Deconstructing race, ethnicity, and national origin

Even though this blog is called the Ohio Employer's Law Blog, I often write about issues that come up outside of Ohio because I think they will be of interest to Ohio businesses. Abdullahi v. Prada, decided recently by the 7th Circuit, is one such issue. It discusses the similarities and differences between race, nationality, and ethnicity, how they are often intertwined in employment discrimination issues, and the linguistic tightrope we often walk in trying to distinguish among them.

Race, nationality, and ethnicity are sometimes correlated, but they are not synonyms. A racial group as the term is generally used in the United States today is a group having a common ancestry and distinct physical traits. The largest groups are whites, blacks, and East Asians. Iran is a country, not a race, and an "Iranian" is simply a native of Iran. Iranians and other Central Asians are generally regarded as "white," whatever their actual skin color; many Indians, for example, are dark. Some Central Asians are indistinguishable in appearance from Europeans, or from Americans whose ancestors came from Europe, while others (besides Indians), for example Saudi Arabians, would rarely be mistaken for Europeans. Some Iranians, especially if they speak English with an Iranian accent, might, though not dark-skinned, strike some Americans as sufficiently different looking and sounding from the average American of European ancestry to provoke the kind of hostility associated with racism. Yet hostility to an Iranian might instead be based on the fact that Iran is regarded as an enemy of the United States, though most immigrants to the United States from Iran are not friends of the current regime.

Because of the intrinsic similarities between these three concepts, the plaintiff was not precluded from suing her employer for "race" discrimination, even though in her administrative charge she had only checked the boxes for "national origin" and "religion".

[Hat tip: Workplace Prof Blog]

Butt painter settles wrongful discharge lawsuit

In the update that I know everyone's been waiting for, Stephen Murmer, the Virginia high school art teacher terminated after school officials learned he moonlighted by creating paintings using his bare buttocks as a brush, has settled his wrongful discharge lawsuit on the eve of trial. [See Butt painter's lawsuit to go to trial].

You may be asking yourself, what was his claim worth? $65,000. Unreal. We can all sleep easier knowing justice has been served.

[Hat tip: Lowering the Bar]

Employment lessons from The Office

NBC's The Office should be required viewing for any HR professional or employment lawyer. In honor of its return tomorrow night, US News & World Report brings us 7 Career Lessons From The Office. I'll share with everyone #2 - "Boss" shouldn't be confused with "friend":

When Michael said he wants his employees to think of him as "a friend first and a boss second, and probably an entertainer third," these were not the musings of a great manager. It sounds nice but it doesn't work -- try firing a friend or telling your friends that you've slashed their employment benefits. Yes, Michael has had a few heart-to-hearts that may have temporarily helped his employees, but it's unlikely to have increased their performance or their loyalty to the company.

So there are no doubts, I bring you the original boss of The Office, David Brent, and his philosophy on management:

Indiana Supreme Court permits expert testimony on "workplace bullying"

In what could be considered the first major judicial opinion on workplace bullying, the Indiana Supreme Court, in Raess v. Doescher, permits an expert witness to opine on "workplace bullying."

Joseph Doescher, a hospital operating room perfusionist (the person who operates the heart/lung machine during open heart surgeries), sued Dr. Daniel Raess, a cardiovascular surgeon, for an alleged assault in the operating room. The testimony at trial was that Dr. Raess was angry at Doescher about reports to the hospital administration over the doctor's treatment of other perfusionists. Dr. Raess aggressively and rapidly came at Doescher "with clenched fists, piercing eyes, beet-red face, popping veins, and screaming and swearing at him." Doescher backed up against a wall to defend himself, believing that Dr. Raess "was going to smack the s**t out of" him. Dr. Raess then suddenly stopped, turned, and stormed out of room yelling to Doescher, "you're finished, you're history." For this conduct, a jury awarded Doescher $325,000.

Among the testimony that the jury heard what that of Doescher's expert witness, Dr. Gary Namie, one of the co-founders of the Workplace Bullying Institute. The Workplace Bullying Institute is the organization that is on the forefront of trying to get anti-bullying legislation passed. Dr. Namie testified as to the nature of Dr. Raess's behavior:

In my opinion it's an episode of workplace bullying.... I concluded that based on what I heard and what I read that [the defendant] is a workplace abuser, a person who subjected [the plaintiff] to an abusive work environment. It was a horrific day, it was [a] particularly aggregous [sic], outrageous ... episode.

The Indiana Supreme Court found no error in the trial court's ruling that allowed Dr. Namie's "expert" testimony. According to the court, the term "workplace bullying" can be used because the phrase is "like other general terms used to characterize a person's behavior...." It also found that the trial court did not err in refusing to instruct the jury that workplace bullying, in and of itself, is not illegal.

It should be frightening to any business owner that a court has legitimized Dr. Namie's theory of workplace bullying as some great societal wrong that needs to be fixed. My fear is that this opinion will embolden the workplace bullying movement, a movement that readers of this blog know I feel should die a quick death.

New Jersey to adopt paid sick leave - is Ohio next?

While the Ohio Healthy Families Act stalls in the legislature, and Sick Days Ohio, the group lobbying for this bill, gathers signatures to place in on November's ballot, New Jersey will join California and Washington to become the 3rd state (plus the District of Columbia and San Francisco) to require paid sick leave for employees. The New Jersey plan, however, differs from Ohio's Healthy Families Act in three key regards:

1. New Jersey's employees will partially fund their own paid leave through a payroll deduction. According to today's Philadelphia Inquirer, each worker will pay about $33 per year, while each is entitled to collect up to two-thirds of their salary, capped at $524 per week.
2. Employers will be able to require their employees to use accrued vacation days and other paid time off before using their allotment of statutory paid sick leave.
3. Businesses with fewer than 50 employees would not be required to keep jobs open to workers who take the leave.

These differences are a step in the right direction of protecting the interests of small business owners. A payroll deduction and benefit cap will alleviate some of the concerns over cost, although I doubt that $33 per year per employee will be enough to fully cover all employees. Requiring employees to use other paid leave before the statutory leave will prevent potential abuses by employees. Finally, not guaranteeing continued employment for employees of small businesses will allow those businesses to meet their staffing needs without fear of a retaliation lawsuit.

The OHFA has other deficiencies that still need to be addressed, particularly its anti-retaliation provision: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." "Negative factor" is much too forgiving of a standard, and likely will hamstring employers from taking action against any employee who is out for even a day with an illness.

The Ohio legislature should consider the OHFA, if only to keep it from appearing on the November ballot in its current form. Such debate should include consideration of these provisions from the New Jersey law, each of which addresses an important concern to Ohio's small business owners.

Court reminds us that harassment must be because of a protected class to be actionable

Williams v. Spitzer Auto World, Inc., decided this week by the Lorain County, Ohio, Court of Appeals, is a great illustration of the dangers the will befall corporate America if workplace bullying legislation becomes the law.

Michael Williams, an African-American, quit his job at Spitzer (it's been a busy couple of weeks for Spitzer) and alleged, among other things, racial discrimination, racial harassment, and constructive discharge. The jury found in favor of Spitzer on the harassment claim, but nevertheless awarded Williams damages on his constructive discharge claim. A constructive discharge is where "the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign." The intolerable working conditions, however, must be tied to some unlawful conduct by the employer for an employee to claim a constructive discharge. Because Williams had not proved his harassment claim, the appellate court ruled that his constructive discharge claim must therefore also fail.

This case is a perfect illustration of what's wrong with the anti-bullying movement. If groups like the Workplace Bullying Institute get their way and generalized workplace bullying becomes illegal, every employee who quits a job because of an alleged abusive boss will have a colorable constructive discharge claim. The violation of the anti-bullying law would provide the unlawful conduct necessary to support the constructive discharge claim. It is for this very reason that anti-bullying legislation would spell the end of employment at-will, as every employee who resigns because they don't like their boss would be able to claim a constructive discharge.

10 reasons why I love my job

The National Law Journal has published its 15th annual list of bizarre employment law cases. My favorite is actually number 10: "Maternity Wear, Pregnancy Suit":

Philadelphia-based maternity clothes retailer Mothers Work Inc. agreed to pay $375,000 to settle a suit alleging that it refused to hire qualified female applicants because they were pregnant. LaShonda Burns alleged the company would not hire applicants for sales positions who were "visibly pregnant" or who it learned were pregnant through interviews. Company president Rebecca Matthias denied any discrimination, but said the settlement was reached to avoid "huge" costs and "distractions" of protracted litigation. She added, "It's important to make sure our culture and policy are lived at every one of our stores."

What's next, the NAACP being sued for race discrimination?

What else I'm reading this week #25

It's a constant struggle to decide which is the hotter topic in employment law -- wage and hour lawsuits or retaliation claims. I've been focusing a lot of attention lately to the latter, so let's start this week's review with a pair of articles on the former. BLR's Daily HR Advisor asks the question, FLSA Class Action Overtime Suits—Are You Next? To help answer that question, Law.com gives everyone a lesson in Overtime 101. Workplace Horizons provides a timely update on an attempt to revitalize new regulations for SSA No-Match letters. For an explanation of what these new rules would mean, see New rules require termination of illegal immigrants

Mark Toth at the Manpower Employment Blawg asks if obesity discrimination is more prevalent than even race discrimination. I gave my thoughts on this issue last June: Supersized lawsuits - obesity-related claims expected to rise

The Workplace Prof Blog gives an academic perspective on a case in which Wal-Mart fired a manager for engaging in an improper affair with a coworker after it hired an investigator to follow the couple down to Central America to catch them in the act.

Monster.com's HR Guru gives some pointers on dealing with workplace violence.

Finally, my friend Donna Seale at Human Rights in the Workplace gives us a Canadian perspective on employers' responsibility for harassment by non-employees.

Failure to hire "because of litigation" may constitute retaliation

Another day, another retaliation case out of the 6th Circuit. In Cline v. BWXT Y-12, LLC, the company declined to hire Cline, a former employee, for an open position because the company was "in litigation with Mr. Cline and that he may not be the best person ... because of the litigation factor." That litigation involved a claim of age discrimination. The decision makers testified that while they knew of the litigation, they did not know that it involved allegations of age discrimination. The district court threw out the retaliation claim on summary judgment, finding that because the decision makers did not have "any knowledge of the substance of Cline's present suit," they could not have known that he had engaged in protected activity.

The appellate court disagreed, and found that because the decision makers "knew that Cline was involved in litigation with the company ... the evidence permits the inference that the decision makers were unwilling to hire someone in litigation with the company." That inference "creates a triable issue of fact over whether the decision makers knew of Cline's protected activity."

"Wait a second," you might say, "There can be all kinds of litigation Cline could have been involved in. Just because he sued the company doesn't mean that he was engaged in statutorily protected activity. And, even if he was, can't a company have a neutral policy against hiring anyone who has sued the company, regardless of the cause." The Court hears your protests:

Something more is required, the company says, because Cline’s evidence still does not show that the decision makers knew that the litigation involved an age-discrimination claim.... In one sense the company has a point. Cline’s evidence permits the inference that Mack and Zava would not hire someone—anyone—“in litigation” with the company, and that view might suggest unbiased neutrality. It thus might have made no difference to Mack and Zava whether the litigation involved age discrimination if they preferred not to hire anyone in litigation with the company without regard to the subject matter of the lawsuit—whether it was a tort action, a contract dispute or a civil rights complaint. But such an across-the-board explanation—that any litigation with the company precludes any individual from being hired (or for that matter being retained as a current employee)—would necessarily sweep up protected civil rights claims and non-protected claims. And if such an explanation suffices for one hiring decision, why couldn’t an employer adopt a company-wide policy against hiring or retaining anyone in litigation with the company? As long as the policy were consistently followed, the employer would rarely have reason to obtain knowledge about the substance of the litigation, and at any rate it could always fairly say that it was the ruthlessly neutral policy, not the protected activity, that caused the adverse action.

Thus, to prove his retaliation claim, Cline will have to prove two facts:

1. That the company knew about the content of his claim; and
2. That the company did not have a policy against hiring (or retaining) individuals with litigation against the company.

This case poses the age-old question, "What does 'because of' mean in an employment lawsuit?" The answer, as with most things, is, "It depends." Cline presents a rational and common sense understanding that not all employment decisions that look retaliatory are retaliatory. I would never counsel someone to provide "engaged in litigation" as a reason for termination, because of the negative inferences that one can draw. But, if the decision maker does not know of the reason for the litigation, and the company can prove that it has a policy (written or unwritten) against hiring (or for firing) anyone who is in litigation against it, then the company genuinely has not engaged in retaliation.

Wal-Mart relents on reimbursement of medical costs

Last week I reported on Wal-Mart's lawsuit against a brain damaged ex-employee for the reimbursement of her health care costs. As of this morning, Wal-Mart has relented and will not pursue the collection of its costs. CNN.com quotes the letter Wal-Mart sent to the family: "We wanted you to know that Wal-Mart will not seek any reimbursement for the money already spent on Ms. Shank's care, and we will work with you to ensure the remaining amounts in the trust can be used for her ongoing care." Wal-Mart will also be modifying its health care plan to allow "more discretion" in individual cases.

Companies make decisions for any number of reasons. There are legal reasons (which guided Wal-Mart's original decision), business reasons, public relations reasons, moral reasons, and sometimes no reason at all. Just because something is permitted by law, however, does not mean that there are not better justifications not to take that action. In making any decision, employment related or otherwise, companies would be wise not to just consider whether a course of action is legal, but also what effect that action will have on its business, its relationship with its employees, and its public persona. Only thoughtful consideration of all of these factors will allow for fully informed corporate decision making.

Ohio court finds no public policy for opposing corporate accounting irregularities

One would think that in our post-Enron corporate environment, employees, even in non-public companies, would be free to oppose corporate accounting irregularities without fear of termination. Yet, in Schwenke v. Wayne-Dalton Corp., the Lorain County (Ohio) Court of Appeals ruled that an employee claiming he was terminated for that very reason had no claim.

Ronald Schwenke was the controller for Wayne-Dalton Corp., a privately held manufacturer of garage doors headquartered in Mt. Hope, Ohio. During Schwenke's employment he complained about certain inappropriate accounting procedures engaged in by Wayne-Dalton's President and its CFO, in addition to what he perceived as the misappropriation of corporate assets. His complaints fells on deaf ears, and he was simply told to "make it work," perform his duties as controller, and not question how the business was operated. When he refused to "make it work" he was fired. Schwenke claimed that his termination was in retaliation for his complaints, and that it violated Ohio's public policy against firing employees in retaliation for reporting inappropriate accounting procedures or misappropriation of corporate assets.

Schwenke did not claim protection under Ohio's whistleblower statute because he failed to follow the statute's very specific reporting requirements that one must follow to qualify as a protected whistleblower. Instead, he claimed there is "a public policy in support of not firing an employee, such as appellee, in retaliation for reporting inappropriate accounting procedures or misappropriation of corporate assets." The court of appeals disagreed:

[W]e find that appellee has failed to identify any source of public policy as the basis for his claims. Appellee ... did not identify any constitution, statute or regulation that might provide a basis for his claims. Nor did appellee cite or present the trial court with any legal authority in support of his argument that his termination violated public policy.

In other words, Schwenke lost not because a public policy does not exist, but because he failed to articulate one. I wonder if the result would have been different if Schwenke simply articulated the Sarbanes-Oxley Act, which establishes accountability standards for publicly traded companies, as the public policy supporting his claim.

The concurring opinion, however, goes further, and suggests that there is no public policy sufficient for protection:

Appellee has failed to identify any source of public policy as the basis for his claims. I believe Appellee's best argument is the fiduciary duty which exists between a corporation and its directors and its shareholders warrants recognition as a public policy exception to the at-will employment doctrine. I know of no case law, nor has Appellee identified any, which has recognized the breach of that fiduciary duty rises to the level of a matter of public policy. The fact no such case law exists does not preclude this Court from recognizing, and thereby creating, new common law. While the facts of this case suggest doing so may be equitable, I join my colleagues in refusing to do so....

While I agree the corporate management practices found to exist by the jury in this case demonstrate a breach of the fiduciary duty to the corporation's shareholders ... I do not feel such rises to the level of a great societal wrong. This case brought to mind the Enron scandal. Unlike Enron, no corporate officer or board of directors' member of Wayne-Dalton has been alleged, much less shown, to have committed a criminal offense. Unlike Enron, Wayne-Dalton is not involved in the supply of public utilities. Unlike Enron, Wayne-Dalton's corporate management practices cannot be said to have any impact on the general public health and safety. Wayne-Dalton "wrongs" as found by the jury are not "societal" in nature.

The Enron analogy is fallacious. Enron was a publicly traded company. If Wayne-Dalton was a public company, Schwenke could have had a statutory whistleblower claim under Sarbanes-Oxley. The existence of that statutory remedy, however, would most likely nullify his public policy wrongful discharge claim, under the holding of Leininger v. Pioneer National Latex.

Nevertheless, the Schwenke case sends the wrong message to Ohio's privately held companies -- that they can terminate corporate watchdogs without fear of retaliation liability. Employees have to be free to oppose corporate accounting irregularities, even in non-public companies. Sarbanes-Oxley should provide a sufficient public policy to support these claims against non-public companies. I hope it does in the next case of this ilk.

Carnival of HR 30 is available

Please take a minute to surf over to Fortify Your Oasis and read this week's compilation of the blogosphere's best HR and employment relations posts.

6th Circuit recognizes claim for associational retaliation

The 6th Circuit continues to broaden the scope of retaliation claims, and in the process make it more and more difficult for employers in Ohio, Michigan, Kentucky, and Tennessee to manage against these claims. In Hawkins v. Anheuser-Busch, the 6th Circuit recognized a claim against an employer for retaliatory acts committed not by a manager or supervisor, but by a co-worker. Yesterday, the Court continued its expansion of retaliation liability and recognized liability for "associational retaliation."
Section 704(a) of Title VII of the Civil Rights Act of 1964 prevents retaliation by employers for two types of activity, opposition and participation:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

On its face, it seems clear that the anti-retaliation provision is limited to an employee who himself or herself opposes an unlawful employment practice, made a charge, or participated in a investigation, proceeding or hearing regarding a charge. Yet, in Thompson v. North American Stainless, decided this week by the 6th Circuit, the Court has held that the same anti-retaliation provision also protects a related or associated third party from retaliation.
Eric Thompson was engaged to Miriam Regalado, another North American Stainless employee. Three weeks after Regalado filed a sex discrimination charge with the EEOC, North American Stainless terminated Thompson for alleged performance reasons. The 6th Circuit reversed the trial court's dismissal of the retaliation claim, holding:

Title VII prohibit[s] employers from taking retaliatory action against employees not directly involved in protected activity, but who are so closely related to or associated with those who are directly involved, that it is clear that the protected activity motivated the employer's action. (emphasis added).

The Court found that even though the plain language of the statute would prohibit such a claim, not allowing the claim would frustrate the statute's purpose -- prohibiting conduct that would dissuade reasonable workers from engaging in protected activity. The Court also defended itself from possible criticism that it was taking too broad a reading of the statute and opening the door to a flood of claims:

Other courts have expressed concerns as to whether this decision will result in a flood of suits from relatives and associates of those who file EEOC charges.... The requirement of a prima facie case in general, and a causal link specifically protect employers from defending against meritless suits. Of greater concern to the court would be the result of a contrary ruling. That is, permitting employers to retaliate with impunity for opposition to unlawful practices, filing EEOC charges or otherwise participating in such efforts, as long as that retaliation is only directed at family members and friends, and not the individual conducting the protected activity.

In becoming the first circuit court to recognize a claim for associational retaliation, the court rewrote Title VII's anti-retaliation for public policy reasons. As the dissent further explained:

It was Congress’s prerogative to create – or refrain from creating – a federal cause of action for civil rights retaliation. Congress likewise was entitled to mold the scope of such legislation, making the boundaries of coverage either expansive or limited in nature. In enacting § 704(a), Congress chose the latter. The text of § 704(a) is plain and unambiguous in its protection of a limited class of persons who are afforded the right to sue for retaliation. To be included in this class, the plaintiff must show that his employer discriminated against him "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (emphasis added).
By application of the plain language of the statute, plaintiff Eric L. Thompson is clearly not included in the class of persons for whom Congress created a retaliation cause of action because Thompson, himself, did not oppose an unlawful employment practice, or make a charge, testify, assist, or participate in an investigation....
In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. The majority has accepted this dubious invitation. In doing so, the majority rewrites the law.

Separate and apart from whether one agrees or disagrees with the Court's judicial activism, its holding creates genuine logistical problems for employers. If Title VII protects those "who are so closely related to or associated" with employees who engage in protected activity, it simply begs the question, how close is close enough? In Thompson, the relationship was a fiancee. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation?
The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?
These questions, none of which the Thompson court answers, could hamstring employers from making any employment decisions for fear of doing something against someone who has some relationship to someone else who complained about something last October. The implications of this case have the potential to reach that level of silliness. The best course of action is still to make legitimate personnel decisions for bona fide business reasons and let the chips fall where they may. Fear of being sued will freeze your workforce, and bad employees will continue to get a free pass and remain employed. No company wants to get sued, but sometimes you have to take that risk to rid yourself of a bad worker. The Thompson case just makes it that much more likely that if you take action against an employee, you may have to defend that decision in court.

Repeat after me: "I will not pull a cheesy April Fools' Day prank."

I thought I'd share with everyone Mark Toth's (from the Manpower Employment Blawg) excellent thoughts on how not to get sued on April Fools' Day:

Done right, workplace humor can be a great thing for employee morale. Done wrong, it can be a disaster.

The idea is not to prohibit all workplace fun, jokes and pranks but rather to (1) help employees know where the line is and (2) take appropriate action if the line is crossed.

Here's a simple solution: consider adopting a policy prohibiting "potentially unwelcome, offensive or harmful workplace jokes or pranks." Enforcing such a policy should be fairly straightforward. Pranks that involve any of the following should never be allowed:

• race, gender or other protected or physical characteristic
• threats
• physical contact, including ingestion of unwelcome odors or substances
• weapons (even toy ones) or other potentially dangerous objects/substances
• damage to property or a person's reputation
• interference with a person's ability to do his/her job

If a joke/prank crosses the line, strongly consider taking disciplinary action.

Consider this -- what about a prank that involves putting a co-worker's stapler in jello?

Some alternatives to arbitration of employment claims

Last week, the U.S. Supreme Court decided Hall Street v. Mattel, which held that the Federal Arbitration Act is the exclusive grounds for vacating or modifying an arbitration award, and that parties may not contractually agree to expanded grounds of judicial review. Briefly, the parties had entered into an agreement in which they agreed to the de novo review of the arbitration decision of their environmental dispute. The Supreme Court held that such provision was not valid under the FAA. Thus, a court can only overturn an arbitrator's decision are where: (1) the award was procured by corruption, fraud, or undue means; (2) there was evident partiality and/or corruption; (3) the arbitrators were guilty of other misconduct; or (4) the arbitrators exceeded their powers.

While arbitration continues to the favored method used by employers to limit their potential exposure in front of a jury, let me discuss two other possible alternatives.

Contractual Waivers of Jury Trials

First, employers can have employees sign agreements waiving the right to ask for a jury in any subsequent legal disputes. More than 20 years ago, in K.M.C. Co. v. Irving Trust Co., the 6th Circuit stated: "It is clear that the parties to a contract may by prior written agreement waive the right to jury trial.... [T]he constitutional right to jury trial may only be waived if done knowingly, voluntarily and intentionally." The contract should clearly and unambiguously advise the employee that by signing the agreement the employee is giving up any and all rights to have any claims related to his or her employment raised by a jury. The more broadly the waiver is drafted, the more likely it will cover an employment-related claim, provided it is otherwise knowing and voluntary.

In light of Hall Street v. Mattel, jury trial waivers have one key advantage over more traditional arbitration agreements -- you are not giving up any appeal rights, and an appellate court's review of a bench trial will be much wider than a court's review of an arbitration award. Of course, this factor cuts both ways. At the same time, though, a bench trial eliminates the risk of a runaway jury awarding obscenely high damages, so it may be a more simply and preferable option to a traditional arbitration agreement.

Agreements to Shorten the Statute of Limitations

Secondly, employers can attempt to limit the amount of time employees have to assert employment claims. In Thurman v. DaimlerChrysler, Inc., the 6th Circuit held that a clause in an employment application limiting the statutory limitations period for filing a lawsuit against the employer was valid. Thurman's employment application with DaimlerChrysler contained a clause waiving any statute of limitation and agreeing to an abbreviated limitations period in which to file suit against the employer. Specifically, the clause stated:

READ CAREFULLY BEFORE SIGNING I agree that any claim or lawsuit relating to my service with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.

The Court held that the abbreviated limitations period contained in the employment application was reasonable, and that all of Thurman's claims against DaimlerChrysler were time barred by the six-month limitations period. The Court paid particular attention to the "read carefully before signing" language, and noted that it was in bold and placed conspicuously directly above Thurman’s signature acknowledging that she read and understood the document. It also found the specific language used was clear and unambiguous.

The advantage of using these types of clauses is that you can limit the duration of potential liabilities. For example, in Ohio employees have 6 years to file discrimination claims (other than age) under R.C. 4112.99. A clause such as the one in Thurman would shorten that time frame from 6 years to 6 months, a dramatic improvement.

I normally don't put disclaimers directly in my posts. But, these ideas are merely something to think about for your business. Please do not try this at home. For example, although not raised in the Thurman case, statute of limitations waivers should not seek to limit the statutory window for filing charges with administrative agencies because of the potential for a retaliation claim. Talk to a lawyer before implementing either of these options.

Employer must pay employee for time spent at the doctor

If an hourly employee is injured on the job, and the employer's workers' compensation carrier subsequently sends the employee to a doctor's appointment to re-evaluate the work-related injury, must the employer pay the employee for the time spent at the doctor? According to the 8th Circuit in Howser v. ABB, the answer is yes.

In the case, ABB offered Howser two choices for her doctor's appointment: it would compensate her for the time missed from work but deduct that time from her accrued paid leave benefits, or she could take an unpaid absence. Because she took the unpaid absence, ABB did not compensate her for the 3.8 hours she spent at the doctor's appointment. The Court held that because ABB's workers' comp administrator, its agent, directed her to attend the appointment, the 3.8 hours were "hours worked" under the FLSA for which she should have been paid:

Under the FLSA, an employer must pay an employee a minimum wage per hour worked.... Department of Labor regulations state that "time spent by an employee in waiting for and receiving medical attention on the premises or at the direction of the employer during the employee's normal working hours on days when he is working constitutes hours worked." 29 C.F.R. § 785.43.

This case is a good reminder that if you require a non-exempt employee to do something, you will probably have to pay for it.

What else I'm reading this week #24

One story that has received a lot of press this week, but that I have not touched, is the $100 million tip pooling judgment received by Starbucks lead employees. This claim seems to be unique to California wage and hour laws, which requires all employees, even supervisors, to receive their fair share of tips. Kris Dunn, The HR Capitalist, has what is probably the best take I've read on this case.

Mark Toth over the Manpower Employment Blawg, however, has the post of the week. Click on over to read about a grievance filed by the Teamsters complaining that a school had violated its collective bargaining agreement by using goats instead of union workers to clear brush.

Dan Schwartz at the Connecticut Employment Law Blog writes about the "ministerial exception" to Title VII and a case in the 2nd Circuit which held that it is unconstitutional to apply Title VII to certain religious institutions.

Rush Nigut's Rush on Business asks whether it is a good idea for employers to permit employees to start side businesses.

The Washington Labor, Employment, and Employee Benefits Law Blog reports on criminal charges brought against an employee who took company documents. In a bizarre twist, the employee is actually blogging about his own criminal trial. Keep in mind that civil liability also exists under the Computer Fraud and Abuse Act for employees who intentionally damage computer records.

Suits in the Workplace illustrates the dangers of ignoring a litigation hold in discovery.

Finally, the Labor and Employment Law Blog has a piece on how to use corporate wellness programs not only to reduce health care costs, but also limit potential liability.

Wall Street Journal on the surge of pregnancy discrimination claims

This morning's Wall Street Journal has a piece on the growth of EEOC pregnancy discrimination charges. According to the Journal:

Pregnancy-bias complaints recorded by the Equal Employment Opportunity Commission surged 14% last year to 5,587, up 40% from a decade ago and the biggest annual increase in 13 years.... The groundswell reflects both changing demographics and a new activism among mothers. It also shows that even now, 30 years after passage of the federal Pregnancy Discrimination Act, there is still confusion about what protections it provides. "I thought we were protected," said an advertising executive during a recent gathering of 100 working mothers. "Then I find out we can be fired while we're pregnant, employers can refuse to hire us -- what exactly are our rights?"

While employers can indeed fire, lay off or refuse to hire pregnant women, they can't single them out for worse treatment -- and they must be able to prove they held men to the same standards or asked male job candidates comparable questions.... Many women who bring complaints are surprised to learn that they don't have special protection from adverse treatment. One manager for a publishing company thought she was being discriminated against when her employer fired her for poor performance while pregnant, says Kimberlie Ryan, a Denver employment attorney. In fact, the manager couldn't prove her bosses knew she was pregnant when they decided to fire her, says Ms. Ryan. To succeed in a claim, a woman generally must be able to prove an adverse action was motivated by her pregnancy or her status as a mother.

Let me suggest that if you decide to fire an employee for poor performance while that employee is on maternity leave, you have a well-documented paper trail of issues, and that the first the employee will be hearing about these issues is not during the termination. Otherwise, it will be difficult to overcome a claim that the performance problems were invented as a pretext to terminate a pregnant employee.

Wal-Mart lawsuit for reimbursement of medical costs illustrates important HR issue

Wal-Mart is at the center of a huge public relationship mess after it has asked a former employee to reimburse most of the $470,000 its health plan paid for medical costs following a traffic accident. CNN.com has the details:

[Debbie] Shank suffered severe brain damage after a traffic accident nearly eight years ago that robbed her of much of her short-term memory and left her in a wheelchair and living in a nursing home.

It was the beginning of a series of battles -- both personal and legal -- that loomed for Shank and her family. One of their biggest was with Wal-Mart's health plan.

Eight years ago, Shank was stocking shelves for the retail giant and signed up for Wal-Mart's health and benefits plan.

Two years after the accident, Shank and her husband, Jim, were awarded about $1 million in a lawsuit against the trucking company involved in the crash. After legal fees were paid, $417,000 was placed in a trust to pay for Debbie Shank's long-term care.

Wal-Mart had paid out about $470,000 for Shank's medical expenses and later sued for the same amount. However, the court ruled it can only recoup what is left in the family's trust.

The Shanks didn't notice in the fine print of Wal-Mart's health plan policy that the company has the right to recoup medical expenses if an employee collects damages in a lawsuit.

Just because your company is legally entitled to do something does not mean that it should. Take the FMLA as an example. Section 104(c)(2) of the FMLA provides that if an employee fails to return from an FMLA leave of absence for less than 30 days, and for a reason other than the continuation, recurrence, or onset of a serious health condition or some other circumstance beyond the employee's control, the employer may recover any premiums that it paid to maintain group health coverage for the employee during the period of FMLA leave.

Is it a good idea to exercise this right? Consider the new mom who decides after her FMLA leave expires to stay at home with her newborn. That decision will absolutely leave the employer in the lurch. The employer might want to do something to send a message to other employees not to take advantage of the FMLA by taking the time off and then choosing not to return. But consider: 1) mechanically, how do you go about exercising this right; and 2) what negative message does it send if you go to court to collect this money? Keep in mind, even if you have written authorization from an employee to make certain paycheck deductions for sums owed, FMLA leave is unpaid. By the end of an employee's leave, there almost certainly will not be any pay left from which you will be able to make a deduction.

Take a look at some of the comments posted on CNN.com to its story:

Although this is a very stupid thing for a company that makes Billions to do, this doesn't surprise me really. Our society has migrated away from action based on morals and ethics to one that is only concerned about the letter of the law.

One of the most unconscionable things I have ever seen. Another reason to hate Wal-Mart and to never spend another cent there... I'd rather pay double somewhere else than help support a company capable of something like this.

Hey Wal-Mart why don't you just send your attorneys to the lady's house and dump her out of her wheelchair???

Before you decide to seek reimbursement from a former employee, think long and hard about the effect on your current employees, and whether it's good for your business to have them bringing these types of resentments against your business into the workplace.

An update on this story is available.

Plaintiff's history of homemade porn is not fair game in harassment suit

Whether or not a plaintiff was subjectively offended by an alleged hostile environment is a key element of proving any sexual harassment claim. One would think, then, that if a plaintiff is claiming that she was a offended by being subjected to porn in the workplace, it would be fair to cross examine her on her own history of home-made porn movies. No so, however, according to the Lorain County (Ohio) Court of Appeals, in Conti v. Spitzer Auto World Amherst, Inc.

Kristina Conti and two co-workers claimed that they were subjected to a sexually hostile work environment while employed at Spitzer Auto World. They claimed that two male sales managers subjected them to near-daily sexual harassment, including forcing them to view pornography on their computers, rubbing up against them from behind and touching their buttocks, and routinely questioning them about the color and type of their underwear, their private sex lives, and their interest in different sexual positions.

Spitzer's counsel engaged in following Q&A with Conti at trial, in an attempt to show that she could not have been personally offended by such conduct:

Q. Well, I hate to have to ask you this. But did viewing your videotape refresh your recollection as to whether you knew that adult film was being made? ...

A. You're asking how I felt about it?

Q. No ma'am. I'm asking you, isn't it true you knew it was being filmed?

A. I did not know it was being filmed.

Q. You would agree with me it was an adult film, correct?

A. Yes.

Q. And you would agree with me, you were in it, correct?

A. Yes....

Q. You would agree with me at the very end of the tape, Ms. Conti, you said, "Should I turn this thing off now," didn't you?

A. I don't know exactly, but my recollection of what I said was something along the lines that this thing better be off, or turn this thing off.

The court of appeals ruled that the trial court abused its discretion in allowing that line of questioning. The court found that the evidence should have been excluded because it was not relevant to the harassment. It reasoned that permitting cross examination of a plaintiff about a sex tape she made with her husband does not tend to prove that she welcomes the sight of pornography at work. It may prove that she likes privately to film her and her husband having sex, but it does not prove that she welcomes sexual advances from a coworker or viewing porn starring people other than her and her husband.

There is something viscerally appealing about cross examining a sexual harassment plaintiff concerning her home videos. Yet, I get the point that what one does in the privacy of one's home with one's spouse doesn't necessarily translate to the same level of comfort with one's coworkers. At the end of the day, I think the court in this case got it wrong. More so in sexual harassment cases than any other type of employment case, credibility is key. In a he said/she said scenario, the jury has to be able to evaluate which party is more likely to be stretching the truth. If a plaintiff makes home pornos, can't a jury conclude that she is less likely to find pictures of other people having sex offensive? Shouldn't the jury have the right to evaluate her credibility in light of her obvious lack of prudishness? Certainly the evidence is relevant to her subjective state of mind in her level of offense at the porn. The question is how relevant, and whether it is simply too prejudicial. The trial court felt that it was not too prejudicial and admitted it, and the appellate court went too far in overruling that evidentiary ruling.

I'm curious to see if this case get retried, and if it comes out differently with Ms. Conti's home movies no longer before the jury.

My thanks to Donna Seale

For those who have been following my discussion with Donna Seale at Human Rights in the Workplace, she has posted what will be the last of our back and forth on Internet addiction and disability discrimination. For those who have not been following it, you can catch up with these links:

• My initial post: Is Internet addiction a protected disability?
• Donna's 1st response: Internet addicts: the next wave in accommodation claims?
• My rebuttal: Dealing with Internet addiction under the ADA
• Donna's 2nd response: Internet addiction - part two
• My conclusion: More on internet addiction
• Donna's conclusion: Internet addiction: the discussion continues

There's nothing else to say other than thank you to Donna for taking part in what turned into a powerful demonstration of what blogging can accomplish.

Would you promote your poor performers?

Would you promote an employee who ranked a 2 out of 10 on his or her last performance review? That is exactly what the Democratic and Republican parties are asking us to do. The Presidential campaign is referred to as one long job interview. Yet, the 3 people who are applying for the job get low marks from the public. According to RealClearPolitics, only 21% of the country approves of the job Congress is doing. Yet, John McCain, Hillary Clinton, and Barack Obama are all sitting Senators and vying for this promotion.

More on internet addiction

Donna Seale at Human Rights in the Workplace is continuing our discussion on the differences between American and Canadian disability discrimination law and Internet addiction. Her latest is as follows:

As for Mr. Hyman's comments that even if an employer paused to consider accommodating an Internet addicted employee the employee would still have to perform the essential duties of the job, I completely agree. Where we part company is on the approach to the actual question of accommodation. While it may not be easy to think up possible ways an employer could accommodate an Internet addicted employee who needed to use the Internet and e-mail to do her job, the law in this country still requires an employer to engage in that process. Failure to actually engage a process to consider what could be done to accommodate is, in and of itself, sufficient to trigger liability under Canadian human rights law even if no accommodation could ultimately be provided. (Besides, aren't there blocking devices employers can use to block employee access to non-work related Internet sites? -- speaking from a real non-techie perspective -- but I digress). In any event, accommodation is an individualized process and would have to be considered from the perspective of what would need to be done to accommodate the specific employee in question in their specific job in question, which may require a lot of an employer or, perhaps, not.

Let me respond as follows:

1. It is entirely defensible to terminate an employee with a disability if you don't know the employee has a disability, and you cannot make an accommodation if you don't know that one is needed.
2. If an employee requests an accommodation, the employer must engage in an interactive process to determine if there is a reasonable accommodation available that will enable the employee to perform the essential functions of his or her job with or without reasonable accommodation. Any accommodation that is provided need not meet the employee's preference -- it just must be reasonable.
3. In all likelihood, this interactive process will result in a dead-end for an employee who claims an Internet addiction. While there is software and other techie solutions to block access to certain websites, those solutions are expensive, hard to implement, and will probably cause an undue hardship on the employer.

In sum, I agree with Donna's conclusion:

Tread lightly whenever an employee raises a potential disability issue connected to their inability to do their job because whatever actions you take after being advised of the potential disability (whether it is Internet addiction or something else) may be considered discriminatory. Forewarned is forearmed.

Companies should not turn a blind eye to potential accommodation issues. Indeed, doing that could result in liability where it does not otherwise exist. In the case of an addiction, however, employees should not be able to lean on the ADA as a crutch to save their jobs when they permit their addiction (whether it's the Internet, sex, drugs, or something else) to pervade the work environment.

The importance of following established criteria

In Dunlap v. Tennessee Valley Auth., decided last week by the 6th Circuit, illustrates the dangers employers face when deviating from established criteria in the hiring process.

David Dunlap, a 52-year-old African American, was one of 21 applicants for 10 positions with the TVA. Before it began interviewing, the selection committee decided that the interview would account for 70% of an applicant's final score and technical expertise would account for the other 30%. While the committed would score each candidates after his or her interview, the committee would also review the the scores from all of the prior interviewees and re-score them. This "score-balancing" caused the final scores to vary widely from the initial scores. For example, Dunlap's attendance record of only a few days off for family illness was scored a 3.7, while two white applicants with the same answer scored a 4.2 and 4.5. Dunlap's perfect safety record received a 4, while another white applicant with two prior accidents scored a 6.

After the interviews, the 21 applicants were ranked in order of most to least qualified. Dunlap ranked 14th. Of the 10 hirees, only one was black. Dunlap alleges that the combined weight of his more than 20 years of technical and supervisory experience made him a more qualified applicant than some of the other applicants who were hired, some of whom had only minimal supervisory experience and poorer safety records. Dunlap scored the same on the technical part of the application as five of the selected white candidates, but he scored much lower on the interview. He alleged that the interview process was biased to select less qualified candidates and hide racial preferences. The Court agreed.

The Court found that the TVA's hiring matrix was a pretext for racial discrimination:

First, the selection committee determined that the interview would account for seventy percent of an applicant’s final score, and technical expertise would account for thirty percent, therefore transferring the bulk of the final score from an objective measurement (merit and experience) towards a subjective measurement (communication skills). The TVA’s "Principles and Practices" on filling vacant positions, however, mandate that "merit and efficiency form the basis for selection of job candidates," stating that "education, training, experience, ability and previous work performance serve as a basis for appraisal of merit and efficiency."

Thus, because the hiring matrix for these positions differed from the employer's established policies, the Court found the use of the matrix was pretextual. The Court also found that the interviewers' manipulation of the scores to ensure that certain people would rank in the top 10 was also evidence of pretext.

TVA's failure to follow its own established policies and practices is what ultimately doomed it in this case. If it had hired the same 9 white candidates instead of Dunlap, but instead relied solely on objective technical criteria as its "Principles and Practices" required, and had not balanced scores after each interview, it would have been close to impossible for Dunlap to have proved discrimination. The objective criteria were supposed to hire the 10 best candidates, not the nine best white candidates and one token African American.

The use of objective criteria, whether in hiring, or for selecting employees to be included in a RIF, is a great way to insulate your organization from a claim of discrimination. Those criteria, however, must be safe from scrutiny. When a subjective component is introduced, such as interviewing or "score leveling", it looks more and more like something other than objective qualifications are the deciding factor. Courts and juries like to think that companies hire and retain the best, most qualified people. If a plaintiff can show that numbers that were supposed to be objective are anything but, those same judges and juries will look for an explanation as to why. Often times, the answer they will find is discrimination.

Dealing with Internet addiction under the ADA

Last week, I asked whether the ADA affored protection to Internet addicts. I concluded that the ADA would not protect an employee who spends all hours of the workday surfing the Web for non-work reasons:

Rest assured, though, that even if the DSM recognizes Internet or email addiction as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.

Donna Seale at Human Rights in the Workplace, a blog on Canadian employment law issues, suggests that under Canadian discrimination laws, the result might be different:

While I agree with the premise that employers have a legitimate interest in ensuring employees remain productive and do not misuse company technology, the pendulum in Canada in relation to the accommodation of disability in the workplace has clearly swung in the direction of employees. As a result, I'm not so certain that Canadian employers who attempt to take a strictly black and white approach to the enforcement of technology use policies (for example) won't come into conflict with human rights legislation.

I agree that issues in employment relations are never black and white. Even something such as an "Internet addiction" falls into some shade of gray. I just think this issue leans much closer to either pole than the middle. If an employee is not doing his or her job, and is caught surfing the Net all hours of the day, the employer should have right to terminate that employee, whether for lack of productivity, theft, or violation of a technology use policy.

If the employee says in response to the termination, "But I am addicted to the Net," the employer has a choice. It can (1) carry through with its decision, (2) reconsider its decision and try to make a reasonable accommodation for the employee, or (3) hold the employee's job while the employee seeks help. The magnanimous employer may choose #2 or #3, but I don't think the ADA requires it.

The situation may be different if the employee requests an accommodation for the addiction before the termination decision, but in that case the employee still has to be able to perform the essential functions of the job with that accommodation. If the employee's job requires Internet and email access, it's hard to imagine an accommodation that would enable to employee to work.

What else I'm reading this week #23

Lots of really good practical advice this week:

Michael Moore of the Pennsylvania Employment Law Blog gives 5 things every HR employee should know about retaliation.

John Phillips, guest blogging at the Connecticut Employment Law Blog, tells us what to do with a problem employee who lacks any documentation to support the termination.

BLR's HR Daily Advisor provides 7 traps to avoid in managing employees with disabilities.

George's Employment Blawg talks about the use of surveys to measure employee satisfaction and other issues.

The HR Capitalist, Kris Dunn, blogs on how not to write vacation policies.

Finally, the Alaska Employment Law Blog talks about why it is not a good idea to conduct locker room video surveillance of your employee.

English-only rule at Philadelphia restaurant upheld

As a native of Philadelphia, nothing makes my mouth water more than a cheesesteak (please, please, don't call it a Philly cheesesteak, which is redundant, or a steak and cheese, which will just show your ignorance). You might be asking yourself, what do cheesesteaks have to do with employment law?

Geno's, one of the sacred temples of cheesesteaks at the corner of 9th and Passyunk in South Philly, had a small problem with the Philadelphia Commission on Human Relations about a sign hanging in its window that reads, "This is America. When ordering, please speak English." Yesterday, a split three-member panel of that Commission ruled that the sign did not convey a message that service would be refused to non-English speakers. Anti-immigration groups are heralding Geno's owner, Joey Vento, as a hero. Today's Philadelphia Inquirer reports that the one dissenting commission member relied on testimony from witnesses who "felt intimidated and unwelcomed by the sign's message. One witness, University of Pennsylvania sociology professor Camille Z. Charles, likened the 'speak English' signs to 'whites only' signs from the Jim Crow era."

While Professor Charles might be overly dramatic, her comments highlight the raw emotion that people feel over English-only rules. As the debate continues in Congress over the legality of English-only workplaces, and some state legislatures consider similar bills that would permit employers to require their employees to speak English, businesses should continue to tread carefully before implementing such a policy. English-only workplace policies should only extend as far as necessary to reach an articulated business reason (such as safety or work-related communication among employees), and it is a good idea to consult with employment counsel to evaluate whether the policy is not discriminatory as written or applied.

[Hat tip: Overlawyered]

Is Internet addiction a protected disability?

There is no doubt that addiction is a protected disability under the ADA and Ohio's parallel law. The Department of Labor provides the following helpful summary of the impact of the ADA on employees who have problems with drugs and alcohol:

• Employers may prohibit the illegal use of drugs and the use of alcohol in the workplace.
• The ADA is not violated by tests for illegal use of drugs (but remember to meet state requirements).
• Employers may discharge or deny employment to persons who currently engage in the illegal use of drugs.
• Employers may not discriminate against drug addicts who are not currently using drugs and have been rehabilitated or have a history of drug addiction.
• Employers may not discriminate against drug addicts who are currently in a rehabilitation program. (The EEOC has clarified that a rehabilitation program includes inpatient or outpatient programs, Employee Assistance Programs, or recognized self-help programs such as Narcotics Anonymous.)
• Reasonable accommodation efforts, such as allowing time off for medical care, self-help programs, etc., must be extended to rehabilitated drug addicts or individuals undergoing rehabilitation.
• A person who is an alcoholic may be an "individual with a disability" under the ADA.
• Employers may discipline, discharge or deny employment to alcoholics whose use of alcohol impairs job performance or conduct to the same extent that such conduct would result in disciplinary action for other employees.
• Employees who use drugs and alcohol may be required to meet the same standards of performance and conduct set for other employees.
• Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by Federal agencies pertaining to alcohol and drug use in the workplace.
• The ADA does not protect casual drug users; but individuals with a record of addiction, or who are erroneously perceived as being addicts, would be covered by the guidelines.

The bottom line is that the ADA does not protect the impaired, but does protect non-impaired addicts, those who are perceived as addicts, and those who have a record of past addiction. In other words, an employer can terminate an employee who is impaired on the job or tests positive for drugs or alcohol on the job, but cannot terminate someone who is in rehab, for example.

What about other addictions? From Engadget Mobile comes this story about email addiction:

Considering the plethora of facilities that have opened just in the past few years to deal solely with individuals that have become undoubtedly addicted to video games, the internet and all things Hello Kitty (we jest, we jest), we're not surprised one iota to hear that uncontrollably texting / e-mailing could soon become "classified as an official brain illness." According to a writeup in the latest American Journal of Psychiatry, internet addiction is a common ailment "that should be added to psychiatry's official guidebook of mental disorders." More specifically, Dr. Jerald Block, a psychiatrist at the Oregon Health and Science University in Portland, even goes so far as to argue that said phenomenon (neglecting basic drives to spend more time online) be "included in the [next edition of] Diagnostic and Statistical Manual of Mental Disorders, psychiatry's official dictionary of mental illnesses."

Here's a preview of what might be coming for employers:

• Employer to employee, "Our IT department tells us you've spent 20 hour a week for the past 3 months surfing the Internet on non-work related sites. We're going to have to let you go.
• Employee responds: "But I'm addicted to the Internet."
• Employer: "Sorry, your non-work use of the Internet is stealing."
• Employee's lawyer: "We're suing you for disability discrimination."

Likelihood of success aside, this scenario is not all that improbable to occur. Rest assured, though, that even if the DSM recognizes Internet or email addiction as a bona fide mental disorder, employers should still be able reasonably to regulate use at work without running afoul of the ADA. Just as the ADA does not entitle an employee who claims sex addiction to sexually harass co-workers, the ADA is almost certainly not going to permit an Internet addict not to perform his or her job.

Carnival of HR is available

Wally Bock's Three Star Leadership Blog has posted this fortnight's Carnival of Human Resources. To quote Wally:

Stroll down the midway and you will find posts full of wit and wisdom that will delight, amaze, and educate. But wait, there's more. You'll also discover new blogs you'll want to read.

Workers' comp retaliation case shows importance of careful documentation

If you don't want it read by your spouse, seen by your boss, considered by a jury, or splashed on the front page of the newspaper, do not write it down or send it in an email.

Cunningham v. Steubenville Orothopedics & Sports Medicine, Inc., decided this week by Ohio's 7th Appellate District, illustrates the pitfalls that await companies that terminate employees in the midst of a workers' comp leave. It also shows that managers and supervisors must be vigilant in what they put in writing.

Marianne Cunningham was an x-ray technician for Steubenville Orthopedics. She injured her back at work and took a six-week leave of absence after filing a workers' comp claim for her injury. After informing Steubenville Orthopedics that she would be able to return to work the following week, she was laid off. Among the evidence that the court relied upon in reversing the trial court's dismissal of the retaliation claim was certain notes kept by her boss, Dr. Amin, in his desk:

• Notes that specifically mentioned a back injury Cunningham had suffered at a prior job.
• Dr. Amin gave excessive absenteeism as the reason for Cunningham's termination. His notes, however, documented that Cunningham was only absent 6 times in the 30 months prior to her injury, while the employee who replace her during her workers' comp leave missed 5 to 10 days of work during a shorter prior of time and was not terminated.

I've often written about the importance of documentation in employment cases. The Cunningham case illustrates that what you don't document is often as important as what you do document. Steubenville Orthopedics's case was sunk because Dr. Amin did not carefully vet his thoughts before committing them to paper. His notes gave the court the evidence it needed to find that a question of fact existed on the issue of Dr. Amin's motivation for the termination. Dr. Amin will now have to come up with some non-retaliatory explanation for his notes that passes the red-face test in front of a jury, an unenviable position.

Update on Ohio Health Families Act

The Columbus Dispatch reports that the Ohio legislature is balking at the Ohio Health Families Act in its current form. The legislature has until May 8 to pass the OHFA. If it does not, Sick Days Ohio, the Union-led coalition of 180 different groups that sponsored the measure, would be entitled to circulate a petition to gather 120,683 signatures to qualify the law for placement on the fall ballot. A recent Columbus Dispatch poll shows that Sick Days Ohio likely would not have much problem obtaining those signatures. According to the poll, 76% of registered Democrats and 45% of registered Republicans favor the OHFA, while only 15% of Democrats and 44% of Republicans oppose it.

This wide bipartisan public support likely means that the OHFA will appear on November's ballot and will probably pass by a comfortable margin. In other words, Ohio's businesses better prepare themselves for the likely prospect of mandatory paid sick leave beginning in 2009.

Rehiring of "boomerang" employees poses unique problems

Raytheon v. Hernandez, decided by the U.S. Supreme Court in 2003, confirmed that an employer may lawfully refuse to rehire a previously terminated employee as long as the refusal is based on a neutral no-rehire policy and not on some protected trait. Today's South Jersey Courier Post talks about the benefits to employers to rehiring former employees who left on good terms, so called "boomerang" employees:

[A]s the marketplace becomes more globally competitive for skilled workers, companies find that it makes perfect sense to rehire former workers.... No longer is it seen as disloyal for an employee to go to another company for career opportunities, and employers are welcoming back former workers with open arms.

In rehiring a former employee, consideration must be paid to whether that specific rehiring decision will make a decision not to rehire another employee appear discriminatory. It may make perfect business sense to rehire one employee and not another, but if the rehired employee is outside a protected class, it may cause the rejection of other former employees to be questioned. If you have a blanket no rehire policy, it is best to either follow it, or be prepared to explain why you chose not to follow it in a specific instance. If you instead choose to rehire ex-employees on a case by case basis, make sure to have a legitimate business reason why one employee's request was granted and not another's.

What else I'm reading this week #22

This week's review starts with a couple of posts that should be of particular interest to Ohio businesses. Kris Dunn, The HR Capitalist, reports that Wal-Mart has overtaken GM as Ohio's largest employer. Meanwhile, The Union-Free Employer details a nasty labor dispute between the Service Employees International Union and the California Nurses Association for the right to organize at Ohio's Mercy Health hospital system.

The big news of the week, though, is hooker-gate in New York. Michael Moore at the Pennsylvania Employment Law Blog draws from Governor Spitzer's crisis some lessons for HR in scandal management .

Philip Gordon, the Workplace Privacy Counsel, has a great post on the problems inherent in dealing with a former employee's damaging web posts about your company.

Sticking with the technology theme, Rush Nigut's Rush on Business gives businesses some lessons in the litigation dangers presented by deleted emails, and Alaska Employment Law talks about the legalities of secret locker room surveillance.

Finally, John Phillips of The Word on Employment Law provides a helpful Q&A on employee handbooks.

Defamation liability in internal investigations?

Jackson v. City of Columbus, decided today by the Ohio Supreme Court, illustrates the importance of being thorough in all internal investigations of employee misconduct, and only disclosing the results of such investigations on a need to know basis.

The Mayor of Columbus asked his Columbus Public Safety Director, Thomas Rice, to conduct an internal investigation of his Police Chief, James Jackson, on allegations of police corruption. In June 1997, Rice presented his report of the investigation to the Mayor and released it to the public. In the report was a statement attributed to Keith Lamar Jones, an inmate at the Chillicothe Correctional Institution, which alleged that Jackson had impregnated a juvenile prostitute. A polygraph conducted during the interview of Jones concluded that he was deceptive during the interview but that his statements about the underage prostitute were not entirely invalid. Following the public release of the report, Jackson filed a defamation suit against the City. Both the trial court and the court of appeals found in the City's favor, in that the comment about the juvenile prostitute was subject to a public interest privilege. The Ohio Supreme Court accepted the case on the issue of whether one "commits defamation by publishing the defamatory statements of a third party when the publisher has a high degree of awareness of the probable falsity of those statements.”

Defamation occurs when a publication contains a false statement "made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." If a plaintiff makes out a defamation case, a respondent may then invoke a conditional or qualified privilege, which must be supported by "good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only." A qualified privilege may be defeated only if a plaintiff proves with convincing clarity that a publisher acted with actual malice. "Actual malice" is defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." "reckless disregard", in turn, means that a publisher of defamatory statements acts with a "high degree of awareness of their probable falsity," or when the publisher "in fact entertained serious doubts as to the truth of his publication."

The Ohio Supreme Court decided that the City abused its privilege in reporting that Jackson had impregnated a juvenile. First, the City relied solely on the word of a convicted felon with a history of being a liar, and who had a questionable polygraph result. Secondly, and perhaps more importantly, Rice never interviewed Jackson about the allegation. According to Jackson, had he been asked, Rice would have been told that Jackson had a vasectomy and could not have impregnated anyone.

Before you conclude that the Jackson case doesn't apply to your business, consider that it teaches some general lessons on the handling of all internal investigations. Ohio court have held that employers enjoy a qualified privilege to disclose the results of internal investigations. See Lennon v. Cuyahoga Cty. Juvenile Court; Blatnik v. Avery Dennison Corp. When conducting internal investigations into allegations of sexual harassment or other employee misconduct, Jackson highlights a couple of important points.

• Consider your source. Who is providing certain information is as important as the information that is provided. Do not take what a witness says at face value without taking into consideration the witness's credibility. Does the witness have history of truthfulness? Does the witness have something to gain in the outcome, such as a promotion if another employee is terminated? Is the witness biased towards either the victim or accused? These questions are important in determining how much weight to give to a witness's statements, if any at all.
• Only disclose to those who need to know. Confidentiality is key in any internal investigation, even more so if the allegations are as devastating as sex with an underage prostitute. The more widely you disclose the fruits of any investigation, the more you open yourself up to a claim that you have abused the qualified privilege. The best practice is to limit the sphere of knowledge to those who absolutely need to know, and further limit what is told to those who need to know. How much information to disclose and to whom is largely a judgment call, but as a rule of thumb less is better.

Ohio Senate proposes ban on sexual orientation discrimination

Senate Bill 305, introduced in the Ohio Senate yesterday, would include "sexual orientation" in the list of protected classes against which it is illegal for employers to discriminate. It defines sexual orientation as "heterosexuality, homosexuality, bisexuality, asexuality, or transgenderism, whether actual or perceived." According to today's Cleveland Plain Dealer, if S.B. 305 passes, Ohio would become the 22nd state to ban this type of discrimination. The Plain Dealer also points out that only one Republican crossed party lines to sponsor the bill, which does not bode well for its ultimate fate.

While this blog is unabashedly slanted in the employer's favor, I come down on the side of the employee on the issue of sexual orientation discrimination. As I've said here before, is difficult to argue, in 2008, that it is acceptable to condone intentional discrimination of an innate characteristic such as sexual orientation. I also understand, however, the impracticalities of extending the same protections to gender identity. A company should not be forced to accept a man dressed in drag (for example) if that is not the image its wants to project, or if it think such an image will harm its bottom line by driving away business or customers.

Revisiting the facebooking of job applicants

Several months ago I wrote about basing personnel decisions on an applicant's or employee's off-work online activities. Today, three articles on this same topic came across my screen that make this topic worth revisiting: Do Employers Using Facebook for Background Checks Face Legal Risks?; Facebook a risky tool for background checks, lawyers warn; and Employers may be searching applicants' Facebook profiles, experts warn.

These articles predict indefensible discrimination lawsuits and general gloom and doom for employers who use Facebook, MySpace, YouTube, etc., to conduct background checks on job applicants. They suggest that companies are unnecessarily risking liability in a landscape that is uncertain until courts are asked to lay down some rules on these issues.

What is going on here? I'm the first person to tell companies not to be the test case for emerging HR practices, and to let others blaze the trail by defending the inevitable lawsuits. I just can't see how a company can face liability if it non-discriminatorily looks for information on job applicants on the web. People put this information in the public domain for anyone and everyone to see. It's one thing if employers use Internet searches to pre-screen job applicants before the interview process. That's a big no-no, for the same reason we no longer ask job applicants to submit photos -- it reveals demographic information that an employer could use to screen out certain minorities, genders, and other protected groups. Once a company decides to consider an applicant and actually meets the person, those concerns disappear.

A couple of helpful pointers for companies to consider. As with all personnel practices, it is best to have a written policy for supervisors, managers, and others involved in the hiring process to follow. That policy should make clear that Internet sources cannot be checked until after a job applicant has been interviewed, and that if a search is going to be conducted for one applicant for a position, it must be done for all. It also not a bad idea to put a disclaimer somewhere on the job application stating that publicly available Internet sources may be checked post-interview as part of consideration process.