How do you spend your down time? What do you do when you’re not working? Me? I blog, and I play roadie for Norah and Donovan. If you happen to work as an animator at Pixar, you craft emotionally compelling and visually stunning short animated films. ...


Ohio Employer's Law Blog | Daily Updates | 01CWIRTW #435 (the "spare time" edition)>01D plus more

WIRTW #435 (the "spare time" edition)

How do you spend your down time? What do you do when you’re not working? Me? I blog, and I play roadie for Norah and Donovan. If you happen to work as an animator at Pixar, you craft emotionally compelling and visually stunning short animated films. Like this one.


Borrowed Time from Borrowed Time on Vimeo.

According to one of its two creators, Lou Hamou-Lhadj (the other is Andrew Coats), their “goal was as to make something that kind of contested the notion of animation being a genre, and one for children specifically. We really wanted to make something that was a little bit more adult in the thematic choices, and show that animation could be a medium to tell any sort of story.”

I’d say they hit it out of the park. 

Here’s what I read this week.


Social Media & Technology

HR & Employee Relations

Wage & Hour


OSHA & Safety


Is social recruiting discriminatory?

Yesterday, I noted that the EEOC is examining the impact of “big data” on how employers reach employment decisions.

Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.

In that case, the only purpose the EEOC could hope to serve by looking at the impact of big data on employment practices is to determine whether its use disparately impacts a protected group.

“What is disparate impact,” you ask? A disparate impact claim involves an employment practice that is neutral on its face, but, as applied and to a statistical significance, it falls more harshly on one group over another. It has significant implications in race and sex discriminate claims. One federal appellate court recently and notably, however, called into question its application in age claims.

Unless big data has a disparate impact, the EEOC has no business examining this issue. So, what says the data? For purposes of this post, consider the use of social media as a recruiting tool. If an employer is relying primarily on LinkedIn to source and recruit candidates, does its use disparately impact one race or sex over another?

According to the most recently available data (c/o the Pew Research Center), the answer is no.

If men vs. women, or Whites vs. Blacks, or Whites vs. Hispanics, are using LinkedIn in similar percentages, then, based on the data, it will be difficult to make a disparate impact claim on this big-data issue. Granted, the EEOC examined issues much more broadly than just social recruiting, but at least on this issue, and at least according to the available actual data, it looks like employer should be free to use LinkedIn to source candidates without fear of a discrimination claim.

Kudos to the EEOC for thinking outside of the box in trying to discover new paths of discrimination to address. I wonder, however, if when the EEOC gets around to opening that box, instead of finding Pandora’s evils, it will find a whole bunch of nothing.


EEOC reiterates its enforcement priorities for the next four years

Earlier this week, the EEOC announced its updated Strategic Enforcement Plan for 2017 – 2021. So, what issues must employers have on their radar? From the EEOC’s press release:
  1. Eliminating barriers in recruitment and hiring.
  2. Protecting vulnerable workers, including immigrant and migrant workers, and underserved communities from discrimination.
  3. Addressing selected emerging and developing issues.
  4. Ensuring equal pay protections for all workers.
  5. Preserving access to the legal system.
  6. Preventing systemic harassment.
As Eric Meyer points out at his Employer Handbook Blog, these six enforcement priorities bear a striking resemblance to those in the EEOC’s recently expired prior enforcement plan, which covered 2013 – 2016.

The EEOC has made two notable updates:
  1. Issues related to complex employment relationships in the 21st century workplace.
  2. Backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern, or South Asian descent, as well as persons perceived to be members of these groups, as tragic events in the United States and abroad have increased the likelihood of discrimination against these communities. 
Number two is self-evident. Number one—issues related to complex employment relationships in the 21st century workplace—merits some special attention. According to the EEOC, this priority will focus on temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy. Based on a recent public meeting the Agency held, it is also safe to assume these “21st century workplace” issues will also focus on how employers use “big data”—the harvesting of a wide range of empirical data for HR decision making—to make employment decisions.

There will be a lot more to say about big data and HR in the coming months and years. For now, know that its use on the EEOC's radar, along with the other eight areas of strategic enforcement for the EEOC. 


OSHA publishes final rule on whistleblower complaints under the Affordable Care Act

As I’ve previously documented in this space, OSHA does a whole lot more than just regulate workplace safety. Its other responsibilities include enforcing the anti-retaliation whistleblower protections of a veritable alphabet soup of federal laws.

One such law is the Affordable Care Act (aka, Obamacare). And, just last week OSHA published its final rule on whistleblower complaints under the Affordable Care Act, available for download as a pdf here.

What does OSHA want you to know about this new rule? The ACA protects employees from retaliation for:
  • reporting violations of the various reforms found in Title I (i.e.,  not providing health insurance); and 
  • receiving a premium tax credit or a cost sharing reduction for enrolling in a qualified health plan (i.e., subsidizing an employee, high risk or otherwise, to enroll for insurance on the Exchange instead of via an employer’s group health plan).
An employee who believes that he or she has been retaliated against in violation of Title I of the ACA has 180 days after the alleged retaliation to file a complaint with OSHA.

OSHA has more information on this new rule in a Fact Sheet, available here [pdf].

Given OSHA’s now lightened standard for employee retaliation claims, this issue is definitely one that needs to be on employers’ radars, especially as employers try to develop new and creative way to curb the surging cost of health insurance.


Billy Bush, harassment, and employer liability

Dan Rather, who is riding out the sunset of career interviewing musicians on Mark Cuban’s cable channel, also has been killing it lately on his Facebook page. He recently posted the following, tipping his hat to an article on The Huffington Post entitled, Dangerous Sycophants—Billy Bush in the Workplace:
While the Access Hollywood tape has been making news for the last week or so, mainly for what Donald Trump said, there is something else that has stood out: Billy Bush’s ‘role’ in the whole affair. Bush’s attorney reportedly said, “If Billy had been passive or responded, ‘Shut the f— up’ to Trump, Billy would have been out of a job the next day.” This certainly does raise some questions about behavior in the workplace. Is laughing considered a form of agreement with something a supervisor, co-worker or client says? Of course Bush went a step further, he didn’t just laugh along, he also made some comments I think we can all agree are inappropriate (especially at his place of work). 
I want to come at this from a different angle than The Huffington Post, which attacked Bush for playing the roll of Trump’s wingman. What do you do, as an employer, when you learn of harassment about which no one has complained? 

The short answer is you better do something, and you cannot do nothing. An employee alleging sexual harassment by a coworker must still establish that the employer is liable because it knew or should have known of the harassment, yet failed to take prompt and appropriate corrective action. When does an employer “know or should know” of harassment? Either when: (1) an employee complains or otherwise makes the employer aware; (2) a supervisor or manager witnesses the inappropriate conduct and either reports it or remains silent; or (3) when a workplace is so permeated with harassment that is unreasonable for an employer to claim ignorance.

What steps must an employer take when it learns of harassment, whether or not an employee has complained? These five steps (which I’ve outlined before) are critical:
  1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
  2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
  3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
  4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
  5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through. 
What you cannot do, however, is bury your corporate head in the sand. Under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and possibly indefensible) harassment lawsuit.


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