Can an Evangelical Christian Ask For a Religious Accommodation? (re: Sharing His Faith)

Imagine this.  You're an evangelical Christian, and that means you're called to spread the good word to anyone and everyone.  It just so happens that you're a manager of people, many of whom don't share your exact beliefs.  Probably not going to end well if you're convinced that you have to spread the word as a manager, right?  Just happened to a guy I'll call "Mr. Weathers" at Fedex.  Read it and brace for impact - More from HR Morning:

"Weathers described himself as a conservative evangelical Christian. He was a member of an internal organization of Christian FedEx employees, and he spoke at company sales conferences about his faith.  But his beliefs apparently caused some conflict in the workplace. One of his direct reports filed a complaint alleging that Weathers discriminated against her.

She alleged that Weathers quoted scripture to her on numerous occasions, and that he had recited a portion of the Bible that says a “slave should be obedient to his master” — meaning that the employee should be obedient to Weathers."

Slave reference rationalized through Christian beliefs. Ok!  I'm guessing this is where the boot is going to come down on Weathers, because let's face it, you can't have that.  FedEx did what you would probably do, which is to tell Weathers he managed people of various beliefs and probably needed to tone down the rhetoric and just manage:

"FedEx officials investigated, talking to a range of employees about Weather’s behavior. Some employees raised questions about Weathers’ leadership style, but the general consensus was that he treated co-workers fairly. 

FedEx concluded that Weathers hadn’t violated any company policies. But it issued him a letter of “counseling” — a form of discipline that’s less serious than a letter of “warning” — and told him discussions of religion with other employees “must cease.”  The reason: FedEx felt that allowing Weathers to continue to talk about his religious beliefs would create a hostile work environment for his co-workers."

But it's never that easy, right?  Weathers tested the waters and asked a loaded question related to what he could do based on his religious beliefs.  He was later fired and then sued, saying he was fired when he asked for a religious accommodation he never got an answer to:

"A short time later, Weathers sent an email to his supervisor and an HR rep, asking for clarification on the ban of religious discussion. As an evangelical Christian, Weathers said, he was obligated to answer any religious questions he was asked.  Weathers didn’t receive a response to this email, which he characterized as a request for religious accommodation.

A few months later, Weathers was demoted for performance reasons and later quit. He then sued FedEx for religious discrimination, failure to accommodate his religious beliefs, hostile work environment and emotional distress.

The court tossed all of Weathers’ claims except religious accommodation."

That's a doozy.  An evangelical Christian who is also a manager of people.  A cease and desist from the company related to discussion of religion.  A request for clarification on what he could discuss that later was positioned as a request for religious accommodation.

This is where your head explodes as a HR pro on a Wednesday afternoon.  You're welcome.  

TOO GOOD NOT TO SHARE: Jon Hyman and the EMPLOYER Bill of Rights...

Jon Hyman at the Ohio Employer's Law Blog recently came across some opinion that suggested employees really don't have enough rights in America.

So he did what any other reasonable person would do.  He listed 15 huge classifications of laws that have been passed over the past 50 years protecting employees, then he went bat shit crazy on the author by riffing an EMPLOYER'S BILL OF RIGHTS.  It's too good not to share - go read it here now, and I'm sharing the first three of a list of ten "rights" that employers deserve to get you to read the whole thing.  Here are the first three employer rights:

1. The Right to Hire on Qualifications and Fire on Performance: We want to be able to hire a white male under the age of 40 without fear of a lawsuit from every protected class we did not hire. We want to be able to fire without the fear of an expensive lawsuit when you fail to perform.
2. The Right to Criticize: Every performance review is not an attempt to push you out the door. Believe it or not, every employee we hire represents an investment by us. We want that investment to bear a substantial return. Criticism is meant be a constructive attempt to help you improve, not a destructive set-up for you to fail.
3. The Right to Control Operations: We know how many people we need to employ, how many shifts we need to run, and how many facilities we need to operate. Most importantly, we know what can afford to remain profitable. If we have to shutter or relocate a plant, lay people off, or furlough hours, it’s not because we are discriminating against you; it’s because it’s necessary for us to remain open and able to employ anyone at all.

I'm nominating Jon Hyman as the Czar of Common Sense.  Go to his blog and subscribe now - one of the best in a crowded employment law blog space.

Unemployment Discrimination: Monster.com Has It Right, People (Job Boards are PLATFORMS)...

Repeat after me: Job Boards are PLATFORMS, not arbitrators of quality, fairness or morality.

What's a platform?  A platform is where the masses can come and use technology in a variety of ways.  Think Facebook, think Amazon.

While not as broad as Facebook or Amazon, Monster.com and CareerBuilder are platforms.  They're present to help companies get the message out about their open jobs. Morons use Facebook a good bit.  Guess what?  Morons use Monster.com as well, but that doesn't mean that Monster should bow to pressure like the following outlined over at the Huffington Post:

"For the past several months one labor advocacy group has continuously hammered companies that list job postings discriminating against the jobless.

National Employment Law Project on Wednesday lobbed its latest attack on CareerBuilder.com, which NELP says won't stop posting ads that stipulate applicants must be "currently employed."

"Employers and firms continue to post ads that refuse to even consider the unemployed, regardless of their qualifications," executive director of NELP, Christine Owens, said in a statement. "It's unfair to workers and bad for the economy. We need to be putting Americans back to work, not stigmatizing and prolonging their unemployment."

NELP pointed to five recent listings on CareerBuilder.com with discriminatory language. The unveiling of the job listings by NELP comes just one day after senators Sherrod Brown (D-Ohio), Richard Blumenthal (D-Conn.) and Kirsten Gillibrand (D-N.Y.) sent a letter to CareerBuilder.com CEO Matt Ferguson asking the website to prohibit companies form posting job ads that discriminate against applicants based on employment status."

CareerBuilder looks to be on the fence, but other job boards are committing one way or another:

"Last month, Indeed.com announced that it would start blocking ads excluding the unemployed from openings saying, "Indeed.com strives to proved the best job search experience for job seekers. Our policy is to exclude job listings that do not comply with federal or local laws related to discriminatory hiring practices as well as job listings that discriminate against the unemployed."

Also last month, about 250,000 Americans sent petitions to Congress opposing hiring practices that discriminate against the unemployed.

Another website, Monster.com, has refused to take down its job postings with discriminatory language, and has stated that while it opposes discrimination, the company "believe[s] it is the responsibility of the employers themselves, rather than Monster, to decide what they say in their job postings and how they want their company to be viewed."

Good for Monster.com.  It's a PLATFORM, people.  Those companies just did you a favor by sharing how caveman-like they are by showing their true colors.  You should be thanking Monster.com for sticking to it's guns, not whining about it and expecting the government to put Monster into a legislative full nelson.

Hate the game.  Don't hate a job board that will show you how moronic .02% of the companies listed are.  Monster.com just did you a solid.

Groupon Lawsuit: Guess the FLSA Infraction...

Workforce reported earlier this week that Groupon, the hot Chicago-based startup that basically defined the "daily deals" category, has been sued in "class action" style for unpaid overtime.  It's a somewhat tricky suit - not your garden variety unpaid overtime class-action, since it involves sales professionals. Hmmm - let's dig into a bit of the workforce article (find the whole thing here):

"The suit says the Chicago-based 3-year-old daily-deal business didn't pay sales employees overtime, violating wage laws, or didn't pay them enough.  “It's a systemic problem,” said Douglas Werman, a Chicago-based attorney who filed the suit on behalf of Dailey and is seeking class-action status on behalf of her and other sales reps allegedly cheated out of overtime pay.

His firm, Werman Law Office, won the largest wage-and-hour case in Illinois history two years ago, an $11 million settlement against Troy, Michigan-based staffing firm Kelly Services Inc.

The overtime suit could become a problem for the company, which employs more than 4,800 sales reps worldwide out of a workforce approaching 10,000. Roughly 1,000 of the reps are in the U.S. and therefore covered by federal labor laws.

On average, the reps are paid about $32,500 a year, plus commissions equal to a percentage of the value of the deals they line up with restaurants, salons and other local businesses."

Most of you have salespeople that are out beating the street, and most of you classify those sales pros as exempt, meaning they're not generally eligible for overtime.  Which begs the question, why are the Groupon reps eligible for overtime if yours are not?

What's your take?  Think about it and I'll give you my best guess below.  Thinking....(music in background)

Got your answer?  Here's mine:

At a 32K base and knowing a bit about the Groupon model, my take is that these reps might be classified as non-exempt and overtime eligible due to the fact that they're more telemarketer than sales pro.  I'm betting that most of these people report to HQ in Chicago and smile and dial via the phone, rarely seeing customers in the field.  Also playing into that model is the fact that they're probably hooked up to a predictive dialer, which means they're fed one call right after another in their territory and they're banging it out like a telemarketer.

Which means that they don't control what they work on and when they work on it, which is the first test of independence I usually throw up for poor man's overtime eligibility test.

That's nothing but a guess, but I'm thinking it's directionally accurate.  What's your take?

PS - you have to love the model this law firm is operating under.  I can imagine the tweet from a partner - "just took down @kellyservices for 11 large.  will scan #monster for companies who are mis-classifying sales pros after the celebration.  #winning

The Mets and MLB Say No to 9/11 Hats Due to Funky Non-Solicitation Policy...

Say it with me: Too many of the decisions we make are driven by fear of confronting things that suck.

Case in point:  The New York Mets and Major League Baseball forbid players to wear 9/11 hats on Sunday.  To be more clear:  The Mets and MLB said no to 9/11 hats in NYC, on the 10 year anniversary of 9/11.

Why would they do that you ask?  If you're in HR, you know there's a horribly flawed policy interpretation coming up.

ESPN's Jason Stark reported this morning that the real reason the Mets and MLB said no was to have the ability to enforce their strict uniform rules in the future.  Apparently, the Washington Nationals had asked to wear "Seal Team Six" hats a few weeks back, and were told "no" under the same policy.

Of course, saying no to 9/11 hats wasn't about having the ability to say no to "Seal Team Six".  It's about saying no to the owner who wants to wear "Masonic Lodge 234" hats because that's what he's into.  You get the vibe...

"We're saying no to this one so we can say no to the terrible ones that are coming.  It's a slippery slope"

Yes - just like the non-solicitation rule you have at your company.  You say no to distributing marketing material of great local organizations because you don't want to deal with Jenny from accounting being pissed off because she can't distribute 200 flyers in the call center.  And more importantly, also because you want the ability to say no to the Teamsters if they want to distribute their stuff.  Legally, you have to do that.

"We're saying no to this one so we can say no to the terrible ones that are coming."  9/11 hats in NYC on the 10-year anniversary of...wait for it...9/11.

Use this example to say no to an incredibly inept policy interpretation in your company today, and in doing that, say yes.  Give your team some credit for knowing the difference between good and bad.

FRIDAY MORNING QUARTERBACK: Would You Approve This Termination?

Got a good one for you this morning.  Let's say you're the superintendent of your school district and you read about an employee of your school being thrown in the pokey and charged with misdemeanor child abuse, misdemeanor possession of a weapon on educational grounds and misdemeanor resisting arrest, delaying or obstructing a public officer - all for an incident that involves choking a 12-year old child in an altercation in his off duty gig as an assistant middle school football coach.  Here's some more detail:

"According to a report filed with the Rowan County Sheriff’s Office, it all started at the school around 5 p.m. after football practice.

Head football coach Douglas Pruitt told deputies that Jared John Gallagher was walking with the 12-year-old boy to the locker room after practice and choked him.

Pruitt tried to intervene, but Gallagher tried to fight him, according to the report. A parent then got involved as Pruitt called 911 for help.  When deputies arrived they approached Gallagher and asked him to put his hands behind his back.

Gallagher did not comply, according to the report, and was tased by the deputy. Gallagher reportedly pulled the prongs out of his body and was shocked again by another officer behind him, the report stated. Gallagher was shocked for a third time and fell to the ground where he was restrained by officers.

Deputies discovered a 9 mm pistol with 79 live rounds of ammunition inside Gallagher’s truck, according to the report. That had parents worried because Gallagher posted his $5,000 bond last week."

Dude, they couldn't put him down when tased - he was pulling the prongs out of his body. 

In a related, yet ironic note from the article, he's actually the In-School Suspension (ISS) Assistant at the school in question.  Yes, he's the real life equivalent of Dick Vernon, the ISS guy in Breakfast Club.

What say ye?  Term now or not?  Get ready to get attacked in the comments if you say "suspend with pay until we sort through this".

Bonus Dick Vernon quote to make you think about this case: "That's the last time, Bender. That's the last time you ever make me look bad in front of those kids, you hear me? I make $31,000 a year and I have a home and I'm not about to throw it all away on some punk like you. But someday when you're outta here and you've forgotten all about this place and they've forgotten all about you, and you're wrapped up in your own pathetic life, I'm gonna be there. That's right. And I'm gonna kick the____ out of you. 

h/t: Deadspin.com

Non-Competes: You're a Sucker If You Don't Think They Apply To HR

So you locked down your sales team and the techies who drive the value of your intellectual property (IP) with a solid, enforcable non-compete executed at the time of hire.  Sure they balk and complain, but you get most of those signed.  Congrads, smart move.

What's that?  You're glad you don't have to do the same with your HR team?  Really?  You don't have your HR Managers, Director and VPs and all your recruiters locked in to a non-compete?

You're either a sucker or rationalizing to avoid the conflict.  Of course, your top HR talent and anyone who recruits should have to sign a fair non-compete.

Think about it - we're talking a narrowly drawn non-compete.  Your top HR team members (I say manager and up) and anyone who recruits should have to sign one.  We're not preventing them from working by signing the non-complete, we're simply agreeing that they won't take all the training, contacts and candidates that they've cultivated during their time with you to your most direct competitors.

A narrowly drawn non-complete doesn't mean HR pros can't find work.  If fact, the HR game is one of the best in terms of its talent being able to cross industries and work.  That "career portability" means your HR team can sign a non-complete that's properly drawn (example - we're a software company and you can't go to work for another software company in our city/industry or that recruits developers proficent in the same programming language as our company) and find work pretty easily if they're talented in the HR game.

Why wouldn't you ask them to sign a fair non-compete?  Because you either don't think they're talented enough to get the same job with your top industry competitor, or you don't want the drama of walking them through it and requiring it.

Either scenario sounds dicey to me.  

Draft the non-compete and put it in front of them.  Explain the narrow parameters and require them to sign it.  You'll be happy you did somewhere down the line.

It's No Fun Being an Illegal Alien...

Today's post is a pointer to a great post from Dawn Burke over at Fistful of Talent, where DHB is ranting a bit about the new tough immigration law that's on the books in 'Bama.  Doesn't really matter whether you watch Fox News or MSNBC, you probably don't know everything you need to know about the law, like this gem from DHB:

"All businesses over 25 employees must use e-verify.  If they do not, then with three violations your business will be permanently closed.  If e-verify cannot confirm the status of the applicant and within 8 days the employee contests the findings, you cannot take adverse action on that employee until e-verify can confirm.  This could take months."

That got your attention, eh?  Jump over and read the whole post.

While we're on the subject of illegal aliens, tell me if these lyrics ring true:

"Got out of bed, wasn't feeling too good
With my wallet and my passport, a new pair of shoes
The sun is shining so I head for the park
With a bottle of tequila, and a new pack of cigarettes

I got a cousin and she got a friend
Who thought that her aunt knew a man who could help
At his apartment I knocked on the door
He wouldn't come out until he got paid

Now don't tell anybody what I wanna do
If they find out you know that they'll never let me through, 'cos

It's no fun being an illegal alien, no
It's no fun being an illegal alien"

If you're over 35, you know that song: Illegal Alien by Genesis.  If '83 is your birthdate, watch the video and join the Gen X'ers after the jump below.

What did we learn from that video?  Here are my notes:

1. Lip syncing production values have come a long way.  Phil Collins and the boys did this in two takes, max.

2. Our sensitivty towards our friends from the South has changed over the years.  They'd be trying to put Genesis in jail right now for this video, but of course, Genesis would argue that they're really getting attention for the plight of the immigrant worker.  Even if one of the secondary members of the band just wanted to wear sunglasses and a mustache.

3. I spent way too much time watching "Friday Night Videos" on USA.  Don't act like you don't know.  If you're 35 or over, you know.

Read Dawn's post.  And watch this video.

Employment at Will: Why Coke People Won't Get Caught Dead With Pepsi...

Driving down the street the other day, I needed a product that a big Fortune 1000 routinely sells.  My flippant reaction was to pull into the location that I'm used to, until I remembered: We're in the final stages of potentially getting business from their competitor.

Result: I won't test Karma, I went out of my way to find and patronize the competitor.  And if we get the business, I'm gone from the Fortune 1000 in a big way for a while.  

You don't tug on Superman's cape.  You don't spit into the wind.  And you don't buy the brand of your sworn enemy for any reason.  Unreasonable?  Maybe, but the fact remains for every person inside a company that thinks it's OK to buy a competitor's brand, there are 5 who would classify you as an unloyal backstabber.

Think about Coke vs. Pepsi.  A $1 purchase means something much greater to players on both sides.

Here's another story about brand loyalty.  Oklahoma State football coach, Mike Gundy, was having work done on his house and a worker showed up in an Oklahoma Sooners t-shirt.  Let's just say it didn't go well; more from Yahoo Sports:

"A contractor is suing Gundy, Oklahoma State's head coach, and his wife Kristen, claiming the couple fired him for wearing an Oklahoma shirt to their house. Brent Loveland, a trim specialist who was hired to do work on the Gundy's new house in Stillwater, showed up to his first day of work in an Oklahoma baseball T-shirt.

The suit states that Mike Gundy and Loveland verbally agreed in February that Loveland would perform trim installation at an overall payment of $80,600. The alleged confrontation occurred on what would have been Loveland's first day on the job.

According to the suit, Gundy approached Loveland and said, "How dare you come into my house and offend my wife?" The suit states that when Loveland asked what Gundy was referring to, the coach replied by saying, "That (expletive deleted) shirt you have on."

Loveland claims that he dressed in the dark that morning and was unaware that his shirt had an OU logo on it.

Gundy was asked about the incident after practice and said he couldn't comment and that he would let his attorney handle it.

Loveland is seeking damages in excess of $10,000 and said in the suit that he lost as much as $30,000 in potential money by turning down other jobs to work on the Gundy's house."

I know - $80K for trim.  You and I live in different worlds, as does the contractor.  The type of world where you don't use lights to get dressed and you have low awareness of logos on your apparrel.

But - the world's the same in this regard - patronizing the wrong brand can get you fired - directly or indirectlly - whether it's an 80K per purchase world or a $1 per purchase world.

This post does not alter the employment at will relationship with your employer.  It just makes you more aware of how thin the ice actually is.

BONUS TRACK - Classic Video of Mike Gundy's "I'm a Man" video here... 

NLRB Case Against Boeing Puts Obama on Defensive, Proves Power of Appointed Seats...

You probably missed this last April - first, some details of legal action against Boeing from the NLRB earlier this year:

"In what may be the strongest signal yet of the new pro-labor orientation of the National Labor Relations Board under President Obama, the agency filed a complaint Wednesday seeking to forceBoeing to bring an airplane production line back to its unionized facilities in Washington State instead of moving the work to a nonunion plant in South Carolina.

In its complaint, the labor board said that Boeing’s decision to transfer a second production line for its new 787 Dreamliner passenger plane to South Carolina was motivated by an unlawful desire to retaliate against union workers for their past strikes in Washington and to discourage future strikes. The agency’s acting general counsel, Lafe Solomon, said it was illegal for companies to take actions in retaliation against workers for exercising the right to strike."

Of course, Boeing wasn't shutting down its facility in Washington.  It was moving production capacity to South Carolina, as a hedge to being held hostage by future strikes:

"The labor board said that in 2007, Boeing announced plans to create a second production line that would make three 787 Dreamliner planes a month in the Puget Sound area to address a growing backlog of orders. That was to be in addition to a line already making seven Dreamliners a month there. In October 2009, Boeing said it would locate its second line at a new, nonunion plant in South Carolina.

The N.L.R.B. asserted that on numerous occasions Boeing officials had communicated an unlawful motive for transferring the production line, including an interview with The Seattle Times in which a Boeing executive said, “The overriding factor was not the business climate. And it was not the wages we’re paying today. It was that we cannot afford to have a work stoppage, you know, every three years.

Boeing criticized the timing of the N.L.R.B.’s complaint, saying it came when construction of the factory in North Charleston, S.C., was nearly complete and after 1,000 employees had already been hired there.

Boeing said on Wednesday that none of the production jobs in South Carolina had come at the expense of jobs in Washington. It noted that its unionized employment in the Puget Sound area had increased by 2,000 since it announced its decision to expand in South Carolina.”

That's right kids - two existing production shops.  One union, one not.  The company decides to move some production to a non-union plant and in the time the company announces its intent, employment at the union plant grows by 2,000 jobs.  And the NLRB files this suit - after construction is almost complete.

What's wrong with spreading production of a product out across two plants, one union and one not, so you don't run the risk of not being able to deliver product if a stirke comes?  President Obama started ducking and weaving on the issue last week:

“As a general proposition, companies need to have the freedom to relocate -- they have to follow the law, but that's part of our system,” Obama said. “What I think defies common sense would be a notion that we would be shutting down a plant or laying off workers because labor and management can't come to a sensible agreement.

“And obviously, the air -- airplane industry is an area where we still have a huge advantage.  I want to make sure that we keep it,” the president added.

That's some official fence-sitting gibberish.  What's it all mean?"  My wife was a prosectutor for over a decade, and anytime I'm lukewarm about voting, she pushes me to remember that those elected have a lot of power to appoint Federal judges - who are the source of a lot of policy power.

The NLRB case against Boeing is a good example.  You can beat back the Employee Free Choice Act, but never forget - the people appointed by your elected officials control a lot of the power related to policy.

Be interesting to watch this one unfold in South Carolina...