Offering of severance package found to be evidence of a constructive discharge

With the exception of a "for cause" termination, I am firm believer that most terminations should be communicated with an offer of some amount of severance pay. It not only cushions the blow for the employee who may be losing his or her job through no fault of his or her own, but also presents an opportunity for the employer to get something positive out of bad situation. For one thing, an offer of severance should always be tied to a release by the employee of any and all possible claims against the employer. Thus, the employer is buying certainty that the employee will not sue. The severance agreement also gives employers the chance to gain benefits such as a cooperation clause and promises as to non-disparagement and confidential information.

Courts should be protecting severance agreements as good policy in promoting harmonious employer/employee relationships. Yet, in Coryell v. Bank One Trust, the Franklin County Court of Appeals held that an employee who accepts a severance package in lieu of termination can claim a constructive discharge sufficient to satisfy the 2nd element of the prima facie case of age discrimination (the suffering of an adverse action).

As part of a reorganization of Bank One, James Coryell (age 49) accepted a severance package that provided him with 52 weeks salary and benefits continuation. The severance documents expressly stated that Coryell could continue to seek a new position with the company. Coryell testified that he believed he had no better option than accepting the severance package. Although Coryell did continue to look for an internal position, he ultimately obtained an job with a different company during the pay continuation period. Coryell alleged that after his separation he was replaced by a 42-year-old, which constituted age discrimination.

Coryell pursued his age discrimination claim under the indirect method of proof, which requires a prima facie showing that:

1. the plaintiff is a member of the statutorily protected class;
2. the plaintiff suffered an adverse employment action;
3. the plaintiff was qualified for the position; and
4. the plaintiff was replaced by a substantially younger person or that a comparable, substantially younger person was treated more favorably.

The trial court found, as a matter of law, that Coryell was "neither directly nor constructively discharged because he chose between meaningful options when he accepted the severance package." Because he was not discharged, it concluded that he could not establish the second element of his prima facie case, that he suffered an adverse employment action.

Coryell is not the first time an Ohio court has faced the issue of whether an employee who accepts a severance package can claim discharge. In Barker v. Scovill, the Ohio Supreme Court found that an employee who was offered termination with severance pay "made a conscious ,well-informed, uncoerced decision [and] should not now be allowed to cry foul." In Caster v. Cincinnati Milacron, the Hamilton County Court of Appeals found that an employee who was offered either the opportunity to obtain other employment with the company, 12 weeks layoff with the potential for recall, or permanent severance with a $100,000 payout, and who chose the latter, could not claim termination.

The Coryell court, however, distinguished those precedents and found that Banc One constructively discharged him by offering the severance package.

When a plaintiff chooses termination in lieu of other options, courts will not construe his decision as an actual discharge. Rather, the plaintiff must show that he was constructively discharged, i.e., that his or her choice of termination was involuntary or coerced. Courts generally apply an objective test to determine whether a plaintiff was constructively discharged, asking "whether the employer's actions made working conditions so intolerable that a reasonable person under the circumstances would have felt compelled to resign." ...

Here, in support of his contention that he was constructively discharged, Coryell argues that appellees stripped him of his title, position, responsibilities, functions, supervisory role, and involvement in day-to-day operations and management, leaving him with no real position. ... We agree with Coryell that this evidence creates a question of fact as to whether Coryell had any meaningful choice but to accept the severance package.

This case is a cautionary tale for all employers. If you are going to offer a severance package, make sure to get something of value in return. The best return on the investment is a clear, comprehensive, and enforceable release of all potential claims by the employee against the company. Once the employee releases the age discrimination claim, it becomes irrelevant if the employee had meaningful choice but to accept the severance package, or was constructively discharged.

Waivers of age discrimination claims present their own unique problems - namely a federal statute known as the Older Workers Benefit Protection Act. The OWBPA has specific requirements a release of federal age discrimination claims must meet to be valid and enforceable. Tomorrow, we'll take a look at the OWBPA and try to give a short refresher course on its key provisions.

Gas prices dictate new types of employment policies

Yesterday's Cleveland Plain Dealer ran an article on new types of perks that companies are making available to their employee to offset the rising gas prices. The options discussed:

• Helping potential car poolers connect.
• Adjusting workweeks so some employees can put in four 10-hour days instead of five 8-hour days, or offering flex time options.
• Handing out maps of bike routes and riding tips.
• Accommodating, and even subsidizing, mass-transit use.
• Offering work-from-home options.
• Making available forgivable, low-interest loans to help employees buy dwellings near work.
• Providing gas gift cards as rewards.
• Raising mileage reimbursements.
• Catering in-house breakfasts and lunches

I have some concerns about some of these perks. For example, gas cards might be a great idea, but it may have a negative impact on those who do not own cars. Thus, consider combining a gas card program with a bus pass program to make sure that all employees are equally covered by the benefit. In other words, my standard disclaimer with any employment policy applies - make sure that it applies on a non-discriminatory basis.

What I'm reading this week #34

For the past 12 years, it has been the law in the 6th Circuit that an employer cannot discriminate against a female employee because she had an abortion (see Turic v. Hollan Hospitality). This week the 3rd Circuit joined suit, and held that the term "related medical condition" in the Pregnancy Discrimination Act includes an abortion. The case is Doe v. C.A.R.S. Protection, and you can read about it on the LawMemo Employment Law Blog and the Nolo Employment Law Blog.

WorkplaceHorizons posts this week on two separate recent legislative issues: the little known Child Labor Provisions of the Genetic Information Non-Discrimination Act, and a potential compromise between employers and disability rights advocates on the ADA Restoration Act. For my prior thoughts on the ADA Restoration Act, see ADA Restoration Act unnecessarily seeks to broaden the definition of "disability". While these changes would be a step in the right direction, it would be a big mistake to amend the ADA to affirmatively state that mitigating measures should not be considered when determining whether an impairment materially restricts an individual's major life activity.

The Pennsylvania Labor & Employment Blog has some information on a topic that often plagues HR professionals, whether an employer is required to continue an employee's accrual of vacation benefits while out on FMLA or military leave.

The Delaware Employment Law Blog reports on mixed results for employers from the Families & Work Institute's recent study of flexible work benefits among U.S. companies.

We'll finish this week's review with a trio of articles about e-discovery. HR Tech News reports that employment lawsuits cause the most e-discovery headaches, while Rush on Business tells us why document retention policies are so important for businesses to have in light of that news. Meanwhile, ediscoveryinfo gives us 5 key misconceptions that businesses have about electronically stored information and their e-discovery obligations.

Crusader seeks to ban cursing - should businesses comply?

Jim O'Connor runs the Cuss Control Academy. He believes that America has developed an addiction to swearing that needs to be curbed. According to Jim: "Swearing can be rude, crude and offensive. It can reflect a bad attitude that hurts your image and your relationships. People might perceive you as an abrasive person who lacks character, maturity, intelligence, manners and emotional control." He suggests that instead of cursing, people use substitute words such as "balderdash" instead of "bullshit."

So, do companies need anti-cursing policies? No. But, businesses should not totally ignore foul language either. Instead, it should be treated like any other workplace behavior - dealt with when it offends co-workers, alienates customers, or reaches a level so extreme or outrageous that it may create a hostile environment.

Courts sets boundary on associational discrimination claims

Recall in Thompson v. North Am. Stainless, the 6th Circuit recognized a claim for associational retaliation, and held that "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."

At the time, I questioned the practical application of the Thompson decision by asking, "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?

Last month, the United States District Court for the District of Oregon, in EEOC v. Qwest Corporation, gave us some clarity on how close is close enough to support an associational discrimination claim. In that court's view, the law requires something more than just a friendship:

To maintain a claim of discrimination or harassment based on her association with a black person, plaintiff must show the existence of an association. The law requires something more than mere work-related friendship. There must be a significant connection between the plaintiff and the non-white person.

While I was writing tongue-in-cheek when I asked whether carpool buddies would be able to bring an associational retaliation claim under Thompson, it is refreshing to see a court take a practical look at this type of case and reject an associational claim made by a friend. As we try to figure out the limits of Thompson, these types of decisions are certainly worth following.

[Hat tip: Manpower Employment Blawg]

Just because paid family leave is a popular issue does not mean it is good for Ohio

Ohioans for Healthy Families, the union-backed group behind the Ohio Health Families Act, continues to try to gather enough signatures to have the OHFA placed on the November ballot. According to a May 28, 2008, press release by Ohioans for Healthy Families, the organization has:

already gathered over 50,000 new petition signatures and, with over 70% of Ohioans supporting paid sick day legislation, have no doubt whatsoever that we will be able to gather the number needed to put it on the November ballot. Personally, I think anyone running for legislative office this year while opposing paid sick days is playing political Russian roulette.

By law, if the Coalition gathers an additional 120,683 signatures by August 6, the Ohio Healthy Families Act will appear on the November ballot.
A poll on MSNBC.com of over 10,000 people reveals that only 28% oppose government mandated paid family leave. Further, as the MSNBC article points out, the United States severely lags behind most of the civilized world (and even some of the third world) on paid family leave benefits. The issue isn't whether paid family leave is a good idea or a bad idea. The issue is whether the Ohio Health Families Act, as written, is good for Ohio businesses, which it is not.
Separate and apart from the myriad ambiguities and other drafting problems in the legislation, which I've discussed before (see Deconstructing the Ohio Healthy Families Act), Ohio simply does not need to be on the forefront of this issue. Only three states (California, Washington, and New Jersey) currently require paid family leave. Nothing about becoming the 4h state to join this movement will make Ohio a more attractive business climate. We should be passing legislation to draw companies to Ohio, not drive them away.
There will come a time when paid leave will be a reality for all but the smallest of businesses in this country. If Obama wins in November, I expect that time to come in the next 4 years. Assuming that the OHFA makes the November ballot, Ohio voters will have to look past their own self interests and consider the greater good of the state. Is it more important to have a few days of paid medical leave per employee, or have more businesses choose to call Ohio home, which creates more jobs and less of a tax strain for everyone?

Accuracy of background checks poses potential problem for employers

Business Week magazine this week is running a story on the lack of accuracy in credit reports. The article claims that inaccuracies are a huge problem in the background checking industry, and gives a few heart-wrenching anecdotal examples to support the allegation. Dan Schwartz, at the Connecticut Employment Law Blog, has done the math, however, and estimates that only 0.000023 percent of all background checks end up in a complaint being filed with the Federal Trade Commission. Dan's conclusion: "Are there issues with faulty records on some? Absolutely. But the numbers presented in this article hardly suggests a rampant problem with background checks."

It's the faulty records, however, that present the biggest risks to employers. Third party background checks by employers on current or prospective employees are governed by the federal Fair Credit Reporting Act ("FCRA"). It has very stringent requirements employers must comply with before obtaining or using a background check from a third party:

1. The employer must first disclose to the employee or applicant that a background check will be done and receive written consent.
2. The employer must then certify to the consumer reporting agency that it made the disclosure and has obtained written consent. An agency that does not ask for this certification, or provides a background check in its absence, should be a huge red flag about its credibility and the credibility of the information provided.
3. Finally, if you are going to take an adverse action based on information disclosed in the background check (such as not hiring someone), you must first provide the applicant or employee with a copy of the report you received along with a copy of the person's rights under the FCRA (available directly from the FTC). An employer must then wait a reasonable period of time (5 business days) before actually taking the adverse action, at which time the applicant or employee must be provided with an adverse action letter under the FCRA.

Any one of these steps can cause potential liability issues for an employer, but the only risk of any real damages stems from using an inaccurate report. Let's say, for example, a company violates the statute, but in the process learns of an applicant's bona fide criminal history. That history automatically disqualifies the person from consideration. Even though the statute has been technically violated, how has the person been harmed by not being hired for a job he or she was not qualified for in the first place? If, however, the criminal history was faulty (for example, the person was the victim of identity theft), and he or she is disqualified without having the opportunity to dispute the inaccuracy, that violation of the FCRA could open a company up to the fully panoply of employment-related damages.

Just because FCRA is seldom enforced does not mean that it should be ignored. Compliance is relatively simple, and failing to comply is an unnecessary risk for businesses to take.

What I'm reading this week #33

The Delaware Employment Law Blog has been posting at a voracious clip. My favorite post of theirs from this week is The 5 Medical Conditions That Employers Don’t Want to See in a Candidate. For those that are too lazy to click over, the post talks about an article from Philly Burbs, which writes that employers avoid hiring anyone with obesity, depression, hypertension, high cholesterol, or musculoskeletal disorders. Let me put this as gently as possible -- unless you want to get sued, DO NOT consider any of the latter four, and tread very lightly if you are going to consider obesity, as a criteria for employability.

Meanwhile, Dan Schwartz at the Connecticut Employment Law Blog gives some useful information on how to properly draft severance agreements for releases of federal age discrimination claims.

The Pennsylvania Labor & Employment Blog asks whether companies can fire employees for personal postings on-line (personal blogs, MySpace pages, etc.). For my thoughts on this topic from late last year, take a look at Can employers base employment decisions on employees' personal internet activities?.

BLR's HR Daily Advisor gives some pros and cons for written job descriptions.

The aptly named Labor and Employment Law Blog lists 10 tips for avoiding IRS problems with independent contractors. I've also written before on some of the special consideration that companies must take into account when retaining independent contractors, in Court confirms that independent contractors can be discriminated against.

Carnival of HR #34 is available

Michael Moore's Pennsylvania Labor & Employment Blog is hosting this fortnight's Carnival of HR, the 34th edition, which is now available.

Ohio legislature considers permitting weapons in cars

Yesterday, the Ohio House passed a bill that would allow legal gun owners to carry their weapon in a car. Today's Cleveland Plain Dealer reports that the Senate is expected to follow suit, and Governor Strickland is expected to sign this measure into law.

The bill both allows people with a license to carry guns in parking garages, and prohibits landlords from barring tenants from owning or carrying guns. One question that remains unclear is whether employers will be able to prohibit employees from keeping guns parked cars. Employers can lawfully prohibit guns from entering the workplace. An employee's ability to store a weapon in his glove box will have significant implications on workplace violence issues.

While Ohio has permitted the concealed carry of handguns for more than 4 years, employers can still lawfully prohibit guns (and other weapons) from entering the workplace. Under the current concealed carry law, employers also can prohibit guns in vehicles parked on the business' property. It remains to be seen if the proposed revisions affect this latter restriction.

As the Ohio Senate takes up this law for consideration, let me suggest that it takes the effort to make it very clear that businesses can still choose to prohibit the transportation of firearms onto their property in vehicles. Otherwise, we might be left with ambiguities that could cause confusion.

Is it possible that one-fifth of companies violate the FMLA?

If you believe a headline from yesterday's Cleveland Plain Dealer, 20% of employers violate the FMLA. Or, at least that is what a recent study conducted by the Families and Work Institute concluded:

"There are so many reasons you could imagine an employer not complying," said Kate Kahan, director of work and family programs for the National Partnership for Women and Families. "The bottom line is the same, which is the employee loses out. This is such basic protection that it's horrible." ...

When employees are shortchanged, researchers and employment lawyers said, a combination of factors is usually to blame.

The troubled economy may discourage workers from challenging policies that deny them the full leave, said Ellen Galinsky, president of the Families and Work Institute. It's rare that the Labor Department independently investigates leave compliance; usually, an employee must file a complaint or lawsuit.

Employers may not know about the 15-year-old Family and Medical Leave Act, or they may not properly understand it, Galinsky and others said. The law applies to any employer with 50 or more workers in one area.

"I really don't think there's a law out there that is more confusing and causes more problems for employers than Family Leave," said Richard Meneghello, a partner in the Portland, Ore., office of Fisher & Phillips, a national employment law firm. He expressed surprise that the noncompliance rate wasn't higher than the report's 20 percent.

A full copy of the report by the Families and Work Institute is available for download: 2008 National Study of Employers (NSE).

Department of Labor spokesperson Dolline Hatchett disagrees with the report: "We know of no independent verification of their number. Compliance rates are hard to verify without sophisticated sampling techniques, and there is insufficient data in their analysis to allow one to assess an employer's compliance with the law."

Whether true or not, one thing is certain - managing FMLA leave programs is one of the most difficult tasks facing HR professionals and other management. The FMLA has layers upon layers of requirements that must be followed, both in determining whether one is eligible for leave, in certifying and granting the leave, and in administering the leave and eventual return to work. These protocols become exponentially more complicated when an employee takes leave intermittently instead contiguously. Even for those employers who think they are comfortable with the FMLA, earlier this year the Department of Labor published its proposed new FMLA regulations, adding 477 pages of new and amended responsibilities.

Nevertheless, this study points out one truism, not only about the FMLA but employment law in general. Education is crucial. There are a wealth of seminars available all over the country on every employment law issue imaginable. If your organization is big enough, consider bringing in a lawyer to do some specialized training sessions for your personnel. And, most importantly, when in doubt pick up the phone and call someone who can give you an answer to your question. Ignorance is not an excuse if a company violates the FMLA or any other employment law.

Supreme Court issues 2 decisions expanding scope of retaliation claims

Last December, I asked the question, "How far to the right has the Supreme Court swung?" This morning, the U.S. Supreme Court issued 2 decisions that suggest that it might not have gone as far to the right as first thought. Each of today's cases expands the scope of retaliation claims under federal employment discrimination statutes. In each case, the Court went beyond the plain language of the statutes to find a retaliation claim.

In CBOCS West, Inc. v. Humphries, the Court ruled 7-2 (with Justices Thomas and Scalia dissenting) that 42 U.S.C. 1981 permits a claim for retaliation when an employee complains of race discrimination.

In Gomez-Perez v. Potter, the Court ruled 6-3 (with Chief Justice Roberts, and again, Justices Thomas and Scalia, dissenting) that the ADEA prohibits federal employers, as opposed to private employers, from retaliating against employees who file complaints alleging age discrimination.

What is interesting about both of these decisions is that neither section 1981 nor the amendments to the ADEA that impose federal sector liability include the word "retaliate." Nevertheless, the Court has read that word into the meaning of the statutes by finding that "discrimination based on race/age" necessarily encompasses retaliation.

These opinions will have little impact on employers in Ohio. Unless you are the federal government, Gomez-Perez v. Potter will not affect you at all.

CBOCS West, Inc. v. Humphries will have limited practical impact for Ohio employers. Because of this case, it is now clear that an employee can bring a race retaliation claim without first filing a charge of discrimination with the EEOC under Title VII. Of course, this is already the case in Ohio under R.C. 4112.99. Moreover, claims under 42 U.S.C. 1981 are subject to a 4-year statute of limitations, 2 years shorter than the time period an employee has to bring a state law retaliation claim under 4112.99.

What is important to Ohio businesses from these cases is that they continue to demonstrate that the Roberts Court may not be as pro-employer as one might have hoped. Under Chief Justice Roberts, pro-employee decisions are out-pacing pro-employer decisions at a 2-1 clip. Several more employment cases are on the Court's docket, including the important issue of whether Title VII's retaliation provision protects 3rd parties who participate in an internal investigation without a pending EEOC charge. The direction of the Court's employment law pendulum is very much in play, and will continue to swing as these decisions are handed down.

Ohio Supreme Court permits 3rd party discovery by employers in OCRC investigations

Often times, companies have to respond to administrative discrimination complaints in a vacuum. They have a vague understanding of the allegations based on the few sentences in the charge form, and are limited to the information in their own files and records. Companies rarely if ever have access to the OCRC's own materials, and discovery is not part of the process. In State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., the Ohio Supreme Court opened the door to a whole new world of information to assist employers in defending against charges of discrimination, and held that at an employer's request the Ohio Civil Rights Commission must issue a subpoena during a preliminary investigation of an administrative complaint.

If you have been lucky to have never been part of an OCRC investigation, let me give you a quick summary of the process. Upon receipt of a complaint alleging discriminatory conduct, the Commission conducts a preliminary investigation into the allegations. The Commission's function during this first step is to discover evidence to determine if it is probable that an unlawful discriminatory practice has occurred. If the Commission determines there is no probable cause, it will dismiss the Charge. At that point, the employee has three options: 1) walk away; 2) appeal the dismissal to common pleas court; or 3) file a civil action under 4112.99. On the other hand, if the Commission finds probable cause, it will attempt to eliminate the discriminatory practice through conciliation. If conciliation fails, the Commission will issue a formal complaint prosecuted by the Attorney General's office at a formal hearing.

State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm. concerns the first step in this process -- the preliminary investigation. Carol Van Slyke, the charging party, filed a complaint with the OCRC against the American Legion Post 25 claiming that its executive director had sexually harassed her and fired her in retaliation for complaining about it. When contacted by the commission, the Legion explained that it had fired Van Slyke shortly after receiving an anonymous letter that she was a felony offender. During the investigation, the Legion requested, by letter from its attorney, that the OCRC issue a subpoena on its behalf compelling the production of information about her felony conviction. The Commission refused to issue the requested subpoena. The Commission did, however, during the investigatory phase, issue a subpoena on its own behalf for the same information. Because the information became the Commission's work product, the Legion was not permitted to review it. After the Commission issued a probably cause determination, the Legion filed suit to compel the OCRC to issue the requested subpoena.

In ruling that the Legion had a clear right to the issuance of the requested subpoena, the Court relied upon the plain language of R.C. 4112.04(B)(3)(b), which provides:

Upon written application by a respondent, the commission shall issue subpoenas in its name to the same extent and subject to the same limitations as subpoenas issued by the commission.

This decision provides employers with an important weapon in defending against OCRC complaints. Often times, employers are shooting in the dark responding to administrative charges. This case enables employers to defend charges on a much more level playing field by preventing the OCRC from limiting employer's access to factual information by hiding behind its curtain of agency work product. This tool is important for two reasons. First, and more obviously, it will enable employers to more efficiently gather key information at an earlier stage in the process to help get more charges dismissed as early as possible. Secondly, and perhaps more importantly, better access to information will limit unintentional misstatements by employers that a plaintiff could use against them in subsequent litigation.

No company wants to defend an OCRC charge. State ex rel. Am. Legion Post 25 v. Ohio Civ. Rights Comm., however, makes the process a little more palatable.

What I'm reading this week #32

The post of the week is from HR World, and comes in anticipation of next week's season finale of the best show on TV, Lost: 10 Things Every Manager Should Learn from "LOST".

I've recently discovered the Delaware Employment Law Blog, another excellent employment law resource, which this week gives us some thinking points for what it considers the top 5 wage and hour issues facing employers.

The Labor and Employment Law Blog also writes on a hot topic in wage and hour law, how to properly handle unpaid internships.

Staying on the topic of wage and hour laws, The Business of Management asks if the $100,000-a-year employee really deserves to be paid an overtime premium.

Michael Moore, who recently relaunched his blog as the Pennsylvania Labor & Employment Blog, provides his thoughts on an issue that more and more people may take to heart with gas prices passing $4 a gallon, telecommuting. If I can digress for a minute, when I started law school, I paid $.90 a gallon (now I sound like my grandparents talking about 5 cent movies). Last night, I waiting in a line 3 cars deep across 8 pumps to pay $3.76, which was more than 20 cents lower than any other gas station I've seen.

The Laconic Law Blog has some helpful pointers on properly handling severance pay.

Another recently launched blog, Nolo's Employment Law Blog, reports on the Families and Work Institute's study on work-life issues (such as job flexibility, time off, and health and retirement benefits). Despite all of the ink spilled about the importance of work-life balance to today's employees, the study found that not much has changed in terms of benefits employers have offered in the last 10 years. One clear trend is that employers are shifting more of the cost of these benefits to employees. For example, 16% of employers provide maternity leave with full pay, compared to 27% ten years ago. Also, only 4% of employers pay the full cost of family health coverage, compared to 13% ten years ago.

Finally, the Connecticut Employment Law Blog gives its take on handling anonymous workplace complaints.

Court rules that employee's cancer not sufficiently limiting for ADA protection

Employers often struggle with leaves of absence. The FMLA only requires 12 weeks of unpaid leave for a serious health condition. If, however, an employee has a disability covered by the ADA, an unpaid leave of absence longer than 12 weeks might be required as a reasonable accommodation. Before one can consider whether such an accommodation is reasonable or necessary, one must first address the threshold questions of whether the employee has a legally protected disability. Slane v. MetaMateria Partners, L.L.C., decided this week by the Franklin County Court of Appeals, tries to give us some guidance.

John Slane began working for MetaMaterials in October 2004. In June 2005 he was diagnosed with cancer. (Because he worked for MetaMaterials for less than 1 year, he was not FMLA eligible). He requested a 90-day leave of absence to allow for surgery, recuperation, and radiation treatment. Company policy provided a maximum of 30 days medical leave and 30 days personal leave, for a total of 60 days leave. A letter from the company to Slane dated July 22, 2005, stated that he would need to provide a written release statement from his health care provider upon his return to work.

On July 27, 2005, Slane completed a leave of absence form indicating that he began his leave on July 21, 2005, and expected to return to work October 21, 2005. The leave form was approved for a total of only 60 days leave, and specified that Slane had to provide a health care provider's release upon his return. Under company policy, if Slane did not return to work by September 19, 2005, with a release from his physician, he would be considered to have resigned.

In mid-October 2005, Slane informed his supervisor, Michael Gagel, that he was ready to return to work. Gagel told Slane that he would have to see if there was enough production for Slane to come back. Slane called again about two days later and, at that time, Gagel said that someone would be getting in touch. The next day, Slane tried to fill a prescription and was told at the pharmacy that he had no insurance. Slane called Gagel again, and Gagel told him he was checking on it. A week later, Gagel informed Slane that he did not have a job. Two days later the company confirmed that it had terminated Slane in September 2005 when he failed to return after the expiration of his approved 60-day leave of absence.

The Court found that Slane's claim failed because he did not have a legal disability. Cancer may be a disability, but to qualify as such one must show that it substantially limits a major life activity. The Court found that Slane's temporary physical impairment, albeit serious, did not rise to the level of a legally protected "disability":

Without a doubt, Slane's cancer of the right maxillary sinus was a severe disease or condition that necessitated surgery, removal of much of his right jaw, and radiation treatment. His cancer surgery left him with an "impairment" ... In terms of the duration of his physical impairments, Slane needed approximately 90 days to recuperate from treatment. The surgery left him with some difficulty in pronouncing his "s's" as well as difficulty producing saliva. After recuperating from his treatment, Slane testified that he was able to return to work with only minor limitations. The only permanent limitations were difficulty pronouncing his "s's," the need to clean his nose more frequently, and a dry mouth necessitating the need to drink water on a regular basis. Clearly, Slane presented evidence that he has a physical impairment as that term is used in the statute.

Merely having a physical impairment does not make one disabled for purposes of Ohio's disability discrimination statutes. Slane also needed to demonstrate that his physical impairment substantially limits a major life activity. "Substantially limits," as used under the ADA suggests "considerable" or "to a large degree." ... In terms of major life activities, Slane testified that, by October 2005, he could see, hear, think, climb, grasp, lift, sit, rise, walk, eat, breathe, swallow, brush his teeth, brush his hair, and sleep without difficulty. ... Slane's own testimony belies his claim that his cancer substantially limits his ability to perform the major life activities of speaking, breathing, eating, drinking, or swallowing as he had alleged.

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a "disability." This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me. At a minimum, this issue seems like a fact issue a jury should decide, not a legal issue for the court.

If Slane was disabled, the company could have had problems. While it had a clearly defined policy only permitting a 60-day maximum leave of absence, it probably should have held his job for the additional 30 days. The ADA does not require an indefinite leave of absence as a reasonable accommodation, but it does require some leave of absence. Six months is generally considered the outside parameters of what is reasonable. In this case, the company knew of a definite return date, but nevertheless stuck by its written policy of 60 days. That formalism could have gotten the company into trouble for failing to reasonably accommodate Slane's disability. On a jury of 8, at least 6 (if not all 8) would have someone close to them touched by cancer, a calculus that could have spelled doom for the company. The court bailed it out by finding that Slane did not have a disability in the first place.

President signs GINA - genetic information discrimination now unlawful

As expected, this afternoon President Bush signed the Genetic Information Nondiscrimination Act ("GINA") into law.

GINA adds "genetic information" to the list of classes of employees protected by the federal employment discrimination laws. It makes it unlawful for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee. "Genetic information" means, with respect to any individual, information about such individual's genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual. It does not include information about an individual's age or sex, which of course are already protected classes. As is the case with Title VII, GINA only applies to companies with 15 or more employees.

GINA also makes its unlawful for an employer to request, require, or purchase genetic information about an employee or an employee’s family member except:

1. Where an employer inadvertently requests or requires a family medical history;
2. Where an employer offers health or genetic services as part of a wellness program, the employee authorizes the disclosure in writing, and protections are in place to prevent the employer from discovering individually identifiable genetic information;
3. Where an employer requests or requires family medical history from the employee to comply with the FMLA's certification provisions;
4. Were an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
5. Were the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if written notice is provided to the employee, the employee authorizes the monitoring in writing, the monitoring is required by and complies with a specific law, the employee receives the results, and protections are in place to prevent the employer from discovering individually identifiable genetic information; or
6. Where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA. The employer is only permitted to disclose the genetic information to the employee upon a specific written request, in response to a court order, to comply with the FMLA's certification procedures, or other very limited circumstances.

Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

While genetic information discrimination may not be the most rampant problem facing employees, GINA nonetheless marks the first significant statutory change to the federal discrimination laws since 1991. Any such change should be cause for all companies to take a look at their current policies and HR practices to make sure that they account for this new protected class.

Interracial Association Discrimination found unlawful

Associational discrimination has become a hot employment law topic. The ADA expressly authorizes claims based on one's association to a person with a disability. Earlier this year, the 6th Circuit recognized an associational retaliation claim based on one employee's close relation to another employee who engaged in protected activity. Now, the 2nd Circuit has joined the 6th Circuit in permitting an associational discrimination claim based on the plaintiff's interracial relationship.

In Tetro v. Elliott Popham Pontiac, the 6th Circuit permitted an employee to proceed with a Title VII race discrimination claim based on his biracial child:

A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus for the discrimination is a prejudice against the biracial child. ... If he had been African-American, presumably the dealership would not have discriminated because his daughter would also have been African-American. Or, if his daughter had been Caucasian, the dealership would not have discriminated because Tetro himself is Caucasian. So the essence of the alleged discrimination in the present case is the contrast in races between Tetro and his daughter. This means that the dealership has been charged with reacting adversely to Tetro because of Tetro's race in relation to the race of his daughter. The net effect is that the dealership has allegedly discriminated against Tetro because of his race.

In Holcomb v. Iona College, the 2nd Circuit allowed a white assistant basketball coach to claim that he was fired because he was married to an African-American woman:

[W]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race.

Unlike associational retaliation claims, this type of associational discrimination claim makes sense under the statute. The adverse action is being taken "because of" the employee's race. The genesis of the discrimination is the fact that the employee is a different race than his spouse, which is "because of" his race.

The bottom line for employers - the race of your employees' spouses and children is none of your business. Supervisors and managers should not go out of their way to inquire about it. Diversity training should incorporate a component making employees aware that this type of discrimination is unlawful and will not be tolerated.

How to apply new email soliciation rules

Late last year, the NLRB issued its decision in Register-Guard, which determined that an employer can lawfully prohibit union-related use of company email systems if the employer has a consistently enforced policy prohibiting "non-job-related solicitations." If it was not clear before, after Register-Guard it is clear that an employer's email system is company property and "employees have no statutory right to use [the company's] e-mail system for Section 7 purposes." (For my prior discussion of this case, see NLRB rewrites employee solicitation rules).

To date, the NLRB has decided 5 cases under the Register-Guard standard. To help employers understand the position the NLRB will take on limitations placed on corporate email systems and other employee communications, it has summarized those 5 cases in a published memorandum, which I will further summarize for everyone.

Case #1: The employer had historically allowed the union to use the company's email system to conduct union business and to communicate with the employer about labor relation matters at the facility. Recently, the employer sent a letter to the union stating that it had knowledge that the union was inappropriately using the company's e-mail system by sending broadly distributed emails to company managers outside the facility. The letter cautioned that further similar activity could result in immediate suspension of the union's email account. The NLRB found the rule to be lawful because it concerned how the union was permitted to use the employer's email system and did not otherwise prohibit the union from engaging in protected communications outside the plant or to broad groups of managers.

Case #2: Both before and after the union's organizing campaign began, the employer maintained a no solicitation rule which, on its face, prohibited solicitation for any purpose during working time and in work areas. The employer, however, was inconsistent with its enforcement of the policy. For example, the employer warned and/or disciplined employees engaged in union solicitation activity, yet permitted non-union-related solicitations such as school fund raisers and Avon sales. Because the employer permitted direct solicitations for non-union/non-work purposes, its prohibition of union-related solicitations was discriminatory.

Case #3: The employer had a handbook provision which stated that its email system is intended for reasonable and responsible business purposes and is not intended for personal use, and that employees may not solicit during working time for any purpose. After sending an email communication about a union meeting, an employee received a written warning for using the email system for solicitation purposes in violation of handbook provision. Other employees, however, frequently sent non-work related emails while at work and during working times (such as chain letters, jokes, party invitations, and solicitations for candy sales) and were not disciplined. The NLRB concluded that the employee was unlawfully singled out because of the union-related content of his email. Case #4: An employee, who was dissatisfied with working conditions, circulated an email petition to try to drum up support to take the concerns to management. When the Board of Directors learned who was responsible for the petition, it terminated him for insubordination for participating in the "anonymous email scheme" and inappropriately using the employer's computers in violation of its policy. The NLRB concluded that the employer unlawfully discharged the employee for engaging in protected concerted activities when seeking the support to address working conditions. An employer may not rely on an employee's failure to adhere to a rule that prohibits protected activity as a basis for discipline. Further, because the employer's email policy allowed reasonable personal use of the computer and the employer permitted employees' extensive use of the Internet, email and other company equipment for their personal purposes, it disparately enforced its email policy against protected concerted activity.

Case #5: An employee union organizer led a delegation of union supporters into one of the employer's stores. The group handed the store manager a letter announcing of the formation of a union, together with a written list of demands regarding wages and working conditions. Simultaneously, other union members and supporters distributed union leaflets outside of the entrance. At the time of this event, the employer maintained two bulletin boards, one for official employer announcements and another for employee personal or general non-work-related matters. The employer had no written policy concerning the use of these bulletin boards. The next day, the main union supporter posted on the employee bulletin board the list of demands that had been given to the store manager, along with the union leaflet. The letter and leaflet were removed, yet other personal announcements remained. Thereafter, he noticed that all items that had been previously posted on the general employee bulletin board had been removed and employer materials were now posted there. The store manager informed the union organizer that employees were no longer allowed to post anything on the employee bulletin board. The NLRB concluded that the employer had an anti-union motive and that its actions were directly in response to the union activity. There was no disparate enforcement of a written company-wide policy, but an unwritten policy that was abruptly changed in response to union activities.

Conclusion: If an employer permits a union representing its employees to use the employer's email system, it can place reasonable limits on that use. If, however, an otherwise valid rule is promulgated or enforced for anti-union reasons, Register-Guard will not protect the employer's actions. The key is consistency. A neutral policy should be in place before any union activity or communication occurs. That reasonable policy should then be uniformly and consistently applied and enforced to avoid running afoul of the NLRA's protections for union and other concerted activities.

[Hat-tip: Manpower Employment Blawg]

Another take on second-hand harassment

Remember Reeves v. C.H. Robinson Worldwide from a few weeks ago. It allowed a plaintiff to proceed with a sexual harassment claim even though she was not the target of the alleged offensive conduct. The 6th Circuit has now also weighed in on this issue of second-hand harassment (sort of), in Bailey v. USF Holland, which we discussed Friday. (Please follow the link for the background of the Bailey case.)

The district court found "that a wide variety of racially motivated harassment occurred at the Nashville terminal." The district court concluded that "some of the conduct was, on its face, clearly racially motivated – such as the continued use of the terms 'boy,' 'hey boy,' 'damn it boy,' and variations thereof, in the face of the plaintiffs' requests not to be called those terms, and after the racial implications of those terms had been clearly explained at sensitivity training sessions. ..." The district court also noted that the “more overtly racially offensive behavior, such as the statement 'I can call him a low-down, dirty nigger and he won't mind' sheds light on the otherwise unclear motivations behind some of the other incidents."

Defendant argues that the effect of this overtly racial statement was minimal because it was made by an hourly employee and merely overheard by Smith. Defendant also suggests that the employee apologized to Smith and that the two of them were friends. This misses the point. The district court did not conclude that this statement itself created a hostile work environment; rather, it found that this statement "sheds light" on what could otherwise be seen as the ambiguous motivations behind some of the other examples of harassment"

In an atmosphere in which fliers depicting one of the plaintiffs as "the boy," nooses, and various other forms of "boy" graffiti were absent, the court might be inclined to believe that the plaintiffs were overreacting when their coworkers slipped the word "boy" into the conversation in more subtle ways. But in a work environment that included nooses, offensive flyers, "boy" graffiti, and other frankly racist behavior, the court concludes that, indeed, the plaintiffs were being baited by white employees in additional, more subtle ways.

Defendant is correct that "merely offensive" conduct does not establish a hostile work environment. ... But after reviewing the totality of the circumstances, the district court concluded: "[i]t is unlikely that, after Mr. Bailey and Mr. Smith had spent years complaining about the terms, a white employee could end a sentence to either plaintiff with 'damn it boy' and mean no offense."

This seems like a much more sensible treatment of second-hand harassment than what a different court did in the Reeves case. The 6th Circuit does not say that the second-hand harassment is actionable in and of itself. Instead, it takes the position that the evidence of second-hand harassment is admissible to shed light on the offensive nature of the work environment itself. In other words, while the use of the word "boy" could be innocuous, coupled with the fact that one of its utterers refers to one of the plaintiffs as "a low-down dirty nigger" strongly suggests that "boy" is anything but innocent. Thus, the "low-down dirty nigger" comment is not actionable as harassment in and of itself, but as evidence of the intent of the word "boy."

In responding to harassment complaint, prompt means prompt

In Bailey v. USF Holland, the 6th Circuit had occasion to examine whether the employer's response to two African-American employees' claims of racial harassment was sufficiently prompt to defeat liability. This case provides a good case study from which companies can learn how, and how not, to respond to an employee's internal complaint.

Bailey and Smith, both African-American, were dock workers for USF Holland. Throughout their employment, their white coworkers constantly subjected them to the word "boy." When they would complain to their coworkers that the word "boy" is offensive when directed at a black man, they would sarcastically respond, "damn it boy." The more they complained, the more serious the harassment would become. It moved from words to vandalism, including "boy" spray painted on equipment, etched into walls, used to depict black men in cartoon drawings, and even written on a calendar on MLK Day. The harassment was not limited to the use of the word "boy." Bailey discovered a noose hanging in the dock area, and Smith overheard one white coworker telling another that he liked Smith because he could call him "a low-down dirty nigger" and Smith would not do anything about it.

Two years after Bailey and Smith started complaining to management about the offensive use of the word "boy," a new terminal manager and the VP of HR decided to conduct "sensitivity training" at the terminal. During that training it was explained that "boy" was offensive to African-Americans because it was used as a racial epithet during slavery. During the training, "several white employees voiced resistance to the idea that it was wrong to refer to African-American men as 'hey boy' or 'damn it boy.'" One white employee, Fred Connor, even told the terminal manager that "boy" was a "southern thing" and he would continue to use it regardless of company policy.

Not surprisingly, the behavior continued for several months after the training, as did Bailey's and Smith's complaints to management. At that time, USF brought in an outside lawyer who conducted a three-day investigation. He concluded that "while the environment likely is not racially hostile [huh?], it is certainly one in which more sensitive employees can feel uncomfortable." As a result, the VP of HR wrote to Bailey and Smith, telling them that the company could not discipline any employees because the use of "boy" was not racially motivated and that everyone had denied the other alleged conduct.

As the graffiti and harassment continued, USF hired a handwriting expert and terminated the offending employee, Fred Connor. He filed a union grievance and was reinstated. After his reinstatement, Connor reiterated to the terminal manager that "he would not adhere to the policy and would continue to use the word 'boy' as he saw fit."

Finally, in 2006, 4 years after Bailey's and Smith's first complaint and a year after they filed their lawsuit, USF installed 25 security cameras, which finally ended the graffiti.

At a bench trial, the district court judge awarded Bailey and Smith each $350,000 in compensatory damages.

On appeal, USF argued that it could not be liable for the harassment because it took "reasonable, prompt, and appropriate corrective action." The 6th Circuit disagreed:

Defendant cites examples of its corrective action, noting for example that it "consistently had a reasonable harassment policy," conducted employee meetings to respond to plaintiffs' complaints, and disciplined the employee responsible for the graffiti. The district court correctly rejected these actions as insufficient. A harassment policy itself means nothing without enforcement, and the persistent harassment plaintiffs received over an extended period of time caused the district court to conclude that the policy was not consistently enforced. Defendant conducted employee meetings, but plaintiffs' coworkers stated that they did not consider their use of "boy" to be offensive and insisted that they would continue to use it. Defendant discharged Connor once it discovered that he created the graffiti, but he was reinstated soon thereafter. USF Holland was unable to stop the graffiti until it installed security cameras – an act it did not take until after plaintiffs initiated this lawsuit.

Termination of the alleged harasser is not the be all and end all of corrective action. Usually courts do not second guess an employer's course of remedial action. Indeed, had the sensitivity training succeeded in ending the harassment, I doubt that Bailey and Smith would have prevailed. When, however, the offending employee tells the VP of HR during sensitive training that he will continue calling black employees "boy," and others offer similar resistance, a company cannot turn a blind eye and hope that everything will work out. By the time employees started being disciplined and security cameras were involved, it was "too little, too late."

The timeline in this case spanned nearly 4 years from the first complaint to the installation of the cameras. In a case such as this, 4 weeks might not even be quick enough of a response. The severity of the response (i.e., counseling, discipline, termination) can vary depending on the severity of the harassment, but the quickness of the response cannot. Companies that allow problems such as these to fester and continue by dragging their feet in investigating and remedying them do so at their own peril, as the $700,000 verdict in this case illustrates.

What I'm reading this week #31

In my absence last week, I completely missed my blogiversary. It's been a little over a year now since I launched the Ohio Employer's Law Blog with my first post, The Song Remains the Same -- Has Burlington Northern Really Changed the Landscape of Retaliation Claims? A quick thank you to all of my subscribers, commenters, everyone who's linked to me, provided an idea for a post, and quoted me both online and in print, and to the more than 26,000 people who've visited. Without each of you, I highly doubt I would still be writing more than a year later.

And with that, on to the best of everything else I've read this week.

In Desert Palace v. Costa, the U.S. Supreme Court held that direct evidence of discrimination is not required to obtain a "mixed-motive" jury instruction. The HR Lawyer's Blog reports on a significant case out of the 8th Circuit this week that flat out disagrees with the Supreme Court. So much for stare decisis.

As someone who cannot get a lick of work done without music playing in the background, I was keenly interested in HR World's take on personal technology such as iPods in the office.

For similar personal reasons, I was also very interested in Guerilla HR's take on bad language in the workplace. For a good laugh, be sure to click through to the Cuss Control Academy.

The Business of Management asks if you have an "office spouse"?

Dan Schwartz at the Connecticut Employment Law Blog writes on the worth of companies that sell workplace posters.

The Evil HR Lady posts on the value of exit interviews.

Finally this week, The HR Capitalist gives one scenario of what can happen to a company when it tries to regulate the use of overtime.

Do your policies cover electronic message boards

The National Law Journal reports that "message boards in the workplace could be a troublesome new source of liability for employers." Many companies have policies that cover the use of traditional bulletin boards. What happens, however, if an employee posts on a company-owned message board that he wants to start a union? Can the company lawfully take action against that employee? What other liability risks do online message boards pose for employers?

DynCorp Inc. v. NLRB sets the standard for employer regulation of bulletin board use in the Sixth Circuit. Like many companies, DynCorp had a bulletin board in its employee cafeteria. Shortly after a union organizing campaign began, an employee posted a pro-union flyer on the bulletin board. A manager removed the flyer and threatened to discipline the employee who posted it. Shortly thereafter, the company designated the bulletin board "For DynCorp Business Use Only." DynCorp unsuccessfully argued that the bulletin board was for company use only and that the Company had consistently removed employee postings on the bulletin board in the past. The Court cited examples of other non-business related postings remaining on the bulletin board. Moreover, no employee had ever been disciplined, or even warned, for posting non-business related materials. Regardless of any policy, the employer's lack of consistency created a practice of allowing non-business related postings, and it was therefore unlawful to remove the pro-Union posting and threaten the employee.

As DynCorp illustrates, consistency is key. If a company want to limit online message boards to discussions of company business only, it must not only have a clear policy stating so, but it also must actively police the message board to prevent violations of the policy. A company cannot turn a blind eye to all sorts of non-troublesome non-business threads, but delete the first thread the pops up talking about a labor union. That selective enforcement is asking for trouble with the NLRB.

Liability risks do not end with the NLRA. Online message boards also present risks from employees who use them as a means to harass or defame a coworker, or post trade secrets and other sensitive confidential information. If a company is going to maintain an online message board, it should be incorporated into sexual harassment policies, technology use polices, and confidential information policies, so that employees understand that online malfeasance will not be treated any differently than any other workplace misconduct.

Of course, policing a message board is much more difficult, time consuming, and expensive than the traditional cork board hanging in a lunch room. That difficulty makes me wonder whether companies are just better off not having employer sponsored message boards in the first place.

Is mommy bias real?

The Cincinnati Enquirer writes that "anti-mommy bias persists. There's an assumption that once a woman becomes a mother, she won't be as competent at her job or as committed or dependable - without the employee ever getting the chance to prove herself." The article continues:

Mother's Day recognizes mothers for their dedication, resourcefulness and persistence. But some working mothers say that on the job, they're viewed in opposite terms. They say employers see them as less reliable, focused and committed than their co-workers, and weed them out of job interviews or bypass them for promotions. 

The practice has been labeled maternal profiling, and it is the source of a growing body of discrimination lawsuits being filed against employers. 

According to the Center for WorkLife Law at the University of California's Hastings College of Law, family-related discrimination cases increased by 400 percent from 1996 to 2005. Some workers sued because they were questioned about their marital status, family plans or child-care provisions during job interviews, then promptly dismissed. Other mothers say they were taken out of contention for jobs that required travel, long hours or physical labor.

But, does the empirical data support the popular notion of maternal profiling. HR World reports on a survey done by Adecco, the staffing firm, which suggests that mommy bias might be more fiction than reality:

Think what you want about parents in the workplace, but a new survey from Adecco found that 71 percent of working moms are likely to work late and respond to emails. That’s only two points below non-parents. However, 32 percent of workers would be less likely to ask working parents to stay late or answer emails after hours. 

Nonetheless, 49 percent of moms believe their companies should do better at helping achieve work/life balance. 

According to the survey:

• Do Moms Have It Better When It Comes to Access to Work/Life Balance?: Depends on who you ask! 60% of working moms think they have the same level of access to work/life benefits as non-parents. Less than half of non-parents (44%) agree with the statement and one in four (25%) non-parents think they have less access.
• Which is Harder to Manage?: According to working moms, managing career is a piece of cake next to managing family: 71% of working mothers find it more difficult to manage their family vs. career (29%).
• Career & Motherhood Can Go Hand-in-Hand: A majority of working mothers (59%) say becoming a mother has not impacted their career path, while 15% say its actually had negative impact on their career.

So, what's the answer? It mommy bias real, fiction, or somewhere in between? It's hard to ignore the realities of maternal profiling when companies are hit with multi-million dollar verdicts. At the same time, it is only a small minority or working moms (15%) who report that motherhood had a negative impact on their careers. At the end of the day, maternal profiling is real, but simply may not be as big of a problem as the Kohl's case makes it seem. Yet, 49% of moms still believe their companies should do better at helping them achieve work/life balance.

The takeaway for employers is that regardless of whether maternal profiling is as prevalent and widespread as some claim, it is still illegal sex discrimination. Separate and apart from the legalities of mommy bias, promoting a strong work/life balance is becoming increasingly important in the recruiting and retention of quality employees. Purposing screening out parents (moms and dads) from hiring or promotions needlessly removes a significant portion of the population of the workforce from a company. After all, today's young go-getter is tomorrow parent. Mommy tracking employees will result in a revolving door of younger, less qualified employees. And, it's illegal.

Carnival of HR is available

The Career Encouragement Blog has posted this week's Carnival of HR. Please take a few minutes out of your day to peruse the best of the of the HR blogosphere.

Cat fight on aisle 6: court leaves open the possibility that a handbook can create a contract

In White v. Fabiniak, Wal-Mart fired Carla White for threatening to "slap the piss" out of a co-worker, Stephanie Jeppe. Prior to the termination, White had used Wal-Mart's Open Door Policy to complain to her supervisor that Jeppe had been threatening her.

White was an at-will employee of Wal-Mart. At the start of her employment, Wal-Mart provided her an employee handbook that contained, among other provisions, an Open Door Policy. That policy provided:

If you have an idea or a problem, you can talk to your supervisor about it without fear of retaliation. Problems may be resolved faster if you go to your immediate supervisor first. However, if you feel your supervisor is the source of the problem, or if the problem has not been addressed satisfactorily, you can go to any level of management in the Company. But remember, while the Open Door promises that you will be heard, it cannot promise that your request will be granted or that your opinion will prevail.

White claimed that the open door policy created an implied contract between her and Wal-Mart, and terminating for using the policy violated that contract. The court of appeals disagreed:

The policy provides an avenue an employee may use in the event he or she has a work related concern, idea, or grievance. Within the context of the policy, therefore, Wal-Mart admits it will not terminate or otherwise punish an employee for choosing to share his or her ideas or problems with management. Read plainly, this is neither an implied or express promise of continued employment. Rather, it is merely an assurance that an employee can utilize the policy without concern of unfair reprisals on behalf of management or the company at large. ...

[W]e hold the plain meaning of the open door policy assured an employee he or she would not be retaliated against for utilizing it as a means to air his or her grievances. This does not imply the policy guaranteed an employee continuous employment if, for example, he or she breached a separate policy set forth in the manual in the course of utilizing the open door policy. ...

Nothing in the open door policy states that an aggrieved employee who decides to use the policy may utilize or threaten to utilize vigilante tactics if a particular supervisor does not handle the grievance in a manner the employee demands. Quite the contrary, the policy provides that, while an employee will assuredly be heard, an employee's view or opinion regarding the resolution of a problem will not always prevail.

Appellant does not specifically allege Chuba refused to hear her complaint, nor did she provide any evidence that her termination was retaliatory in nature. Appellant acknowledges, and the record demonstrates, she was fired for threatening Jeppe in violation of the workplace violence policy. Nothing in the record indicates Wal-Mart acted inappropriately in terminating appellant on this basis.

This opinion, however, may not be as pro-employer as it seems. It does not say that the employee handbook cannot create a contract, but merely that it does not in this case because Wal-Mart terminated White because she violated its workplace violence policy. The court did not find that White had no legal claim, but that Wal-Mart had a good reason to fire her. Thus, this opinion leaves the door open to the possibility that an employee can make a breach of contract claim if the employer does not have good cause for the termination.

Although unclear from the opinion, it is safe to assume that the handbook contained an at-will disclosure, such as: "This handbook is not a contract, express or implied, and does not guarantee employment for any specific period of time. Although we hope that your employment relationship with us will be long term, you are at all times an at-will employee, which means that either you or the company may terminate this relationship at any time, for any reason, with or without cause or notice." If that is the case, I fail to see how any employee could complain that the handbook creates an implied contract that the employer can breach, even if the employer admitted it fired an employee for using a handbook provision such as the open door policy.

Unless handbook disclaimers are to be rendered meaningless, employees cannot be permitted to bring breach of contract claims based on an employer's failure to follow a policy in the handbook. The claim must be based on some other recognized legal right, such as statutory retaliation or some public policy separate and apart from the handbook language itself.

Overtime not required for time not actually worked

One article that caught my eye last week while I was out was a piece by Tracy Coenen, on her Fraud Files Blog, about a scam that was uncovered in the Wisconsin prison system. It seems that under the prison's overtime policy, the guards figured out that they could call of sick for their own shift, but then pick up the next shift and collect time-and-a-half for overtime.

It appears that the Wisconsin prison system might be paying overtime when it is not otherwise required. Under the Fair Labor Standards Act, an employee is entitled to paid time-and-a-half for any hours in excess of 40 worked in a given work week. The key word is worked. Sick days are not days worked. Either are vacation days or paid holidays. In calculating the number of hours an employee has worked in a given week, you only look at the number of hours spent working. Now, there are a lot of variables to look at when determining whether an employee is working. But, for certain, sick days, holidays, vacations, and other paid days off are not time spent working.

Let's take as an example an employee who works Monday - Friday, 8 hours a day. That employee takes a paid day off on Monday, works 9 hours Tuesdays, and 8 hours each of Wednesday, Thursday, and Friday. At what rate should that employee be compensated for the extra hour worked on Tuesday - straight time or time-and-a-half? The answer is straight time. While the employee was paid for 41 hours that week, the employee only worked 33 hours. Thus, the employee did not work in excess of 40 hours in that work week.

Part of any wage and hour audit is a review of not just which employees are eligible for overtime, but the work rules under which overtime is calculated and paid. Depending on the size of your organization, thousands, tens of thousands, or even hundreds of thousands or millions of dollars could needlessly be paid to employees for overtime to which they may not be entitled.

What else I'm reading this week #30

After an exciting week in Tulsa, Oklahoma, I have returned. I hope everyone enjoyed some of the hits from the archives I ran last week in my absence. Before we get back to regular posting, let's take a look at some of what else we missed last week.

Recall that in Dewitt v. Proctor Hosp., the 7th Circuit permitted an associational disability discrimination claim to proceed based solely on evidence that the employment decision was made on the basis of increased medical costs. The Workplace Prof Blog reports that the 10th Circuit has followed suit, and permitted a family to bring a claim that they were fired because of healthcare costs associated with their son's illness.

The Pennsylvania Employment Law Blog provides a very thorough comparison of an employer's responsibilities under the FMLA and the ADA, with a helpful chart included.

Last week gave us two interesting posts on the improper use of workplace computers -- the Evil HR Lady on how to handle a termination for "extremely inappropriate web-site browsing", and The Word on Employment Law's John Phillips on potential corporate liability for an employee's use of company computers to store or transmit inappropriate images of children.

One more from the Evil HR Lady, on managing employees' expectations. To add my two cents, I think 90% of employment relations issues could be avoided simply by management having honest conversations with employees about the expectations of the job and the workplace - performance, production, conduct, rules, and policies should all be laid out up front (where possible, in a writing the receipt of which is signed by the employee) to avoid any confusion or disappointment down the road.

Kris Dunn, The HR Capitalist, writes about one company that decided that penalizing employees for smoking made for bad business and rescinded a wellness $100 penalty. Everyone should also check out Kris's new blog, Fistful of Talent. Kris describes it as a conversation on talent, which includes recruiting, in addition to everything you do with the talent once you've got it in the door.

Best of -- Lessons from Childrens' Lit

"Farmer Brown has a problem. His cows like to type. " So starts Click Clack Moo, Cows That Type, one of my soon to be two year old daughter's favorite books. In Click Clack Moo, Farmer Brown's cows and hens decide that they need electric blankets to keep warm at night in the barn. They deliver their demand to Farmer Brown on notes typed by the cows on a typewriter. When Farmer Brown refuses their demands, they go on strike, withholding milk and eggs. Ultimately, in a deal brokered by the duck, Farmer Brown agrees to accept the cows' typewriter in exchange for electric blankets. The labor dispute ended, and the cows and hens went back to producing milk and eggs. The deal backfired on Farmer Brown, though, as Duck absconds with the typewriter and leverages it into a diving board for the pond.

Click Clack Moo teaches us some valuable lessons:

1. Fair Treatment: The best means to avoid collective action by your employees is to treat your employees fairly. The barn was cold, and the cows and hens perceived that they were being forced to work in intolerable conditions. When Farmer Brown refused even to consider any concessions, they went on strike. If you want your employees to work hard, not unionize, and not file lawsuits, treat them fairly. Maintain reasonable, even-handed work rules and policies. Apply them equally. Don't discriminate. There is no guarantee that you'll stay out of court, but if you end up there, you'll have a much easier time convincing a judge and a jury of the rightness of your decision if you are perceived as being fair, reasonable, and even-handed.
2. Litigation is an Answer, But Not Always the Best Answer: Even in employment cases, where there are so many emotions in play on both sides of the table, it is only the most frivolous of cases that cannot not be resolved at some dollar figure. It is the job of the employer, working with its attorney, to strike the right balance between the cost of litigation and the cost of settlement. Convictions often get in the way, and often times litigation and trial is the only means to an outcome. But, you should always keep an open mind towards a resolution.
3. Don't Go It Alone: When resolving any case, make sure all your loose ends are tied up in a tidy agreement. Farmer Brown missed this last point. A well drafted agreement that included Duck would have avoided the added expense of the diving board. If Farmer Brown had retained competent counsel, he could have potentially avoided the problem with Duck (who probably went to law school).

Best of -- Use a wage and hour audit to proactively head off claims

"Wage Wars: Workers are Winning Huge Overtime Lawsuits," graces the cover of this week's BusinessWeek magazine. It should serve as a harsh wake up call for all companies. The article cites recent huge wage and hour settlements and verdicts, including an $18 million settlement paid by Starbuck's and eight and nine figure jury verdicts against Wal-Mart. In fact, the article estimates that American companies have collectively paid over $1 billion to settle these types of claims over the past few years.

The sweatshops of the 1920s and 1930s that led to the passage of the Fair Labor Standards Act and its 40-hour workweek are virtually non-existent. Nonetheless, claims for unpaid overtime continue to rise, more than doubling in the federal courts from 2001 to 2006. Almost always, these cases are not the result of the intentional withholding of overtime premiums. Instead, they fall into two classes: off-the-clock pay claims and the misclassification of employees. The former concerns pay for working through lunch breaks, donning and doffing gear, and required travel time. Regarding the latter, employees fall into two basic classes for coverage by the FLSA, exempt and non-exempt. Companies and the employees themselves often mistakenly assume that white collar employees are exempt, and blue collar employees are not. Paying an employee a salary (as opposed to an hourly wage), however, is not enough to qualify an employee as exempt. The FLSA only provides an exemption if an employee meets the specific qualifications for the executive, administrative, professional, outside sales, or computer employee exemptions. These exemptions are highly fact specific, and wholly depend of the nature of the actual work performed, and not a job title. For example, merely labeling an employee as a manager or supervisor is not enough to qualify an employee for the executive exemption, unless that salaried employee customarily and regularly directs the work of two or more other employees, and has the authority to hire or fire. The other exemptions have similarly stringent requirements (click here for a copy of the federal regulations on these exemptions).

The question is not whether companies need to audit their workforces for wage and hour compliance, but whether they properly prioritize doing so before someone calls them on it. According to the BusinessWeek article: "While violations appear widespread, employees themselves rarely think to make wage and hour claims. Instead, they usually have it suggested to them by lawyers." It is immeasurably less expensive to get out in front of a potential problem and audit on the front-end instead of settling a claim on the back-end. The time for companies to get their hands around these confusing issues is now, and not when employees or their representatives start asking the difficult questions about how employees are classified and who is paid what.