Tuesday September 25, 2018

ACLU sues Facebook for discriminatory job ads

Facebook is in hot water once again — this time, for job ads targeting exclusively men for roles such as police officers, truck drivers and sports store clerks. The ACLU lodged a complaint against the social media giant — as well as 10 employers that used Facebook to post ads — on behalf of three female job hunters and the Communications Workers of America.

Civil rights violation?

The complaint was filed with the EEOC and accuses Facebook of enabling discriminatory job postings.

Specifically, companies used Facebook’s ad targeting features to exclude female candidates, and young and older men. Enhanced Roofing and Remodeling made its help wanted ad appear only to men 23 to 50 years old. The City of Greensboro, NC published an ad looking for police officers, but only men ages 25 to 35 could see it.

But the ACLU is more focused on Facebook than these employers — after all, the social media giant is the one that allowed ads to be marketed and delivered in this way.

“This type of targeting is as illegal now as it was in 1964 when the Civil Rights Act was passed,” a spokesperson for the ACLU said. “It also essentially acts as a recruiter connecting employers with prospective employees. In this context, it should be legally accountable for both creating and delivering these discriminatory ad campaigns.”

This case is currently pending.

Employer takeaway

Facebook’s legal trouble emphasizes to employers how risky it is to target candidates based on any protected factors, such as gender or age.

Even if you don’t target candidates in this way, it’s smart to review the language of your job postings. What does it say about experience levels? Does it say anything about preferring recent college grads? Wrongly worded job posts could be considered discriminatory.


Post to Twitter Tweet This Post

Staying compliant during natural disasters: Pay, leave questions answered

The arrival of Hurricane Florence — and the dreaded aftermath — has a lot of employers wondering about HR challenges that come along with natural disasters.

FLSA and FMLA compliance is a big concern at times like this, and employment lawyer Kara Maciel answered some common questions HR pros have when disaster strikes.

Wage and hour concerns

If our company closes due to the storm or damage afterwards, do we have to pay employees for that time?

According to the FLSA, nonexempt employees only have to be paid for time actually worked. So, while the worksite is closed due to a natural disaster, these employees don’t have to be paid.

Exempt employees are a different story. These workers have a fixed weekly salary, and must be paid this full salary if any work was performed during the week. So, if the company closes Wednesday due to the storm, exempt employees would still receive their normal paychecks, even though they only worked Monday and Tuesday.

Note: Employers can require workers to use available leave during this time.

If the worksite is open, but employees can’t come in due to the weather, is it legal to dock exempt employees’ salaries?

The DOL says when employees have transportation issues in severe weather, the absence can be counted as personal time. Employers can place these employees on temporary leave without pay until they return. However, if a salaried employee only misses a few hours of work, their pay cannot be docked.

Note: Before docking anyone’s pay, it’s best to seek legal counsel. There are also other options, such as allowing the employees to “make up” the time they missed.

FMLA issues

Can employees affected by the hurricane take FMLA leave?

Workers may use FMLA leave if they suffer a serious health condition as a result of the natural disaster. An employee can also use this time to care for an affected family member.

One example of an FMLA-qualifying condition resulting from the hurricane is medical equipment not operating due to power outages.

Post to Twitter Tweet This Post

Sixth Circuit: High standard to prove employees are similarly situated

A recent ruling by the Sixth Circuit shows when it comes to discrimination lawsuits, the standard is pretty high for proving the employees who received differential treatment are actually similarly situated. 

When a company fired Ramona DeBra for indiscretions younger workers weren’t punished for, she filed an age discrimination lawsuit. But she had trouble showing the court her situation was comparable to her younger co-workers’.


DeBra worked as a bank teller at Chase. But after making a series of errors — overpaying customers, leaving funds unsecured on counters and forgetting to return bank cards to customers — she was terminated.

While these appear to be fireable offenses, DeBra claimed her colleagues made the same errors and weren’t fired. Since they were all younger than her, DeBra alleged her age was the real reason she was terminated.

Different supervisors

The court said DeBra’s claim came down to proving she and her co-workers were similarly situated. And while they all had the same job and committed the same errors, DeBra had a different supervisor. The other employees’ supervisor was known to be more lenient than DeBra’s.

It was true that several other tellers had made the same mistakes (or worse) than DeBra, but there was no employee who shared DeBra’s supervisor, was younger and committed the same errors. Therefore, the Sixth Circuit reaffirmed a lower court’s decision and granted summary judgment to the company.


This ruling is good news for employers. Discrimination claims rest on employees’ ability to show they were treated less favorably than similarly situated colleagues. This case shows that even just one difference between employees’ situations can be enough to prove they aren’t similarly situated.

Cite: DeBra v. JPMorgan Chase & Company, U.S. Crt. of App. 6th Circ., No. 17-1411, 9/5/18.

Post to Twitter Tweet This Post

Update from feds: DOL releases opinion letters regarding FMLA, FLSA

Overtime rule, DOL, FLSA

It was a busy week for the DOL — not only did the agency release a new set of FMLA forms for employers, but it wrote four opinion letters addressing several FMLA and FLSA concerns. 

As far as the forms go, the only thing that changed is the expiration date. The updated FMLA forms are exactly the same as the previous set.

The opinion letters will be of more interest to employers, as they address tricky scenarios managers may run into when dealing with the FMLA or FLSA.

Here’s a rundown of the situations the DOL addressed in the letters:

1. Organ donation is covered under the FMLA

In FMLA 2018-2-A, an employer asked whether an employee could use FMLA leave for undergoing organ donation surgery. The DOL says yes. Even if the employee was in good health before the surgery, organ donation still qualifies as a “serious health condition,” and therefore is covered under the FMLA.

A serious health condition is defined as an illness or physical condition that requires inpatient care at a hospital. Since the typical hospital stay after organ donation surgery is four to seven days, this certainly qualifies as a serious health condition.

2. FMLA leave “freezes” no-fault attendance policies.

In FMLA 2018-1-A, an employer detailed its attendance policy. Employees would accrue points for absences, and if those absences added up to a certain number in a year, they’d be terminated. But employees could also shave some points off with consistent good attendance. The employer’s question? If an employee takes FMLA leave, does that mean they cannot accrue or lose any absence points?

The DOL said yes, employers are permitted to “freeze” the absence points of employees on FMLA leave. It’d be an FMLA violation to give employees absence points while on leave, but it’d also be an unfair benefit to remove points while employees were not working.

Note: This freezing policy must apply equally to all types of leave, such as vacation and worker’s comp.

3. Voluntary health and wellness events can be unpaid.

In FLSA 2018-20, an employer asked if employees needed to be paid for attending voluntary biometric screenings during the work day. The DOL says no. Since the event is voluntary, and is primarily for the benefit of the employee, it isn’t compensable. When an employee is attending a wellness event, they are relieved of their job duties.

4. Clarification on retail or service establishment exemption

In FLSA 2018-21, an employer wanted to know if the “retail or service establishment” exemption applied to sales reps at their business. The company sold a unique technology platform to a variety of clients, and not in large quantities. The DOL decided this type of business qualified for the exemption.

The retail or service establishment exemption says employees don’t receive overtime pay if they meet the following requirements:

  • they work at a retail or service establishment
  • their regular rate of pay exceeds one and a half times the minimum wage, and
  • more than half their earnings consist of commissions.


Post to Twitter Tweet This Post

Don’t press send! 7 email faux pas you want to avoid

Email is unavoidable in the workplace, and the amount of messages filling up employees’ inboxes can be annoying and intimidating. 

These days, practically anyone is able to contact you via email (and you can do the same).

Because of this, it’s becoming a challenge to get people to answer your emails in a timely manner. And even if you consider yourself email savvy, you could be making some common errors that prevent you from getting that quick response.

What not to do

Fast Company contributor Stephanie Vozza shared email mistakes most people make, and what to do instead:

  1. Using caps in the subject line. You might be trying to stress the importance of something, but all caps will just stress out the recipient. Research shows that emails with all caps subject lines receive responses 30% less than lowercase subject lines. Normal capitalization is best.
  2. Having vague subject lines. If the recipient is confused what the email is regarding, they’re less likely to open it and reply. Using something simple and generic like “Hi” will make the message seem unimportant.
  3. Not using cc and bcc. You might be used to putting every recipient in the “to” line, but using cc and bcc can be more effective. Generally, people included in the “to” line are expected to respond to the message. Adding people to “cc” lets them know they’re in the loop, but don’t necessarily need to respond. And “bcc” sends the message that this person’s involvement should be kept secret.
  4. Writing too much or too little. While big blocks of text are intimidating, sometimes it’s necessary if the subject matter is serious or complicated. That being said, if you have a simple request, don’t overdo it — short and sweet is better in this case.
  5. Not saying thank you. Emails that end with “thanks” or “thanks in advance” are 36% more likely to get a response.  Plus, the person will want to help out if you show gratitude.
  6. Sending an email on Monday. Of course, you can’t always avoid emails on a Monday. But, if the message can wait until Tuesday, you’ll be more likely to get a positive response when people aren’t so tired or grumpy.
  7. Expecting a quick response. Just because you’re message could be answered in five minutes, doesn’t mean it will. Remember: email is not the same as text messaging. Your co-worker could have more urgent things going on and will reply to your message when they have time.

Post to Twitter Tweet This Post

6 tactics to stop promising candidates from disappearing on you

In this tight labor market, the war for talent wages on – and you may be feeling like your biggest adversaries are your own promising candidates. 

More and more job applicants are disappearing during the interview process, ignoring your calls or simply not showing up after accepting offers – otherwise known as “ghosting.”

Role reversal

Sound familiar? For the first time in a long time, job candidates have more options than hiring managers: According to the U.S. Bureau of Labor Statistics, there are 6.6 million job openings, and only 6.1 million unemployed people to fill them. This gives candidates the power to be more selective, rather than accept the first job offer that comes around.

With candidates in the driver’s seat comes a strange role reversal for HR. Suddenly, companies are the ones carefully trying to woo candidates, and job seekers are the ones not returning calls after promising interviews.

Because of this, companies are a little more cautious when a qualified candidate pops up, since the odds are slim they’ll stick it out through the whole process. Even someone accepting a job offer and showing up on the first day doesn’t guarantee they’ll stay.

Best course of action

While the current job market shows no signs of changing anytime soon, there are ways HR can fight back when it comes to candidates ghosting them:

1. Focus on the work. Instead of trying to lure in top talent with your company culture and benefits packages, focus on whether the candidate will enjoy the actual job. The more interested and comfortable they are with the work, the more likely they are to stick around.

2. Give candidates a deadline to withdraw from consideration. You’re less likely to be blindsided if you let applicants know there’s an alternative to ghosting, and they can leave the process with no hard feelings.

3. Don’t give people the benefit of the doubt. Many managers refuse to believe they’re being ghosted and instead think a family emergency must’ve come up. This line of thinking ends up wasting valuable time you could use to find a new candidate.

4. Discuss ghosting beforehand. Gently remind candidates that ghosting isn’t professional and could damage their reputation. If you have any personal examples to back this up, share those.

5. Find out how many other employers are in the mix. If possible, try and get a sense of how many other companies the candidate is interviewing with currently. This will help you gauge the odds of them continuing your interview process.

6. Put a time limit on your offer. When you make a job offer to your candidate and they need time to think about it, ask specifically how much time. Set a deadline for them to get back to you, and let them know the offer could be rescinded if the candidate misses it.

Post to Twitter Tweet This Post

Nike bolsters wages of 7K staffers to close pay gap: Will other firms follow its lead?

Nike just joined an increasing number of employers that are making sweeping pay changes in an effort to close the gaps between male and female employees’ paychecks and prevent bias problems down the road. 

The athletic retail giant handed out raises to 7,000 employees – roughly 10% of its staff – to achieve competitive pay among men, women and minorities. Moving forward, Nike says it will conduct deeper analyses of all roles in the company to ensure everyone is compensated fairly.

The move comes on the heels of the findings in an anonymous employee survey which revealed many female employees have experienced gender discrimination, as well as sexual harassment.

Not over yet

Of course, Nike isn’t the only major corporation to make news over equal pay or lackthereof. Google just got a lot of press over an equal pay lawsuit. And, after a series of blows against its pay practices, a judge finally granted Google some good news. But the ruling also made it clear the tech juggernaut’s legal saga wasn’t over yet.

San Francisco Superior Court Judge Mary E. Wiss dismissed the class proposed in a class-action lawsuit against Google, which claimed the company systematically paid male employees more than females.

Specifically, Judge Wiss said the class status, which sought to cover “all women employed by Google in California” was too broad. According to Wiss,

“This class definition does not purport to distinguish between female employees who may have valid claims against Google based upon its alleged conduct from those who do not.”

As HR Morning reported previously, three ex-employees who filed the suit quit after being placed in career tracks that they claim would pay them less than their male counterparts.

One of the ex-employees, Kelly Ellis, said she quit Google in 2014 after male engineers with similar experience were hired to higher-paying job levels and after she was denied a promotion despite stellar performance reviews.

What’s next?

While Judge Wiss dismissed the initial class status proposed by the plaintiffs, she is allowing the women to file an amended complaint.

And the plaintiffs’ attorney, James Finberg, says he intends to do just that — by Jan. 3. Finberg says the amended complaint will make it clear “that Google violates the California Equal Pay Act by paying women less than men for substantially equal work in nearly every job classification.”

Those claims against the company were echoed by a recent federal labor investigation into Google’s pay practices.

The preliminary finding of that investigation uncovered systematic pay discrimination among 21,000 employees at Google’s headquarters, and the initial stages of the review found women earned less than men in nearly every job classification.

The final outcome of this equal pay lawsuit could have implications for employers of all stripes, so we’ll keep you updated. Stay tuned!

CiteEllis v. Google Inc.


Post to Twitter Tweet This Post

3 ideas to liven up your one-on-one meetings

There’s nothing wrong with having business talks or brainstorming sessions while sitting in an office, but it can get old after a while. 

The formality of meeting with a colleague in an office can cause the conversation to be stiff or superficial, which doesn’t typically lead to the most productive or creative discussions.

But Inc.com contributor John Boitnott shared three suggestions for making the most of your one-on-one time with co-workers, helping you get more accomplished and build stronger connections.

1. Go for a walk

Something as simple as walking and talking instead of sitting can make a world of difference. Not only does this give you a chance to stretch your legs and get away from your computer screen, but studies have shown people think more clearly when they’re moving.

Besides the benefit of some physical activity, being outside is much more conducive to better conversations. The sun and fresh air will put you in a good mood, and being out of the office will allow you and your colleague to speak more freely.

2.  Play a game

A shared experience is a great way to bond with a co-worker, and it also gives you the chance to have more meaningful conversations. Sports like golf or racquetball allow for discussion, physical activity and fun. These activities will help you get some work assignments accomplished while not feeling like work.

If you’re not up for a physical activity, a board game or video game can work just as well. Even if you can’t get out of the office, you can still have a fun experience that’s more genuine than a formal one-on-one meeting. Some friendly competition can help you connect with your co-worker, too.

3. Make it a group event

If you need to talk business with someone, but not necessarily in a one-on-one setting, why not get some more people involved? Organize a group happy hour with other co-workers who might be able to shed some light on a project. This laid-back setting will take the pressure off and allow people to be themselves. Plus, when you’re done talking shop, you can mingle and build camaraderie, which is always a good thing.


Post to Twitter Tweet This Post

Court ruling adds confusion to handling medical marijuana in the workplace

Just when HR pros were starting to get a feel for where courts stand regarding medical marijuana in the workplace, a New Jersey court handed down a surpising ruling on the subject. 

In Cotto v. Ardagh Glass Packing, Daniel Cotto sued his former company, Ardagh Glass, over his refusal to take mandatory drug test that was part of company policy. Initially, Cotto had been asked to take the drug test because he “hit his head on a forklift.” Cotto informed the company he wouldn’t be able to pass the test because he use doctor-prescribed medical marijuana to alleviate neck and back pain from a previous injury.

Ardagh refused to waive the drug test and told Cotto he couldn’t continue to work for the company until he had a drug test that was negative for marijuana and he wound up on indefinite suspension. In response, Cotto filed a lawsuit claiming Ardagh’s refusal was a violation of the New Jersey Law Against Discrimination and the New Jersey Compassionate Use Medical Marijuana Act (CUMMA), which required the company to provide an accommodation that excused him from the mandatory drug test.

A court, however, disagreed. In its ruling, the judge found that CUMMA does not require the glass company to waive the drug testing requirements, and found that Cotto failed to show that he could perform the “essential functions” of the job he seeks to perform.

‘Remains illegal under federal law’

The court also cited the Schedule One status of marijuana in its ruling by stating, “[n]o state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law even for medical users.”

It added:

“[a]lthough no court has expressly ruled on this question, New Jersey courts have generally found employment drug testing to be unobjectionable in the context of private employment….And as we have seen, nothing in CUMMA or LAD disturbs this regime.”

Cite: Cotto v. Ardagh Glass Packing, CV-18-1037 (D.N.J. August 10, 2018).

Post to Twitter Tweet This Post

How letting an employee drink juice on the job could’ve saved this company $700K

ADA, EEOC, diabetes

Most employers would be happy to deal with an accommodation request that was as simple as keeping a bottle of juice nearby. 

But one company refused to bend its rules about eating or drinking on the job, resulting in a costly legal battle and payout.

No juice allowed

Linda Atkins, a type II diabetic, was a cashier at a Tennessee Dollar General. Because of her condition, when Atkins’ blood sugar got too low, she’d have to quickly consume sugar in order to prevent passing out or seizing.

When Atkins asked her manager if she could keep orange juice with her for emergencies, he denied her request due to company policy forbidding food or drink at the registers.

During her time at Dollar General, Atkins had two hypoglycemic episodes. In both instances, since Atkins couldn’t leave her post, she took a bottle of orange juice from the store’s cooler, drank it, then paid for it later.

Atkins was then fired for violating the “grazing” policy, which forbids employees from consuming merchandise before paying for it.

Forced to violate policy

The EEOC filed a suit against Dollar General, claiming the company failed to accommodate Atkins, then fired her for her disability. The 6th Circuit reaffirmed a lower court’s ruling and sided with Atkins.

The court said Atkins never would’ve taken juice from the store if she was permitted to have her own — she never should’ve been fired for violating the grazing policy.

The court went on to say that when the company denied Atkins’ request to keep juice at her register, it didn’t go through the interactive process with her to find another accommodation for her disability.

“The employer had a duty to explore the nature of the employee’s limitations and what types of accommodations could be made, but the store manager categorically denied Atkins’ request, failed to explore any alternatives and never relayed the matter to a superior.”

In this case, a little flexibility with company policies would’ve gone a long way. Now, Dollar General owes Atkins $725,000 — much more than the cost of two bottles of orange juice.


Post to Twitter Tweet This Post