Ohio Employer's Law Blog | Daily Updates | 01CA lesson on the importance of uniformity in performance standards>01D plus more

A lesson on the importance of uniformity in performance standards

Under the ADA, and employer can require all employees, including disabled employees, to meet minimum qualification standards. According to the EEOC’s Q&A on Applying Performance And Conduct Standards To Employees With Disabilities, “an employee with a disability must meet the same production standards, whether quantitative or qualitative, as a non-disabled employee in the same job,” and “lowering or changing a production standard because an employee cannot meet it due to a disability is not considered a reasonable accommodation.”

What happens, however, when an employer holds a disabled employee to a higher performance standard than non-disabled counterparts? Consider Wolffram v. Sysco Cincinnati (S.D. Ohio 5/19/15).

The plaintiff in Wolffram was a diabetic, and, as a result, needed extra time for bathroom breaks during the work day. Those bathroom breaks caused Wolffram’s performance to suffer on Sysco’s electronic performance monitoring system. Because Wolffram consistently fell below the minimum performance requirements, Sysco ultimately terminated him. Nevertheless, he defeated Sysco’s summary judgment motion on his disability discrimination claim. How? Because he claimed that other non-disabled employees were given more slack on the performance standards, that other employees “cheated” the system but were not disciplined or terminated.

Employers, it’s okay to have performance standards. It’s even okay to require that each of your employees, disabled and non-disabled, meet those standards. When you start letting those standards slip, however, you become exposed to claims from disabled employees who cannot otherwise meet the requirements because of their disability. Yet another example of how the EEO laws require uniformity of application in your workplace.

“You’re late again!” “Talk to my lawyer.”

I’m timely to a fault. I hate being late, and go to great lengths to ensure that I am never tardy for anything. I think it’s annoying to those around me, or least those I live with. Just ask my kids.

Do you have the opposite problem with your employees? Do you have employees who cannot show up for work on time no matter what? Well, it appears there might be a medical explanation for their chronic lateness.

Doctors have begun diagnosing individuals with chronic lateness, a condition caused by the same part of the brain affected by those who suffer from Attention-Deficit Hyperactivity Disorder. There has even been a study published supporting this diagnosis. That’s the bad news. The good news? The American Psychiatric Association does not recognize “chronic lateness” as a condition.

Of course, just because the APA hasn’t blessed chronic lateness does not mean that employees won’t try to use it as an ADA-protected disability. And, given how broadly the ADA now defines “medical condition,” they might have an argument to make. Don’t lose too much sleep over this, however. Just because an employee has a “disability” doesn’t mean you have to accommodate it. How do you accommodate a chronically late employee? Permit them to come late and stay longer? If you work production or other shifts, for example, that’s awfully hard to do.

Can I envision a situation in which the ADA will protect a chronically late employee and require that you provide an accommodation? Maybe. But, in the grand scheme of HR issues you need to worry about, this one falls pretty low on the scale. If nothing else, it shows just how broad the ADA has become in potentially covering a wide breadth of physical and mental health issues.

Putting together the puzzle on off-duty emails and overtime

Employers, I can see the writing on the wall, and it’s not looking good for your continued reliance on your non-exempt employees using their smartphones off-the-clock.

In the past few days, this issue has picked up a ton of momentum. First, the Wall Street Journal ran an article entitled, “Can You Sue the Boss for Making You Answer Late-Night Email?” Then, the Wage & Hour Litigation Blog reported that the Department of Labor’s Wage & Hour Division announced a request for information regarding “the use of technology, including portable electronic devices, by employees away from the workplace and outside of scheduled work hours outside of scheduled work outside of scheduled work hours.” Finally, the ABA Journal reminded us that the same Wage & Hour Division will likely raise the salary floor for exemption eligibility from $23,600 a year to $50,000 a year. This significant bump in the salary test will remove a large chunk of your employees from many of the FLSA’s key overtime exemptions.

What does all this mean? It means that you need to take a long, hard, look at which of your employees you are requiring to connect when they are “off-the-clock.” If you are requiring your non-exempt employees to read and respond to emails after their work day “ends,” you need to examine whether the FLSA requires that you pay them for that time (more often than not at a 1.5 overtime premium).

I’m pretty certain that the Department of Labor consider this time compensable, but I’m not so sure. Even if reading and replying to work-related email is compensable “work,” I’m not convinced that employers should have to pay employees for it. Most messages can be read in a matter of seconds or, at most, a few short minutes. The FLSA calls such time de minimus, and does not require compensation for it. “Insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.” Think of the administrative nightmare if an HR or payroll department has to track, record, and pay for each and every fraction of a minute an employee spends reading an email.

Nevertheless, if you want to eliminate the risk over this issue, I suggest you consider a couple of steps:

  1. Audit all of your employees for their exempt status. This audit will ensure that you have your employees properly classified as exempt versus non-exempt.
  2. Consider implementing an email curfew for your non-exempt employees (which has its own pros and cons).

This issue is not going away any time soon, and illustrates the difficulty the law has keeping up with the stunning pace of technology.

For more on this important issue, I recommend Just how nervous should companies be about FLSA lawsuits over employee smartphone use? (Hint: very) via Eric Meyer’s Employer Handbook Blog.


New poll reveals continued risk in Googling job applicants

According to a recently published Harris Poll, 52 percent of employers use social media to research job candidates. This number is up from 43 percent in 2014 and 39 percent in 2013.

What information are employers looking for?
  • 60 percent are looking for information that supports their qualifications for the job.
  • 56 percent want to see if the candidate has a professional online persona.
  • 37 percent want to see what other people are posting about the candidate.
  • 21 percent admit they’re looking for reasons not to hire the candidate.
The same poll found that 35 percent of hiring managers who use social media to screen applicants have sent friend requests or otherwise attempted to connect with applicants online. As stunning as that number is, it’s even more stunning that 80 percent report that job seekers report accepting such requests. 

Employers, please stop the insanity. I’m not treading new ground here by telling you that you are taking a huge risk by Googling or Friending applicants without proper checks in place to guard against the disclosure of protected information. “What types of information,” you ask? How about information about the individual’s medical history or religious preference, for starters. 

Yes, there are a host of reasons to engage in these searches. Indeed, I believe that, in a world of increasing transparency online, employers take a risk by not including Facebook in their pre-employment background searches. But, it needs to be part of larger background screening program. And, you need to ensure that you have the right checks in place to keep protected information (such as EEO stuff) as far away from the decision makers as possible. 

How do you do this? Train someone external to your hiring process to perform the searches, and provide a scrubbed report to those internal to the hiring process. These scrubbed reports should be void of any protected information, while including any info relevant to the hiring decision (such as whether the applicant has ever trashed an ex-employer online, or disclosed an ex-employer’s confidential information, or exhibits poor judgment by posting inappropriate or harassing stuff).

And, for god’s sake, please stop Friending job applicants. It’s just plain creepy.

Employment Law Blog Carnival: The “Wreck of the Old 97” Edition #ELBC

On September 27, 1903, the Old 97, a Southern Railway mail train running between Washington DC and Atlanta, Georgia, derailed near Danville, Virginia. The wreck inspired a famous ballad (most famously covered by Johnny Cash and Hank Williams III), which, in turn, inspired the Old 97’s to name their band some 70 years later.

I’m not shy with my love for the Old 97’s. Part of my adoration stems from how great their music is. And it’s not just the jangly vibe that kills on an album, or in a bar, or in a concert hall. Rhett Miller writes some of the best lyrics you will ever find, with most songs focusing on love, heartache, booze, or some combination of the three. The rest of my love stems from how cool they’ve been to my daughter, Norah (here and here).

Regardless the reason, my favorite band gets billing as the honoree of this month’s Employment Law Blog Carnival, as we look at the month’s best blog posts through the swarthy lens of some of the Old 97’s best songs.



This is the story of Victoria Lee
She started off on Percodan and ended up with me
She lived in Berkeley ’til the earthquake shook her loose
She lives in Texas now where nothin’ ever moves

Poor Victoria Lee had a rough go of it. Narcotics and one-night stands. What if your corporate wellness program reveals an employee like Victoria. Employment Essentials has some suggestions, in The EEOC Asks: Is Your Corporate Wellness Program Really Voluntary?


The New Kid

The new kid, he’s got money
The money I deserve
He’s got the goods
But he’s not good for his word

This song hold a real special place in my heart (see above, about my daughter). When you hire a new employee, do you know how to handle trade secrets and restrictive covenants? Jesse R. Dill at Walcheske & Luzi, in Wisconsin Supreme Court Adds New Twist to Restrictive Covenant Law, and Heather Bussing at HR Examiner, in People Are Not Trade Secrets, offer some suggestions.


Over the Cliff

Please don’t call me cool just call me, “A⌇⌇hole”
’Cause I will be a beggar not a king
And the devil don’t care if you’re a fish or you’re a stick
Yeah, I’m goin’ over the cliff

Has the NFL gone over the cliff with Deflategate? Did the league screw the pooch by choosing the wrong investigator? Lorene Schaefer’s Win-Win HR, in Given the Stakes, Should the NFL Have Selected a Different Investigator in Deflategate?, has some thoughts on what Roger Goodell should have done.


Wish the Worst

I hope you crash your momma’s car
I hope you pass out in some bar
I hope you catch some kinda flu
Let’s say I wish the worst for you

Crashed cars and the flu are certainly bad. The Mad Pooper, though, is clearly worse, says Eric Meyer’s Employer Handbook Blog, in Well, that stinks! Doo-doo creates a discrimination claim.


Four Leaf Clover

I got a lucky silver dollar
My granddad gave it to me now he’s dead
Times like this I wish that I could join him
Might just stop this pounding in my head

How lucky will franchisors feel when the NLRB finally clarifies its stance on joint employers? Phil Miles’s Lawffice Space shares NLRB GC on Joint Employers.


Every Night Is Friday Night [Without You]

Now I’m no saint
But I ain’t such a freak
On the days of the week
I work hard, hard

If an employee works hard, but feels he or she is getting the short end of the pay stick, will the FLSA cover their oral complaints? Doug Hass’s Wage & Hour Insights offers Second Circuit Extends FLSA Anti-Retaliation Provision to More Oral Complaints.



Eighteen-hundred miles from this old niteclub
A girl is turning twenty-two today
How am I supposed to entertain you?
My fingertips are worthless when my mind’s so far away

Long distance relationships certainly present their problems. What about remote employees? Read 6th Circuit Holds That Regular and Predictable On-Site Job Attendance is an Essential Function via Randy Enochs’s Wisconsin Employment & Labor Law Blog



Some day somebody’s gonna ask you
A question that you should say yes to
Once in your life
Maybe tonight I’ve got a question for you

“Question” might be (is?) the most romantic song ever written. Meanwhile, John Holmquist, at his Michigan Employment Law Connection, warns about another (much less romantic) question, Arbitration … be careful what you ask for, while Donna Ballman, at her aptly titled Screw You Guys, I’m Going Home, asks, What Did The Florida Legislature Do For Employees? Diddly squat, with one silly exception.


Let’s Get Drunk & Get It On

Take you to a cheap hotel out on the interstate
Well you look so great to me
This is the perfect place for a rendezvous
Its got a rotten view but the ice is free
Let’s drink whiskey and do it
all night long
Let’s get drunk
and get it on

Believe it or not, “Let’s Get Drunk…” is also a romantic song; don’t let the catchy title fool you. Be careful about getting it on at work, warns Dan Schwartz, at his Connecticut Employment Law Blog, in 3 Mind-Blowing Tips For Employers About Sexual Harassment From Cosmo.


Murder (Or A Heart Attack)

And I told the neighbors, I put pictures up
And handed out some flyers at the show
And the whole town speculating
Situations could’ve been avoided if I’d only shut the window

One of the band’s biggest hits tells the story of a lost cat that escapes through an open window. You can imagine the investigation that followed to bring the kitty home. “What about investigations at work,” you say? I have you covered, via Ari Rosenstein’s Small Biz HR Blog, in Conducting Effective (and Legal!) Workplace Investigations, and Stuart Rudner at Rudner McDonald, in Employees: Honesty in the Course of a Workplace Investigation Pays Off.



When I first met Doreen
She was barely seventeen
She was drinking whiskey sours in the bar

Sex with a minor at work? Check. What if it happens only once? Did the 4th Circuit’s recent decision spell certain doom for employers? Robert Fitzpatrick on Employment Law provides a nice summary, in Fourth Circuit Overturns Decade of Precedent in Blockbuster En Banc Hostile Work Environment Decision, while Robin Shea’s Employment & Labor Insider, in Is this new harassment decision the end of the world for employers?, thinks the reaction to this decision is way overblown.



I got a timebomb in my mind Mom
I hear it ticking but I don’t know why
I call the police but they don’t like me
I hear ‘em whispering when I walk by

This month’s carnival ends the same way every Old 97’s show ends, with the raucous riffs of Timebomb, from 1997’s Too Far to Care. If you have a timebomb in your workplace, I bet the FMLA has something to do with it. Janette Levey Frisch’s The EmpLAWyerologist suggests how to handle an employee abusing FMLA, in Is Your Employee Abusing Her FMLA Leave?

Philip Miles, author of Lawffice Space and all around good guy, will host next month’s Employment Law Blog Carnival, on June 17. If you want to participate, email Phil a link to your employment-law-related blog post by June 12.

Because I hosted this month’s Carnival, WIRTW will not run this Friday, and will return with to its regularly featured slot next Friday, with edition #368.


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