats, shop on, or similar activities that is now called cyber-loafing.

Employees spend time on the Internet while they should be working. So what? To put this in perspective, let’s say a full-time employee (who works 2,080 hours or 260 days a year) spends 10 hours each week cyber-loafing. That’s 520 hours (or 65 days) each year that she is being paid for not doing her job.

In addition to being a drain on productivity and money, some Internet usage by employees could lead to liability issues for employers. For example, in a Nielsen Online poll, 25% of survey respondents admitted to watching porn on a computer at work (and that’s just the ones who fessed up). If an employee is subjected to their co-worker’s porn watching, a harassment claim against the company could follow.

Finally, Internet usage could also lead to security issues because of employees who accidentally download viruses and other malicious programs. Here’s a fun fact: employees are more likely to download a virus from a church website than from a porn site. According to the article “5 common myths about computer viruses” on, that’s because the adult industry has the money to ensure their sites are secure, but non-profit religious organizations often do not.

Obviously, with so many risks, employers should just deny access to the Internet, right? Wrong for many reasons, including: many employees need the Internet to do their jobs, many employees can easily access it on their phones, it’s oppressive, and it’s unnecessary.

What employers can do to minimize the risks of their employees abusing their use of the Internet is to:

  • Deny access to certain websites (such as porn sites). Numerous software programs are available that allow employers to restrict access to websites based on various criteria.
  • Monitor employees’ on-line activity. Those software programs can also track which websites employees are visiting and for how long.
  • Restrict Internet usage for business purposes, except for breaks and meal periods. Recent findings from a University of Melbourne study found that employees who were allowed to access social networks were actually more productive than those who weren’t because a quick visit to their Facebook page or the like reinvigorated them.
  • Tell employees that they have limited access and are being monitored (put this in writing in a handbook or stand-alone policy and have them sign it).
  • Have consequences for those who violate the policy. Not surprisingly, a recent Kansas State University study revealed that just having a policy did not prevent cyber-loafing. Said researcher Joseph Ugrin, “Even when they (employees) knew they were being monitored, they still did not care.”

One more thing for employers to consider is why employees spend so much time on the Net in the first place. Two primary reasons given in a survey were 1) not being challenged, and 2) boredom. Want employees to work? Make sure they have lots of challenging work to do.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin last wrote for us about business lessons from a Christmas story and before that about cell phone policies at work. She has also written for us on rules for holiday parties at work and before that about preventing workplace bullying.

Fired Visually Impaired Worker to Get $110K in Settlement of ADA Suit Against Bank of America

On the other hand, it’s going to be a better Christmas for a Chicago-area worker who was denied a reasonable accommodation that would have allowed him to continue working at Bank of America in spite of his visual impairment.

The Equal Employment Opportunity Commission announced on December 19 that it had recovered $110,000 in settlement of an Americans With Disabilities Act claim brought on behalf of a temporary data entry worker who worked at one of the bank’s downtown Chicago branches.

The announcement didn’t specify what accommodation the worker had asked for, but EEOC pointed out that modifying the workplace is one way to enable a worker to perform the essential functions of this job. In this case that might include providing screen magnifying software that would enable an employee with a visual impairment to perform essential computer work. Questions and answers about blindness, visual impairments and the ADA are available on the EEOC’s website.

So this outcome is a valuable lesson during the holiday or any other season for that matter–employers must look for creative ways to accommodate persons with disabilities so that they can do the job for which they were hired. That’s the ADA minimum requirement, and you can expect the EEOC to be vigilant in its enforcement into 2015 as it has been in 2014 and previous years.

Here’s the EEOC’s announcement of the settlement.

Pregnant Employees Victims of Title VII Violations by School District, DOJ Charges

It won’t be a very Merry Christmas for pregnant teachers at a Chicago-area high school, who the federal government claims were victims of widespread discrimination by the Chicago Board of Education.

DOJ this week sued the board, alleging that it  discriminated against pregnant teachers at Scammon  Elementary School by subjecting them to adverse personnel actions, including  termination in some instances, after they announced their pregnancies.

The suit filed in the U.S. District Court for the Northern District of Illinois alleges that, starting in 2009, the principal at Scammon subjected  female teachers to lower performance evaluations, discipline, threatened  termination and/or termination because of their pregnancies. The complaint further alleges that the board  approved the firing of six recently pregnant teachers employed at Scammon and  forced two other recently pregnant teachers to leave Scammon.

If these allegations pan out, it’s hard to see very many teachers–pregnant or otherwise–wanting to be assigned to that school.

The suit alleging violations of Title VII of the 1964 Civil Rights Act was brought by the Justice Department because it has jurisdiction over state and local government employers.

Read more about the lawsuit and the remedies that DOJ is seeking on the victims’ behalf.

Court Nixes DOL’s Rule Requiring Minimum Wage, Overtime for Home Health Care Workers

Home care agencies got a reprieve today from a federal district court in Washington, D.C., which ruled that the U.S. Department of Labor doesn’t have the authority to require them to pay minimum wage and overtime to workers they send into people’s home to provide health care and other services.

The court ruled that DOL doesn’t have the authority to effectively overrule the FLSA exemption that pertains to these workers, which has been on the statute books for several decades. Only Congress has the power to remove the exemption from the law, it said.

The rules, which were to take effect starting Jan. 1- just 10 days from now–were aimed at 2 million Americans who provide direct care in the home to elderly persons and persons with disabilities. They would require these workers be paid a minimum wage, and overtime if they worked more than a 40 hour week.

DOL estimates there are 1.9 million direct care workers in the U.S., with nearly all currently employed by home care agencies. Approximately 90 percent of direct care workers are women, and nearly 50 percent are minorities.

Workers covered under the rule include home health aides, personal care aides and certified nursing assistants.

The rule also covers direct care workers who perform medically-related services for which training is typically a prerequisite. However, they wouldn’t cover workers who are employed only by the person receiving services or that person’s family or household and engaged primarily in fellowship and protection (providing company, visiting or engaging in hobbies) and care incidental to such activities.

See my prior blog post on these rules.

NLRB: McDonald’s, Franchises Liable as Joint Employers for Retaliation Against Workers

McDonald’s and its local franchises  are  joint employers liable together for retaliation against employees who protested for improved wages and working conditions, the National Labor Relations Board charged on Friday.

The case is the board’s latest application of the joint employer doctrine, which has generated opposition from the business community and Republican members of Congress, who argue that the franchises operate independently of the main company.

The board wasn’t buying that, ruling it found “merit” in 64 cases filed in 13 cities, including Chicago, New York and San Francisco.

Sony Facing Suits Alleging It Didn’t Adequately Protect Employees’ Information From Hackers

What is an employer’s legal liability to prevent a hack of its computer system resulting in release of confidential employee information? We may be about to find out.

Sony’s decision to cancel release of the movie “The Interview” could have nasty spillover effects in its relations with its current and former employees. The company is facing four lawsuits alleging that it didn’t do enough to protect its employees’ private data, including Social Security numbers, salaries, performance reviews and medical information.

To recall, Sony Pictures Entertainment cancelled the move’s release after hackers claiming responsibility for the breach warned that they would attack movie theaters that showed the film. The movie is a comedy about an assassination plot against North Korean leader Kim Jong Un.

That move triggered an outbreak of criticism in the media and by President Obama, who accused the company of knuckling under to foreign threats.

According to some legal observers, the situation represents a “sea change” in the world of cyberattacks because it’s going after secure employee data and not just customer credit card data.

But former Federal Trade Commission official and Georgetown Law Professor David Vladeck said it’s too early to tell whether the data breach was Sony’s fault. He told the Washington Post that “there’s a great deal of forensic work that goes into examining a data breach of this magnitude.”

Check back here for further developments.