HR & the Law in the News
October 2015, Volume 14, Issue 10
Hello again and welcome to the latest edition of FiveL Company's monthly e-newsletter, bringing you some of the latest news related to employment policies, practices and programs. 

Check out the upcoming events including this month's webcast, "Workplace Violence Prevention" with special guest Michael Heitt, PsyD and pre-approved by HRCI and SHRM for 1.25 credits! Click here for more info. 
Court Says Ask the Expert! 

A small business has questions about how he is paying his hourly employees.  He visits an "E-law" website to confirm that he is paying his hourly employees properly under the law. He determines that his pay practices do comply with the Fair Labor Standards Act (FLSA) guidelines. But - OOPS - an employee subsequently sues for failing to receive payment for all hours worked plus overtime. The employer argued that by using the E-Law website he met his burden of proof to show that he "acted in good faith reliance on U.S. Department of Labor regulations to comply with the FLSA."  The court considered this and the FLSA's regulatory definition of a "willful" violation of the FLSA, "if the employer either knew or showed reckless disregard for...whether this conduct was prohibited by the statute." So what did the court decide? Did the business owner show reckless disregard by using this "E-law" website?  It's worse than that! The court noted that the business owner "did not consult an attorney or the Department of Labor. Instead he went to an 'E-Law' website."  That combined with the fact that the business owner did fail to pay for all time worked plus overtime lead the court to find the business owner's conduct was a willful violation of the FLSA to the tune of $36,265.

Lessons Learned?  Free resources are great.  According to this court, an HR professional or business owner may want to regularly give consideration to guidance from the federal agency that enforces the issue on which they have a question.  Then legal guidance might supplement that to ensure the federal guidance is consistent with any state or local laws or regulations that might apply.  The US Department of Labor has a list of Fact Sheets on myriad topics.  The U.S. Equal Employment Opportunity Commission offers similar information with Policy Guidance also by topic.  
Retaliation Takes a Holistic not Myopic View
Most employers not only trust but expect their supervisors, managers and leaders to support company policy and help limit risk and liability. So can you properly fire a management representative when you believe he has failed to do so? Consider this case.  

A company's Employee Assistance Program (EAP) consultant met with an employee.  The employee described behavior that he felt was subjecting him to sexual harassment (and if he was to be believed, most would say having someone expose their genitals to you would do just that!).  But rather than give the employee neutral guidance as to how to report the concerns to HR, the EAP counselor told the employee that he believed the employee was a victim of sexual harassment. Then following the investigation the counselor also told the employee that he believed the company's management and the HR department had been "mishandling" the employee's complaint, despite the fact that they had fired the harasser.  When the employer learned of these comments they fired the EAP counselor. Now the employer faced not only the lawsuit from the harassed employee but another lawsuit from the former EAP Counselor alleging that he was fired in violation of Title VII.   

In this case, the 4th US Circuit Court of Appeals (covering MD, VA, WV, NC, SC) addressed two issues: whether: (1) the EAP counselor engage in protected activity when he expressed his views to the employee; and (2) the EAP counselor fell under the "manager rule" for which a retaliation claim could not be applied. I suppose you know where I'm going with this or I would not be telling this story, eh?
  1. The court ruled that the EAP counselor did engage in protected activity. The EAP counselor had not filed a claim in court, a charge with an administrative agency or even an internal complaint on his own behalf or on the behalf of any other employee.  But the court found that retaliation claims are not limited to "a myopic analysis" but require a "holistic approach...through a panoramic lens." In short, the EAP counselor's repeated comments gave rise to his belief that the employer has engaged a form of employment discrimination and that he had served as the "leading advocate" for the harassed employee. 
  2. The court ruled that the "manager rule" did not apply to the EAP counselor. The "manager rule" limits the ability of managers to claim retaliation. Why? The court explains. By the nature of their job managers are required to report employees' complaints. As such, "nearly every activity in the normal course of a manager's job would potentially be protected activity and the otherwise typical at-will employment relationship could quickly degrade into a litigation minefield."  Yet the court ruled in the EAP counselor' favor here.  Why? This rule has been applied in FLSA cases. The court found this rule does not apply in Title VII cases. 
Lessons learned? These analyses are always in hindsight. So act in the moment.  When any employee, staff or manager expresses a concern for the law for that moment; it is a secondary issue.  Listen, investigate and take remedial action to correct the problem if there is one. What you do next is just as important.  If you have concern about how an investigation was handled use it as a teaching moment for the manager and the employer. Understand "why" the person acted as he did.  Then consider if the conduct can be corrected with some action other that termination from employment.
  • Thursday, October 8th - Webcast, "Telecommuting Employees" hosted by NAMIC 2:00 - 3:00 pm EST
  • Friday, October 9th - "Employment Law Update for Shaping Public Policy" presented during CC SHRM's 3rd annual conference, Westminster, MD
  • Friday, October 16th - "Employee Handbooks: Read 'Em & Weep?!" presented during CV SHRM's Employment Law conference, Hagerstown, MD
  • Wednesday, October 21st - Webcast "Organizational Development" hosted by NAMIC, 2:00 - 3:00 pm EST 
  • Friday, October 23rd - "Employment Law Update for Shaping Public Policy" presented during SHRA's HR Summit, Bel Air, MD
  • Wednesday, October 28th - Webcast "Workplace Violence Prevention" hosted by FiveL Company 10:00 - 11:15 a.m. EST pre-approved for credit by HRCI & SHRM 
Click here for a full listing

Here it is...the infamous and oh-so-important disclaimer...This publication does not constitute the rendering of legal advice.  You should consult your company's employment or legal counsel for guidance on any particular issue.