Do you know? Employee alcohol testing

Under the ADA, an employer is prohibited from making disability-related inquiries and requiring medical examinations of employees unless if the inquiries are job-related and consistent with business necessity. In September, the EEOC filed suit against Pittsburgh-based U.S. Steel, claiming that it violated these rules by requiring random alcohol testing of probationary employees.

According to the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees, the ADA differentiates between drug testing and alcohol testing. The ADA does not regulate the drug testing of employees because drug tests do not qualify as medical examinations. Blood, urine, and breath analyses to check for alcohol use, however, are considered medical examinations regulated by the ADA. Employers are permitted to maintain and enforce rules prohibiting employees from being under the influence of alcohol in the workplace. Employers are also permitted to conduct alcohol testing pursuant to such a rule if they have a reasonable belief that an employee may be under the influence of alcohol at work.

Random testing is just that, random. It is not tied to any reasonable belief about the employee’s on-the-job use of alcohol. I can make a very compelling argument that in any safety-sensitive position alcohol testing is job-related and consistent with business necessity. Nevertheless, and regardless of the circumstances, employers who intend to subject employees to alcohol testing should be mindful of these rules. Those that test without first consulting with employment counsel risk incurring the EEOC’s wrath.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? ABA/DOL’s Bridge to Justice (or, Bridge Over Troubled Referrals)

A couple of weeks ago, the American Bar Association and the Department of Labor’s Wage and Hour Division announced an unprecedented collaboration called “Bridge to Justice.” It is an ABA-approved attorney referral system to connect those who file wage and hour complaints with the DOL to attorneys who will handle cases the DOL is not interested in pursuing. Here’s the quick and dirty, courtesy of the DOL’s website:

Beginning on December 13, 2010, when FLSA or FMLA complainants are informed that the Wage and Hour Division is declining to pursue their complaints, they will also be given a toll-free number to contact the newly created ABA-Approved Attorney Referral System….

In addition, when the Wage and Hour Division has conducted an investigation, the complainant will now be provided information about the Wage and Hour Division’s determination regarding violations at issue and back wages owed. This information will be given to the complainants in the same letter informing them that the Wage and Hour Division will not be pursuing further action, and will be very useful for attorneys who may take the case. The Wage and Hour Division has also developed a special process for complainants and representing attorneys to quickly obtain certain relevant case information and documents when available.

Did I read that right? Will the DOL be providing the complaining party and the referred attorney “relevant case information and documents?” The DOL explains, in a short FAQ about its new attorney referral system:

Q: How does the ABA-Approved Attorney Referral Document Request process work?

A: A complainant who has received the toll-free number to the ABA-Approved Attorney Referral System after a Wage and Hour Division investigation will also receive a form to request the most relevant documents from her case file. These documents include the complainant’s own statement, the Wage and Hour Division’s back wage computations for the complainant, and copies of any documents the complainant provided to the Wage and Hour Investigator. The Wage and Hour Division will provide these documents expeditiously. The form also allows the worker or authorized attorney representative to request the case narrative from the file; however, it explains that requesting the narrative will delay the Wage and Hour Division’s response because it must be redacted. The letter sent to the complainant with notification of the Wage and Hour Division’s decision to not pursue the case will also include information about the violations found and back wages owed to the complainant.

In other words, the DOL will provide employees and the referred attorneys a roadmap to filing a lawsuit: the complainant’s statement, the nature of any violations found to have occurred, back wage computations, and the DOL’s own internal narrative.

It used to be that if the DOL declined to pursue a charge, there existed a better than average chance the claim would die. Now, lawyers will be lining up to receive a referral, along with a connect-the-dots claim. If this referral program doesn’t scare employers into conducting a proactive and comprehensive wage and hour audit to prevent these referral from taking place, nothing will.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Wrongful terminations for attorney consultations

Because Ohio employees working without a contract are at-will, an employer does not need a reason—good, bad, or otherwise—for termination. Yet, do you know that an at-will employee who consults with an attorney may find himself or herself protected from termination? Ohio, like most states, prohibits employers from terminating employees in circumstances that jeopardize a clear and well-defined public policy. Ohio courts conclude that an employee’s consultation with an attorney is worthy of such protection.

Chapman v. Adia Servs., Inc., is the most oft cited case in support of this rule:

[W]e hold that it is repugnant to the public policy of this state for employers to terminate employees for exercising their right to consult a lawyer. The courthouse door must be open to the people of Ohio, and it is not ajar when citizens may be fired for entering.

Other cases have extended this protection to employees who threaten to consult with an attorney and to employees who inquire about an employer’s policy regarding employees who sue the employer.

Employers should treat employees who consult with an attorney or threaten to consult with an attorney the same as they would any employee who engages in any other legally protected activity—with care, diligence, and fairness.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? The voluntariness of release agreements

The facts that led to the severance agreement in Gascho v. Scheurer Hosp. (6th Cir. 11/19/10) [pdf] are what make employment law an interesting way to make a living. The legal issues surrounding the enforceability of a severance agreement, however, are what make this post worth reading.

Mary Ann Gascho, the plaintiff, was a 35-year employee of Scheurer Hospital. For the last 18 years of her employment, she was also married to the hospital’s President and CEO, Dwight Gascho. Dwight, it turns out, was having an affair with one of the hospital’s Vice Presidents. Around the time Mary Ann began to suspect her husband’s infidelities, he began physically abusing her. After Dwight admitted the affair and demanded a divorce, Mary Ann confronted the VP, calling her, among other things, “the whore next door.” That confrontation led to Dwight firing his wife. Cooler heads prevailed, however, when the hospital’s HR Director, Greg Foy, converted the termination into a three-day suspension. That suspension dovetailed into an FMLA leave.

Following the leave, the hospital offered Mary Ann a separation package. Foy presented her the agreement, explained and summarizing its key provisions, recommended that she hire a labor-law attorney to review the document, and told her that she would have 21 days to sign the agreement and seven days to change her mind if she did sign it. There was no physical harm or threats of physical harm between the day she was fired and the day she signed the agreement. Her husband, though, did use various methods of persuasion to try to convince her to sign, including lashing out and yelling at her. After consulting with her children, Mary Ann ultimately signed the agreement.

When she sued the hospital a year later for discrimination, the district court dismissed her claims as barred by the separation agreement. The 6th Circuit agreed, examining the following five factors to determine whether the release was “knowing and voluntary”:

1. Plaintiff’s experience, background, and education.
2. The amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer.
3. Clarity.
4. Consideration.
5. The totality of the circumstances.

1. Mary Ann’s experience, background and education. The court concluded that a nurse—with more than three decades of experience and who rose to a management position—could comprehend the meaning and effect of a settlement agreement.

2. Time to consider the waiver and opportunity to consult an attorney. The hospital gave Mary Ann 21 days to review the agreement and seven days to change her mind after signing it. While Title VII does not have a statutory requirement for waivers, the 21 days mirrors the OWBPA’s requirements for waivers of federal age discrimination claims. “This congressional policy in a related civil rights statute bolsters the conclusion that a 21-day consideration period and a seven-day reconsideration period suffices to establish a legitimate waiver.” That timeline gave Mary Ann ample opportunity to consider the agreement and consult with an attorney.

3. The clarity of the waiver. The waiver “releases and forever discharges [Scheurer] Hospital … from any and all claims of any nature … based on any fact, circumstance or event occurring or existing at or before [Mary Ann’s] execution of this Agreement. [It] includes all claims whatsoever … including … claims under …Title VII of the Civil Rights Act of 1964.” According to the Court, “One does not need a law degree to grasp the import of these terms.”

4. Consideration for the waiver. In exchange for the waiver, the hospital offered Mary Ann a year’s salary plus other benefits, which was more than sufficient consideration.

5. Other relevant circumstances. Mary Ann claimed that she was under duress to sign the agreement. The court disagreed:

All bargaining, whether to buy a house, to take a job or to settle a dispute, comes with implicit economic and psychological pressures—that if the one party does not take the offer, it may go to someone else…. The better the offer, indeed, the greater the implied fiscal threat, creating the possibility that a claim of duress grows stronger the more generous the offer. 

That Gascho worried about having to file a lawsuit (and winning it) if she opted not to accept the settlement offer is precisely the kind of pressure anyone (not independently wealthy) would face in this context…. “No legal system can accept an assertion that ‘this contract was signed under duress because my only alternative was a lawsuit.’ That would eliminate settlement—and to a substantial degree the institution of contract itself.” …

Over one month had passed since the last act of physical violence…. Gascho had plenty of time to consider the agreement, plenty of time to rescind the agreement after signature and plenty of time to consult a labor attorney, as one hospital executive (Greg Foy) recommended she do. She spoke with several people before she signed the agreement, including friends and trusted family members (e.g., her children), and none of them advised her not to sign it. It is difficult to square these circumstances with the notion that Gascho’s husband coerced her to sign the agreement.

Like Mary Ann Gascho, anyone is free to challenge the knowing and voluntary nature of a release. As this case shows, however, it is very hard for employees to win these challenges.Courts treat settlement agreements as sacrosanct. If you resolve a case with an employee and obtain a signed agreement with a release that meets these criteria, you can ordinarily rest comfortably that you are free from future lawsuits brought by that employee.

Do you know? Post-employment retaliation

The typical retaliation scenario involves an employer firing an employee who complained about discrimination or engaged in some other protected activity. What happens, however, if the employer retaliates after the end of the employment relationship? Do the anti-retaliation laws reach these allegations of post-employment misconduct? The short answer is yes.

The logical place to start in deciphering this “yes” is with the statues themselves. Ohio’s anti-retaliation provision, O.R.C. 4112.02(I), makes it illegal

for any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code.

All of the federal anti-discrimination laws (Title VII, the ADEA, the ADA, and GINA) contain similar prohibitions. In Robinson v. Shell Oil Co. (1997), the U.S. Supreme Court concluded that the term “employees” in Title VII’s retaliation provision “includes former employees,” allowing an employee to “bring suit against his former employer for postemployment actions allegedly taken in retaliation.” Because of the similarity in language across the federal and state statutes, it’s safe to assume this result applies across the board.

What does this mean for employers? It means that retaliation does not stop on the last day of employment. It means that employers must treat ex-employees who have engaged in protected activity with the same kid gloves as current employees. And, it means that ex-employees can sue you for post-employment adverse actions such as:

• A negative job reference
• The filing of a lawsuit or counterclaim (with a large caveat)
• The denial of pension credits or other benefits to which the employee was entitled
• The filing of a law enforcement complaint
• Threats and ostracism

Just one more concept to build into your EEO training for your managers and supervisors.

Do you know? FMLA & bereavement leave (or, what to do when a supervisors calls an unauthorized leave request “cool”)

The FMLA covers a lot of family emergencies. Death, however, is not one of them. There is no situation in which the FMLA, on its face, provides for a leave of absence for bereavement. Lots of employers allow for bereavement leave for lots of situations, but it is not required by the FMLA.

That is, it is not required by the FMLA unless you promise otherwise. In Murphy v. FedEx National (8th Cir. 8/26/10), an employee sought and received FMLA leave to care for her hospitalized husband. When he died a week later, she took three days’ bereavement leave. Thereafter, she told her supervisor she needed 30 more days to “take care of things.” The supervisor responded, “OK, cool, not a problem, I’ll let HR know.” As it turns out, the extra 30 days was a problem for HR, which denied the request and terminated the employee, who had not returned to work.

The 8th Circuit was not all that sympathetic to FedEx’s claim that Murphy didn’t qualify for FMLA leave. The court focused on the supervisor’s statement, “OK, cool, not a problem, I’ll let HR know.” It concluded that one could easily interpret that statement to be an approval of the request for leave.

This is known as coverage by estoppel. While the FMLA does not cover bereavement leave, an employer’s representation, on which an employee reasonably relies to his or her detriment, will create coverage under the statute. In other words, if an employee, based on all the facts the circumstances, reasonably believes that the employer approved the FMLA leave, the employer cannot deny the leave request.

How do you avoid situations like these from cropping up in your workplace? You cannot require all leave requests be in writing, but there are certain steps you can take.

1. Train all managers and supervisors on the minutia of your leave policies. Anyone with any authority of any kind over employees must know what leave is authorized and what is not.
2. Require that all leave requests of any kind go through a designated central person or persons, like an HR manager.
3. Place a statement in your handbook that only leave granted by that central person or persons is authorized, and that no one else within the company has the authority or discretion to grant a leave of absence of any kind. That way, even if a supervisor tells an employee that leave is “cool,” it will not be reasonable for her to rely on that statement.

Do you want to read more on coverage by estoppel?

• Court adopts no-harm, no-foul approach to employer misstatements about FMLA coverage
• Don’t estop yourself into coverage
• Mind your (mis)representations
• Sixth Circuit holds that estoppel can bind a small employer to provide COBRA coverage

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? 10 provisions to include in severance and separation agreements

Last week, I wrote about problems in enforcing non-disparagement clauses in separation agreements. It got me to thinking—what other clauses should businesses prioritize for inclusion in separation agreements, other than the release and waiver? Here are my thoughts:

1. Consideration: A statement that the consideration provided to the employee is more than that to which the employee is otherwise entitled to employment by way of employment. Otherwise, the release and waiver could fail for the employee not receiving anything of value in exchange.
   
2. Confidentiality: A covenant as to the confidentiality of the agreement. You do not want other employees learning the terms of the separation, or that agreement was even reached. Otherwise, it could open the floodgates to other employees seeking separation packages.
   
3. Secrets: A covenant as to the confidentiality of employer’s confidential and proprietary information.
   
4. Return of Property: A covenant that all corporate property has been returned, or will be returned by a date certain.
   
5. Transition: A promise to reasonably cooperate with the employer as to the transition of job duties and responsibilities.
   
6. No-rehire: A promise that the employee will not apply for any positions in the future, and that the company is not obligated to consider him or her for future employment. Because there is some risk that a clause such as this could be viewed as retaliatory, indemnification language is not a bad idea.
   
7. No Liability: A statement that the agreement is not an admission of liability.
   
8. Governing law, Jurisdiction, and Venue: An agreement as to the law that will govern the agreement, and the jurisdiction and venue in which one must file any lawsuit regarding a breach of the agreement.
   
9. Entire Agreement: An integration clause, stating that the written agreement is the parties’ entire agreement, that no other written or oral agreements exist, and that the parties may only amend the agreement in writing signed by all.
   
10. Voluntariness: An acknowledgement that the employee read and understands the agreement, and had sufficient time and an opportunity to consult with his or her own legal advisor prior to signing the agreement.
    

What else are people including in their separation and severance agreements? Readers, did I miss any?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? The DOL is encouraging employee covert ops in your business

Six months ago, I wrote about the Department of Labor’s Wage & Hour Division’s launch of a one-stop web portal, We Can Help. Its stated purpose is to provide employees with information about their rights under federal wage and hour laws. At the time, I noted my concern that the most prominent part of this website is a section entitled, “How to File a Complaint.”

While trolling the We Can Help website over the weekend (yes, I know, the exciting life of an employment lawyer-cum-blogger), I came across a Work Hours Calendar [pdf]. The calendar encourages employees to track their arrival and leave times, start and stop times, meal breaks, and other breaks on a daily basis. The distinctions drawn between arrival versus start times and stop versus leave times suggests that the DOL is trolling for potential off-the-clock claims against employers. The calendar’s instructions shed some light on the DOL’s other goals, and lends further support to my belief that the DOL is prioritizing off-the-clock claims.

It is recommended that you keep all your pay stubs, information your employer gives you or tells you about your pay rate, how many hours you worked, including overtime, and other information on your employer’s pay practices. This work hours calendar should help you keep as much information as possible.

Employers must pay employees for all the time worked in a workday. “Workday,” in general, means all of the hours between the time an employee begins work and ends work on a particular day. Sometimes the workday extends beyond a worker’s scheduled shift or normal hours, and when this happens the employer is responsible for paying for the extra time. Usually, workers have to be paid for all the time that they work, including:

• Waiting for repairs to equipment necessary for work
• Time spent traveling between worksites during the workday
• Time spent waiting for materials during the workday
• Breaks less than 20 minutes long
• Time spent completing unfinished work after a shift

The form ends with the following ominous statement:

You work hard, and you have the right to be paid fairly. It is a serious problem when workers in this country are not being paid every cent they earn. All services are free and confidential, whether you are documented or not. Please remember that your employer cannot terminate you or in any other manner discriminate against you for filing a complaint with WHD.

Still think you can afford to put off that wage and hour audit?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Litigating disputes in court does not always make business sense

I believe that litigation is the worst possible way to settle disputes. This may come as a shock, considering that I am a litigator and trial lawyer. Consider, however, that when you decide to litigate, you resolve to pay me six figures for the following: to prepare and respond to discovery requests, produce and review documents, prepare for, take, and defend depositions, draft and respond to motions, and prepare for a trial that has less than a 5% chance of ever occurring. You also resolve to have years of your life and the lives of your employees sucked up by document productions, depositions, reviews of letters, pleadings, and motions, and court appearances. All the while, I’m also dealing with obstreperous opposing counsel (which drives up your cost even more) and an over-taxed court system that likely lacks the time, resources, and manpower your case deserves. In other words, in many cases you are tossing good money after bad. It’s my job to appropriately counsel you so that does not happen.

There are lots of cases that have to be litigated to be resolved. A (small) percentage of them will even need the wisdom of a jury of our peers to conclude. When a plaintiff makes a settlement demand many times in excess of what it will cost you defend the case, litigation makes sense. When the future of your business hinges on an outcome (such as a key employee’s theft of trade secrets), litigation makes sense. When an employee did something horrifically wrong causing the termination, and you cannot in good judgment pay that employee any amount of money, litigation makes sense.

Litigating on principle, though, is not preferred. When ex-employee accuses you of bigotry by suing you for discrimination, your natural inclination is to roll up your sleeves and fight to defend your name. In many cases, that inclination is wrong. You are running a business, and litigation should be treated as a business decision, not an emotional decision. Emotional decisions cost money, and end up as headlines in your local newspaper.

Steve Strauss, writing at USAToday.com, offers businesses this advice: “Not every dispute is a litigation-worthy dispute. Even in the best of cases, you should think that your odds of winning are 50-50. The judge may say yes, or she may say no. The jury may find in your favor, or not. It's 50-50. Of course some suits are better than others, but you just never know what a judge or jury will do.” He is right when he says when you litigate “you are playing with fire and if you are not careful, you will get burned.” Keep these ideas in mind in your next employment dispute. They will lead to a reasoned business decision, not an emotional one.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Ten tips for effective litigation holds

The purpose of a litigation hold is to stop the destruction of potentially relevant or discoverable documents and information pursuant to a retention policy or otherwise. With the advent of electronic discovery, it is incumbent upon litigants to employ litigation holds as soon as claim or potential claim is reasonably clear. Otherwise, relevant documents might be destroyed, leading to sanctions such as adverse inferences, dismissal of claims, or default judgments. In other words, failing to implement a litigation hold is a quick way focus your case away from the law and the facts and on to discovery issues.

The following is a list of 10 practical tips for implementing a meaningful litigation hold during active or pending litigation:

1. Describe the pending claim.

2. Identify the recipient of the hold letter as someone who may have personal knowledge regarding the matter, or who may be in possession of or have access to information or documents potentially relevant to the matter.

3. Order the suspension of any deletion, overwriting, or any other destruction of electronic information relevant to the matter that is under the recipient’s control. This task will be much more daunting for an IT manager than an individual employee’s work station.

4. Broadly define the scope of covered information to include all documents, records or data of every kind residing or recorded (intentionally or unintentionally) in any medium or location other than within a person’s memory: paper, magnetic tape, photographs, maps, diagrams, applications, databases, microfilm, microfiche, emails, intranet, instant messages, blogs, voicemails, metadata, and any other electronic means of communication that are created, stored or received on the company’s computers or network systems or any other devices (phones, PDAs, applications or storage devices) or systems capable of storing electronic information.

5. Instruct that the recipient search all information for anything relevant or potentially relevant to the claim. Emails and other electronic information should be segregated in a PC or Outlook folder, and all paper documents in a hard file.

6. Hoarding is not a bad thing. Tell recipients to err on the side of over-saving.

7. Designate one company employee as the point person for any questions about the litigation hold and employees’ duties to preserve information and documents.

8. Alert recipients about the to the risk to the company and its employee for failing to heed the litigation hold request.

9. Ensure that the recipient signs a verification signifying the receipt the litigation hold.

10. Periodically recalculate the litigation hold to ensure continuing compliance.

Do you know? Expanded ADA may now cover obesity discrimination

The EEOC has sued a Pennsylvania-based nonprofit, claiming that its termination of a severely obese employee violated the ADA. Traditionally, obesity, in and of itself, is not a protected disability. I've previously discussed this issue. See Is “fat” the new protected class? The ADA, however, not only protected those with actual physical or mental impairments, but also those who are “regarded as” having a physical or mental impairment. Moreover, with the ADA’s recent amendments, one can qualify under the definition of “regarded as” disabled whether or not one’s real or perceived impairment actually limits or is perceived to limit a major life activity.

This story illustrates two important points for businesses:

1. The current iteration of the EEOC is aggressively pursuing judicial expansion of the employment discrimination laws. Grooming and dress policies, criminal background and credit checks, and expansive definitions of disabilities are all on the EEOC’s hit list. HR policies and practices that tread in these dangerous waters risk drowning in a sea of EEOC enforcement actions.

2. The ADA is now so broad that a fired employee may be able to make out a claim of disability discrimination based on obesity. Indeed, I predict that five years from now, businesses will be faced with a wealth of case law recognizing a host of non-traditional disabilities under the ADA. Every physical or mental impairment that a court recognizes as an ADA-protected disability is another impairment for which businesses much provide a reasonable accommodation. I believe, though, the the broader the ADA becomes, the more watered-down its message also becomes. Expanding the ADA to cover non-traditional disabilities undermines the important policy the ADA is meant to further—leveling the employment playing field for those with with real and legitimate substantially limiting impairments.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? More on the lack of privacy in social media

There are not (yet) many cases dealing with the discovery of litigants’ social networking information. Thus, whenever a court addresses the issue, it becomes newsworthy.

Romano v. Steelcase Inc. (N.Y. 9/21/10) [pdf] is a personal injury case. The defendant claimed that information the plaintiff posted on her Facebook and MySpace pages was inconsistent with her claim regarding the nature and extent of her injuries. The court disagreed with the plaintiff’s argument that she had any expectation of privacy what she posted on social networking sites:

Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

It is becoming increasingly more difficult to convince courts that individuals have any privacy expectations in social networking information. Instead, these discovery disputes turn on issues of relevancy—whether the information bears on any issue in the case. In cases involving injuries (whether physical or emotional, and including employment cases), plaintiffs will have a very hard time shielding this type of information from discovery.

[Hat tip: Delaware Employment Law Blog]

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Men are entitled to protection from sexually hostile work environments too

The typical sexual harassment case involves a man harassing a woman. Harassment, however, isn’t limited to just man-on-woman. The umbrella of sexual harassment also includes man-on-man, woman-on-woman, and, as recently discussed by the 9th Circuit, women-on-men. In EEOC v. Prospect Airport Services (9th Cir. 9/3/10) [pdf], the 9th Circuit held that that a female co-worker’s “relentless” pursuit of a male employee—which included six months of constant sexual pressure and humiliation—could form the basis of a sexually hostile work environment. In ruling, the court rejected any stereotypes that man would welcome harassment from a female co-worker:

It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome…. [T]hat is a stereotype…. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons. He might feel that fornication is wrong, and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not….

This case serves as a good reminder to review your harassment policy for completeness. Does it cover all kinds of unlawful harassment? Not just the reverse sexual harassment discussed in Prospect Airport Services, but harassment based on race, national origin, religion, age, disability, military status, genetic information, and (where applicable) sexual orientation? If not, it’s time to call your lawyer, update your policy, and re-train your employees on their non-harassment responsibilities.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Discrimination against Muslims

We are now nine years post-9/11. To say that relations between Americans and Muslim-Americans are poor is an understatement. Our country has been worked into a froth over a proposed Mosque at Ground Zero. It seems that Muslims rank first in the category, “People against whom discrimination and marginalization is culturally acceptable.” Employment discrimination claims brought by Muslims have hit record numbers—higher in 2009 than even in 2002.

Discrimination against Muslims comes in two forms: national origin discrimination and religious discrimination. Both types are not that much different than a race discrimination claim. Failures to hire or promote, terminations, other unlawful employment actions, or harassment because of on one’s national origin or religion all constitute unlawful discrimination. For example, take the recent pair of cases filed by the EEOC against meatpacker JBS Swift, in which Muslim employees alleged that  blood and bones were hurled at them, bathroom walls were covered with vile graffiti and company supervisors fired many Islamic employees.

Religious discrimination, however, presents its own unique set of issues, because employers have an affirmative obligation to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. Two recent stories illustrate the problems that these claims present for employers. Muslim employees continue to sue retailer Abercrombie & Fitch, challenging its “Look Policy” that prevents those who wear hijabs (religious head scarves) from being hired. Then, there is the Disneyland case, in which a Muslim employee, working as a hostess at a restaurant, protesting the theme park’s insistence that her costume cover her hijab so that she meets the “The Disney Look”—a 17-page document [pdf] outlining dress and grooming guidelines for all Cast Members to maintain uniformity and the suspension of disbelief, which has been used since Disneyland opened in 1955.

We all know that discrimination of all kinds is wrong. But, Muslim-Americans are practicing politics of exclusion in a time that calls for the opposite so that we, as a nation, can heal. The issue isn’t one of rights. Of course, one has a right to build a Mosque where one wants (and the law cannot stop the Ground Zero Mosque from being built). One should have the right to pray at work (as long as it doesn’t interfere with job performance or otherwise disrupt the workplace). One should have the right to wear religious garments in the workplace (although Abercrombie and Disney have the right to protect and project the public image that forms the foundation of their companies). Yet, as long as people insist on building a Mosque at Ground Zero, others will feel it’s okay to hurl meat and epithets.

There are no easy answers to these ugly problems. But, it’s not enough simply to say that employers have to cease discrimination. For the healing to begin, and for the discrimination to stop, there also has to be a showing of willingness, participation, and inclusion from the other side of the argument.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? FMLA medical certifications: if you don't ask, then you can't deny

In Branham v. Gannett Satellite Information (9/2/10) [pdf], the Sixth Circuit faced the issue of whether a negative medical certification (that is, one that says an employee is not limited in performing the essential functions of the job) bars FMLA leave if the employee presents an opposite certification during the same certification period. Under the FMLA's regulations, an employer must give an employee 15 days to prevent a medical certification for an unforeseeable leave. During that 15 day period, Deborah Branham presented Gannett an initial form from her doctor which stated that she could perform the essential functions of her job, and a second form which stated that she could not. While the latter would have qualified her for FMLA leave, Gannett took the position that the initial negative certification disposed of the issue for the entire leave, and it could ignore the second certification. The Sixth Circuit skirted this interesting issue, but in the process made an important point about employers' obligations in following the rules and asking for medical certifications.

The rules on medical certifications under the FMLA are fairly straight-forward. After an employee asks for FMLA leave, an employer may require that the employee support the request with a certification issued by the employee's health care provider. This request by the employer must be in writing and must detail the employee’s specific obligation to provide the certification and the consequences of failing to do so (such as the denial of leave). The request may be oral only if (1) the employee handbook or other written FMLA policy clearly provided that medical certification would be required, and (2) the employee sought FMLA leave some time in the previous six months and received written notice of the medical-certification requirement at that time. If an employer uses the FMLA forms drafted by the DOL, the written notice will take care of itself in most instances. Based on these rules, the court denied concluded that Gannett's denial of Branham's leave request violated the FMLA.

Branham satisfied her notification requirement on November 13, 2006, when she asked Buhler “about taking leave, because [she] still wasn’t feeling well and had numerous doctors’ appointments scheduled for November and December.” But Gannett never properly triggered the additional duty to provide a medical certification supporting her claim. The district court found that Gannett requested certification on November 13, the day on which Buhler told Branham over the phone to come to the office and sign a short-term-disability form to “see if she qualified for anything.” In her deposition, however, Buhler testified that “Michele and I never at any time discussed FMLA leave.” It is true that Gannett’s short-term-disability form doubled as its FMLA leave form, but it is clear that Buhler communicated to Branham no information about the FMLA certification requirement, the fact that such certification was due within fifteen days, or the consequences of failing to return an adequate certification.... We therefore must conclude that Gannett was not entitled to delay or deny leave to Branham on the basis of the certification requirement. 

In this case, Gannett's biggest mistake was using its own form (the short term disability form) for FMLA purposes. It should have used the DOL's suggested forms. Part B of form WH-381, entitled "Notice of Eligibility and Rights & Responsibilities" [pdf], states:

As explained in Part A, you meet the eligibility requirements for taking FMLA leave and still have FMLA leave available in the applicable 12-month period. However, in order for us to determine whether your absence qualifies as FMLA leave, you must return the following information to us by _________________. (If a certification is requested, employers must allow at least 15 calendar days from receipt of this notice; additional time may be required in some circumstances.) If sufficient information is not provided in a timely manner, your leave may be denied.

The form then has this check-box: "Sufficient certification to support your request for FMLA leave. A certification form that sets forth the information necessary to support your request ____is/____ is not enclosed." All an employer needs to do to satisfy its requirement to ask for the certification in writing is use this form, fill in the date by which certification must be returned, check the box asking for the certification, and provide a copy of form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition [pdf]. The rules are not complicated, but, as Branham v. Gannett Satellite Information illustrates, the penalties for not following them are punitive.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Challenging non-competition agreements

While my practice is heavily slanted towards the representation of management in employment disputes, from time to time I represent employees. Usually, it’s in an advisory role with non-compete agreements, when someone leaves one position for another.

Employees faced with a non-compete when leaving a job to work for a competitor or quasi-competitor have three choices:

1. Approach the old employer—either as part of severance negotiations or otherwise—and attempt to negotiate or buy your way out of the non-compete.
2. Work for the competitor and wait to get sued.
3. Preemptively sue your old employer seeking a declaration that the non-compete is invalid.

In all likelihood, if you ignore option number 1, or negotiations fail, you, and maybe your new employer, will get sued. The latter option, though, has some great upside for employees with specious non-competes. It lets you control the timing and venue of the lawsuit. It also lets you play offense instead of defense in trying to void or modify an overly broad agreement. For a good example of where this strategy worked well, see Jacono v. Invacare Corp. The downside, of course, is the expense. Something to consider if you are faced with a new job and a non-compete of dubious enforceability.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Handbook disclaimers

Yesterday, I noted that employees often feign ignorance of employee handbooks. Here’s a textbook example.

In Steadman v. Sterilite Corp. (Ohio Ct. App. 7/19/10) [pdf], the employer’s handbook contained the following language:

Sterilite is an “at will” employer in that your employment may be terminated with or without cause and with or without notice at any time at the option of either you or Sterilite, except as otherwise provided by law…. No statement or promise by a supervisor, manager or department head, either verbal or written, may be interpreted as a change in policy nor will it constitute an employment agreement with any employee.

Additionally, the employee signed the following acknowledgement form upon receipt of the handbook:

I understand that this handbook is not a contract of employment, express or implied, between Sterilite and me and that I should not view it as such, or a
guarantee of employment for any specific duration. 

I further understand that no manager or representative of Sterilite, other than the president, has the authority to enter into any agreement guaranteeing employment for any specific period of time. I also understand that any such agreement, if made, shall not be valid or enforceable unless it is in a formal written agreement signed by both the president and me.

Based on this language, the Court affirmed the dismissal of the employee’s claims, which were premised on the handbook constituting a contact of employment:

As a general rule in Ohio, employee handbooks do not constitute an employment contract. The handbook is simply a unilateral statement of rules and policies creating no obligations or rights…. [A]n employee handbook that expressly disclaimed any employment contract could not be characterized as an employment contract.

Reviews of disclaimers should be part of any handbook audit. They will likely make the difference between whether your handbook is a series of aphoristic aspirations and guidelines, or a policy manual that binds your conduct as a contract between your business and your employees.

Do you know? What triggers the duty of reasonable accommodation?

Suppose an employee suffers from sleep apnea, which keeps the employee awake for periods of time at night. In fact, the employee’s nighttime sleep patterns are interrupted to the point that the employee is excessively tired during the work day.

Two weeks after being hired as a manager, the employee falls asleep during a meeting. When questioned, he mentions that he has sleep apnea, but blames the nap on the warmness of his room coupled with his jacket and tie. The employee would repeat his workplace naps numerous times over the next year, and when questioned he would merely state that he had a rough night. He never asked for an accommodation of his sleep apnea, nor indicated that sleep apnea was
interfering with his job. This pattern continued for 18 months.

Finally, the employee’s supervisor catches him sleeping at his desk in the middle of the work day. When it took her more than five minutes to roust him, she told him that he could resign his employment or be terminated. The employee claims that he said that he had sleep apnea which causes him to involuntarily fall asleep, although he never requested any type of accommodation. In his resignation letter, he stated that he was disappointed that his employer was unable to accommodate his medical condition.

These are the facts of Medlin v. Springfield Metro. Hous. Auth. (Ohio App. 8/6/10) [pdf], a case in which Medlin sued for constructive discharge for a failure to reasonably accommodate his sleep apnea. The court of appeals upheld the dismissal of his claim because he failed to request an accommodation for his disability:

Federal courts have recognized that the duty of an employer to make a reasonable accommodation also mandates that the employer interact with an employee in a good faith effort to seek a reasonable accommodation…. To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

As noted, Medlin never asked for reasonable accommodations to accommodate sleeping on the job before being given the option to resign or be terminated. At that time, Medlin did not even suggest what a reasonable accommodation might be; he simply stated in his resignation letter that he was disappointed that SMHA was unable to accommodate his medical condition. SMHA was entitled, however, to terminate Medlin’s employment the day before, when he was found asleep in violation of company rules. There is no showing that SMHA failed to act in good faith by giving Medlin the option the following day to resign or be fired for sleeping on the job, particularly when Medlin had never asked for an accommodation. This is not a situation in which an employee was ignorant of his condition. Medlin was aware for many years that he had sleep apnea, and had ample opportunity to bring the issue of accommodation to his employer’s attention. Medlin was twice questioned about sleeping on the job, and was specifically informed that he had been observed sleeping by other employees and by board commissioners. Nonetheless, Medlin failed to ask for a reasonable accommodation for his condition.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? 10 tips for preparing for your deposition

I’ve been taking and defending more depositions than usual lately, and, naturally, I’ve been thinking a lot about the art of the deposition. Because very few cases get to trial, the deposition is the event during which the key players have their opportunity to tell their stories. It is also often the key event in employment cases that decides whether a summary judgment motion is granted or whether a case results in a fair settlement.

A deposition may feel like a conversation, but it isn’t. It is a tool used by a highly skilled practitioner to lock-in your side of the story, build his or her case through your admissions, and evaluate you a trial witness. As there is a skill in taking a deposition, there is also a skill in testifying at a deposition. The following are my top 10 things to think about as you prepare to give testimony in a deposition.

1. Tell the truth. Enough said.
   
2. Answer the specific question asked. Do not volunteer other information. Do not explain your thought process. You are only required to answer the question that is asked. The lawyer on the other side is being paid to ask specific questions to elicit the specific information being sought. Do not do his job for him by unnecessarily offering other information.
   
3. If you do not understand a question, do not answer. Simply say that you do not understand. It is the lawyer’s job to formulate understandable questions, and not your job to guess at what is trying to be asked of you.
   
4. Do not guess. If you cannot remember something, your answer should simply be: “I do not remember.” If you have a vague memory, give that vague memory with a qualification.
   
5. A deposition isn’t a memory test. If you are asked for a time or date, and you cannot recall specifics, it is okay to give an approximation. Just qualify the answer by saying that it is an approximation or an estimate.
   
6. Beware leading questions. An examiner is usually allowed to try to put words in your mouth with leading questions. Do not agree to inaccurate statements contained within the question. To same end, do not automatically accept the questioner’s summary of your prior testimony, unless it is 100% accurate.
   
7. Give complete answers, and then stop. Always finish your answer. If you are interrupted, let the lawyer finish the next question, and then go back and finish your prior answer. If you are finished with an answer and it is complete, accurate, and truthful, stop talking and stay silent. Do not add to your answer because you feel a need to fill the silence.
   
8. Documents. If you think you need a document to help you truthfully and accurately answer a question, ask for it. But, do not agree to supply any documents requested by the questioner. All such requests should go through your lawyer.
   
9. Objections. Even if your lawyer objects, you usually still have to answer the question. You will only not answer if your lawyer expressly instruct you accordingly (usually because the other lawyer is asking about attorney-client communications).
   
10. Humor doesn’t work. Sarcasm and humor do not translate well on the written page. Also, never express anger or argue with the questioner, or use even the mildest of off-color language. A deposition is a professional event, and you should act professionally.
    

I’ve never seen a perfect witness. A good witness will get more than half of these right in answering more than half of the questions asked. See if you can beat that batting average at your next deposition.

Do you know? Content of FMLA medical certifications

So often we get bogged down in the minutia of an employment law issue or a specific case. I thought that today, we’d take a step back and focus on something really basic—the mechanics of FMLA medical certifications.

When an employee take an FMLA leave for his or her own serious health condition, or that of a family member, an employer may require that the employee obtain a medical certification from a health care provider to certify that the medical condition qualified under the FMLA. The certification may seek the following information:

1. The name, address, telephone number, and fax number of the health care provider and type of medical practice/specialization.

2. The approximate date on which the serious health condition began, and its probable duration.

3. A statement or description of medical facts regarding the patient’s health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment.

4. If the employee is the patient, information to establish that the employee cannot perform the essential functions of the job, the nature of any other work restrictions, and the likely duration of such inability.

5. If the patient is a covered family member with a serious health condition, information to establish that the family member is in need of care, and an estimate of the frequency and duration of the leave required to care for the family member.

6. If an employee requests leave on an intermittent or reduced schedule basis for planned medical treatment of the employee’s or a covered family member’s serious health condition, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the dates and duration of such treatments and any periods of recovery

7. If an employee requests leave on an intermittent or reduced schedule basis for the employee’s serious health condition, including pregnancy, that may result in unforeseeable episodes of incapacity, information to establish the medical necessity for such intermittent or reduced schedule leave and an estimate of the frequency and duration of the episodes of incapacity

8. If an employee requests leave on an intermittent or reduced schedule basis to care for a covered family member with a serious health condition, a statement that such leave is medically necessary to care for the family member, which can include assisting in the family member’s recovery, and an estimate of the frequency and duration of the required leave.

The Department of Labor has published two forms for employers to use for a health care provider to certify the need for FMLA leave: WH-380-E (for an employee’s own serious health condition), and WH-380-F (for a family member’s serious health condition). While these forms are optional, the DOL approves their use, they are available for free, they cover all of the permitted information, and leave no room for over-reaching. In other words, if you’re not using these forms, you should be.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.