WIRTW #54

As I celebrate the Phillies first World Series title in 28 years, and Philly’s first title in any of the major sports in 25 years (believe it or not, the Phillies, Eagles, 76ers, and Flyers played a combined 9,029 games without producing a championship until Wednesday), we move our attention to more mundane issues, like next week’s Presidential election. Given the lack of media coverage over the last few months, I’m sure November 4 has snuck up everyone. So, I’ll try to catch everyone up on the labor and employment implications of next week’s vote:

• The Word on Employment Law with John Phillips gives us one last look at where the candidates stand on various pieces of legislation that impact employers.

• The HR Capitalist focuses on one key issue likely to be taken up by Congress early in 2009, the Employee Free Choice Act, and gleans some lessons from converse legislation in England three decades ago.

• The Workplace Prof Blog gives its take on politicking by employers, captive audience meetings for employees warning about the dangers of an Obama administration and how it could cause more economic pain by making it easier for unions to organize.

BLR’s HR Daily Advisor reminds everyone that it is fairness, and not the technical ins and outs of the law, that matters most to employees and juries.

On an issue I’ve spent some time discussing this week already, Law.com clues everyone in that the time is nearing to re-learn the ADA.

Fair Labor Standards Act Law addresses a very interesting issue, whether time waiting for a computer to boot at the beginning of the work day in considered “hours worked” under the FMLA.

The Connecticut Employment Law Blog asks what happened to the flood of ERISA fiduciary litigation that was supposed to come in the wake of Larue v. Wolff.

The Labor & Employment Law Blog reports that the Department of Homeland Security has reissued its final rule on the No-Match Safe Harbor Regulations. Recall that it was first issued last summer, and enjoined by the 9th Circuit. The rules have been in limbo since, and the new rules aim to address the 9th Circuit’s concerns.

The Federal Civil Practice Bulletin examines a decision that denied a motion to dismiss in a Title VII racial harassment case.

Will end this week with a little humor – HR World presents the annual list of the best employee excuses for missing work. The best, in my humble opinion:

• Employee said he had a heart attack early that morning, but that he was “all better now.”
• Employee was kicked by a deer (better not to ask for details).
• Employee contracted mono after kissing a mailroom intern at the company holiday party and suggested the company post some sort of notice to warn others who may have kissed him.
• Employee’s wife burned all his clothes and he had nothing to wear to work.
• Employee was up all night because the police were investigating the death of someone discovered behind her house.
• Employee’s psychic told her to stay home.

More on smoking as a disability

In commenting on my post on workplace smoking bans from earlier this week, Michael Moore at the Pennsylvania Employment Law Blog suggests that that the recent ADA Amendment Act (ADAAA) could make nicotine addiction a protected disability.

The recent ADA amendments significantly change the statutory definition of “disability.” In Sutton v. United Airlines, the Supreme Court held that whether an impairment substantially limits a major life activity must be determined with reference to the effects of mitigating measures on the impairment. For example, a diabetic who has the condition under control with insulin might not meet the definition of “disability.” The ADAAA expressly reverses that ruling by requiring the determination of whether an impairment substantially limits a major life activity is to be made without regard to the ameliorative effects of mitigating measures. Thus, when the amendments go into effect on January 1, 2009, a diabetic will be “disabled” under the ADA whether or not insulin is used to control the diabetes.

Michael argues:

The Americans with Disabilities Act was recently amended to expand the definition of “disability” to the point that it may encompass nicotine addiction. The few ADA cases on “smoking” as a disability have not recognized a claim based on the pre-amendment definition of disability. However, the rationale for denying disability status to “smoking” or “nicotine addiction” is squarely predicated on the remedial nature of the condition exempting it from coverage of the ADA as expounded in Sutton v. United Airlines, Inc. The ADA Amendments expressly abrogated Sutton.

Whether or not something is a disability with or without remedial measures, however, is only one step in the analysis. The next step is to determine whether that disability “materially restricts” (using the language of the ADAAA) a major life activity. What major life activity does smoking or nicotine addiction materially restrict? Breathing? Maybe, but only if one’s lungs are compromised from years of smoking. At that point, a bronchial disease might qualify as a disability, but how will allowing employees to smoke reasonably accommodate that disability? If anything, an employer’s anti-smoking initiatives present a better accommodation for an employee’s breathing problems.

I recognize that the ADAAA is going to expand the protections of the ADA beyond the scope of where courts have taken it in recent years. I do not believe, however, as some have argued, that it has been taken so far to encompass things such as nicotine addiction. We will have to take a wait-and-see approach on the post-amendment scope of ADA until courts start weighing in on exactly how broad the definition of “disability” has become. I stand by my earlier prediction, though, that smoking is not a protected disability under the ADA, a classification that should not change after January 1.

New FMLA regulations are on their way

On October 20, the Department of Labor forwarded its final draft of new Family and Medical Leave Act regulations to the Office of Management and Budget for its review. The OMB’s review process could take up to a month, and the OMB is expected to publish the new regulations some time in November.

In February 2008, the DOL proposed new FMLA regulations. It also asked for public comment. It is unknown what comments were received, and what changes, if any, were made to the proposed regulations as a result.

What we do know is that the proposed regulations suggested the following 12 key changes:

Changes to improve employers’ ability to plan and schedule around FMLA leaves:

1. An employee simply calling in sick does would no longer suffice as a request for FMLA leave. This change will greatly improve employers’ ability to plan and schedule around employees’ medical leaves.

2. Employers would be given greater latitude to deny a request for foreseeable leave if an employee do not provide sufficient notice.

3. An employee on intermittent leave for a chronic serious health condition would need to follow an employer’s standard call-in procedures for unscheduled absences. The employee would no longer be able to use intermittent leave and designate it as such after the fact.

Changes to the medical certification process:

4. The current process of employer conditionally designating FMLA leave as such pending the receipt of medical certification would be abolished. Instead, an employer would first advise an employee of his or her general eligibility for FMLA leave, and only approve the leave as FMLA-qualifying after the employee submits all of the required paperwork, including the medical certifications. This is one instance where bifurcating a process into two steps actually simplifies it.

5. Employers would be given more time to issue FMLA notices – five days instead of two – to employees requesting FMLA leave.

6. The DOL’s current medical certification forms would be revised.

7. Employers would be entitled to require employees to obtain certification of FMLA-eligible medical conditions twice a year instead of once.

8. Employers would be permitted to contact an employee’s healthcare provider directly to seek clarification or additional information about a medical certification, and would no longer have to go through the employee as an intermediary, or retain their own doctor to contact the employee’s doctor. While this change may have some effect on employee privacy, it will greatly improve the flow of information and streamline the ability of employers to make proper decisions based on full and complete medical information. This rule will also eliminate the expense and burden of companies having to retain their own doctors simply to ensure that a form is properly filled out.

9. Healthcare providers would be able to provide information on the diagnosis of the employee’s health condition on medical certification forms.

Changes to the meaning of “serious health condition”:

10. The meaning of “continuing treatment” under the definition of a serious health condition would be changed to specify that the two required visits to a healthcare provider must occur within 30 days of the beginning of the period of incapacity.

Other changes:

11. Employees would have a five-year cap on years of service for FMLA eligibility. This change would eliminate the problem of an employee working for a company for six months, leaving, returning 10 years later, and qualifying for FMLA leave after another six months of employment.

12. For employees that also qualify as disabled under the ADA, employers would be able to suggest reasonable accommodations that could preclude the need for FMLA leave without violating the FMLA.

I’ll have more on these new regulations, including which of the above changes made the final cut, when they are published in final form.

[Hat tip: BLR, c/o The FMLA Blog]

Do you know? Time off to vote on election day

Do you know? Ohio law requires that employers provide all employees a reasonable amount of time off to vote on election day. According to O.R.C. 3599.06:

No employer, his officer or agent, shall discharge or threaten to discharge an elector for taking a reasonable amount of time to vote on election day.... Whoever violates this section shall be fined not less than fifty nor more than five hundred dollars.

The time off does not have to be paid, but companies should be wary of docking salaried employees.

Next Tuesday is election day. Voter turnout is expected to reach an all-time high. Don’t make the mistake of disciplining employees if they arrive late, leave early, or take a long lunch because they are exercising their right to vote.

Are there legal risks with smoking bans?

I had the privilege of speaking last week at the COSE 2008 Small Business Conference. I received a question on the legality of workplace policies that prohibit employees from smoking at all – during the work day, off work, anywhere, any time. As The Cincinnati Enquirer reports, there is a definite trend of businesses refusing to employ smokers. Companies view these policies are part of wellness programs that are used to control health insurance costs. Often, the programs not only prohibit smoking, but offer programs to smokers to aid in their efforts to quit:

Taking the employee wellness program to another level, a local company is refusing to hire smokers unless they enter a program to help them quit.

USI, the insurance and financial services company located downtown, started the program this year. The program applies only to new employees, who are tested when they are hired.

"We decided not to hire smokers because they add additional expense to our health plan and our ongoing operation," said Dennis Curran, chief human resources officer for USI's Midwestern region….

Nationally, the Scotts Miracle-Gro lawn-care company and the Cleveland Clinic have started similar programs. Locally, the Hamilton County Public Health agency also doesn't hire smokers.

29 states and the District of Columbia have so-called “smoker protection” laws – laws that elevate smokers to a protected class, making it illegal to discriminate against an employee because he or she smokes. Ohio is not such a state. Thus, in Ohio, there is nothing per se illegal about making employment decisions based on one’s status as a smoker.

As far as I know, this type of smoking ban has never been tested in an Ohio court. I have three thoughts, though, of possible laws that could be implicated by a blanket smoking prohibition:

1. The ADA: The ADA and its Ohio counterpart protect “addiction” as a disability. For example, a company cannot terminate an employee because that employee has a record of drug or alcohol addiction, or is perceived as a drug addict. There is a potential claim out there that employees who are addicted to nicotine are protected by the ADA. However, to be legally disabled under the ADA, it is not enough to simply suffer from some affliction. That affliction must substantially limit a major life activity. While a smoker is often addicted to nicotine, I fail to see how that addiction could be a disability protected by the ADA.

2. ERISA: Section 510 of ERISA prohibits employment actions taken with the specific intent of interfering with an employee’s ERISA benefits. Section 510, however, generally does not apply when the loss of benefits is a consequence of, but not a motivating factor behind, a termination of employment. There are lots of reasons why an employer may not want smokers in the workplace – the odor and the frequent smoke breaks are two reasons in addition to the added health costs. Moreover, the employee is not being hired because of an intent to interfere with health benefits, but the loss of benefits is coincident to the loss of employment. In other words, I think this claim has some sex appeal to it, but ultimately will fail on its merits.

3. Privacy: Ohio has no law the specifically protects employees in their private, off-duty conduct. For the same reasons that drug testing is legal, smoking inquiries should also be legal. The remedy for an employee who does not want to answer questions about smoking habits, or have a smoking panel included in a workplace drug test, is to look for employment elsewhere.

I think there should be little risk in enacting a workplace smoke-out, but these legal theories are untested. For small and mid-sized businesses then, the question becomes if you want to be the business that get such a policy challenged. There is nothing wrong with taking aggressive HR positions and testing the bounds of permissible policies. Make no mistake, though, it is not a questions of if a terminated employee will challenge such a policy, but when, and you better be prepared to defend the policy in court. In other words, as a small or medium-sized employer, are you better off taking a risk and implementing even a relatively safe policy such as an employee smoking ban, or letting larger, richer businesses test the bounds of the law and follow their lead when a court upholds the policy as lawful?

WIRTW #53

In honor of my beloved Phillies first World Series appearance in 25 years, I’m starting this week’s roster with a couple of sports-related posts. The HR Capitalist writes on the culture of losing, and the Trade Secrets Blog asks if Brett Favre misappropriated trade secrets when he left the Packers.

Work Matters discusses workplace vulgarity.

Case in Point picks up on the concept of the bulletproof employee in the context of a request for FMLA leave.

The Connecticut Employment Law Blog suggests that we look at the Presidential candidates’ resumes to help decide who to vote for.

Staying on the topic of politics, Suits in the Workplace gives some insight on the legality of discussing politics at work.

Bob Sutton takes the position that performance evaluations are broken and need to discarded, or at least reinvented and replaced.

World of Work and HR Observations both comment on the implications of mis-classifying an employee as and independent contractor.

Legalethics.com reports on a default judgment entered against a company for e-discovery violations and the destruction of evidence.

BLR’s HR Daily Advisor tells that employees cannot take the 5th in workplace investigations.

Until next week, “Why can’t us?” Go Phils!

Is administrative exhaustion a statutory or jurisdictional requirement?

It is axiomatic that a plaintiff must file a charge with the EEOC before filing a complaint alleging discrimination in federal court, and that the EEOC charge must contain a written statement sufficiently precise to identify the parties, to describe generally the action or practices complained of, and identify the specific type of discrimination alleged. Allen v. Highlands Hosp. (6th Cir. 10/21/08), which I discussed yesterday, may alter this conventional wisdom in a significant way. It held that exhaustion is a statutory element of a plaintiff’s discrimination claim, but not a jurisdictional requirement to filing suit.

In Allen, the plaintiffs’ EEOC charges alleged age discrimination, but not the specific disparate impact theory pursued in the case. The Hospital argued that the disparate-impact claim should be dismissed because the plaintiffs failed to exhaust their EEOC administrative remedies, and that identifying the specific claim of discrimination before the EEOC with sufficient precision is a jurisdictional prerequisite to maintaining that claim in federal court.

The 6th Circuit overturned its prior precedent and disregarded the employer’s argument. Six years ago, in Weigel v. Baptist Hosp. of E. Tenn. (6th Cir. 7/15/02), the 6th Circuit held that “federal courts do not have subject matter jurisdiction to hear [ADEA] claims unless the claimant explicitly files the claim in an EEOC charge or the claim can be reasonably expected to grow out of the EEOC charge.” In Allen, however, the court reversed court and held “that although administrative exhaustion is still a statutory prerequisite to maintaining claims brought under the ADEA, the prerequisite does not state a limitation on federal courts’ subject matter jurisdiction over such claims.”

The distinction between a jurisdictional and statutory requirement is significant. A jurisdictional requirement would serve as an absolute bar to any plaintiff pursuing a claim without exhaustion. By making this requirement statutory, the 6th Circuit makes available arguments such as equitable tolling, which would enable a plaintiff to stay in federal court even if the charge was filed late.

Practically, this ruling should have a minimal effect on discrimination claims in Ohio. Ohio’s state employment discrimination statute has no exhaustion requirement at all. Under Ohio Rev. Code 4112.99, an aggrieved employee can proceed directly to court without first filing any charge whatsoever with any administrative agency. Thus, in Ohio discrimination claims, exhaustion rarely becomes an issue. Where this decision may have some effect is in age discrimination claims. Age claims under Ohio law are subject to a short 180-day statute of limitations, as compared to all other forms of employment discrimination, which have a six-year filing period. An employee, however, has 300 days to file an age discrimination charge with the EEOC. For an employee who misses the shorter 180-day filing period under 4112.99, an EEOC charge and later federal lawsuit under the ADEA is always an option. Thus, this decision could impact those employees who miss the relatively short state statute and have to go the EEOC for relief to enable a federal court filing under the ADEA.

Cost cutting does not necessarily equate to age discrimination

Layoffs have become all the rage. Just yesterday, one of Cleveland’s larger employers, National City Bank, announced that it will be cutting 4,000 employees nationwide. Often, when companies look to cut costs, they will shed more senior employees in favor of hiring less costly employees, who are often, but not necessarily, younger. This strategy is exactly what Highlands Hospital Corp. employed that resulted in an age discrimination claim by two terminated employees. In Allen v. Highlands Hosp. (6th Cir. 10/21/08), the 6th Circuit reaffirmed that a plaintiff cannot support an age discrimination disparate impact claim by simply relying upon a general policy or practice, but must isolate and identify a specific employment practice that disproportionately impacts employees who are at least 40 years old.

Jo Ann Allen (age 63) and Debra Slone (age 53) were both employees of Highlands Hospital. The hospital’s CEO, Harold Warman, decided to terminate both of them for violating its patient privacy policy. Specifically, Allen and Slone removed the x-rays of Allen’s granddaughter without the patient’s written permission and signed a backdated documents to try to cover their tracks.

Allen and Slone sued the hospital for age discrimination. Among other claims, they alleged that Warman’s cost-cutting measures had a disparate impact on their age. Warman had been systematically terminating employees based on seniority to facilitate the hiring of new, less costly employees.

Contrary to the disparate impact claim, the statistics showed that Warman’s program did not necessarily disproportionately affect older employees at the hospital:

Date	Total # of Employees	Employees Age 40 and Older	Employees Younger than Age 40
July 1998	672	273	399
Dec. 2002	488	253	235
Dec. 2004	530	267	263

 

In July 1998, 40% of the hospital’s total employees, including Allen and Slone, were age 40 or older. By December 2002, that ratio increased to 52%, which also included Allen and Slone. Two years later, that number had slightly decreased to just over 50%.

A disparate impact claim involves employment practices that are neutral on their face but in application fall more harshly on one group over another. Plaintiffs that allege disparate impact discrimination under the ADEA must isolate and identify a specific employment practice that is allegedly responsible for the statistical disparities. it is not sufficient for a plaintiff to simply point to a generalized policy that leads to a perceived impact.

Allen and Slone argued on that the effect of the policy demanding the termination of the highest paid employees had a illegal impact based on age. The Court found, however, that the plaintiffs failed to isolate and identify “a specific employment practice that disproportionately impacts employees who are at least 40 years old”:

As we have already explained, the plaintiffs have at best alleged that HHC desired to reduce costs associated with its highly paid workforce, including those costs associated with employees with greater seniority. But the plaintiffs have not established that this corporate desire evolved into an identifiable practice that disproportionately harms workers who are at least 40 years old. Because Allen and Slone have simply “point[ed] to a generalized policy,” as opposed to specific practice, they have therefore failed to raise a genuine question of material fact with respect to their disparate impact claim.

Coupled with the compelling statistical evidence, the appellate court affirmed the district court’s dismissal of the age discrimination claim.

Disparate impact claims are much more seldom litigated than disparate treatment claims. Because it is likely that mass layoffs will increase as the health of the economy decreases, it is also likely that these types of claims will pick up in frequency. Because of the possibility of a disparate impact claim with a mass layoff, companies should consider conducting pre and post-layoff statistical analyses to ensure that otherwise neutral selection criteria do not unfair impact one group over another. A little planning can go a long way to preventing the type of lawsuit that plagued Highlands Hospital in this case.

[Thanks to Steve Sutton for sending this decision to me]

A labor & employment civics lesson

Today brings us two interesting posts detailing employment law issues to consider on election day. Michael Moore at the Pennsylvania Labor & Employment Blog and Dan Schwartz at the Connecticut Employment Law Blog both nicely summarize some of the key employment law issues that the next president might face.

If you are interested in a decidedly pro-business take on some of these issues, you should also take a look at website of the U.S. Chamber of Commerce, which has detailed information on a variety of workplace issues, including:

• Equal Employment Opportunity
• Absence Abuse and Medical Leave
• Paid Family and Medical Leave
• The Employee Free Choice Act

As we consider some of the more controversial of these initiatives (such as the Employee Free Choice Act), it’s important to remember that a President is but one piece in a complex governmental puzzle. Currently, if you count the two Independent Senators that caucus with the Democrats, the Dems hold a slim 51-49 lead in the Senate. Assuming that Senators Lieberman and Sanders continue to caucus on the left, nine current seats would have to change from red to blue for the Dems to reach the magic number of 60. Recent polling data suggest that the Democrats will certainly get closer to 60 than they are now, but it should prove very difficult to get over that hump.

Why is 60 such an important number? Because that is number needed to make the Democratic majority filibuster-proof. A filibuster is where a senator, or a series of senators, speak for as long as they want and on any topic they choose on the Senate floor. By way of example, Strom Thurmond once spoke for more than 24 straight hours to try to block passage of the Civil Rights Act of 1957. Practically, a filibuster permits one or more senators to derail a vote indefinitely, unless a supermajority (that magic number, 60) invokes cloture, which brings the filibuster to an end.

Because a filibuster poses such a huge risk, its threat is usually enough to derail controversial legislation without the support of at least 60 senators. Thus, if the Democrats don’t reach 60 (or even 58, depending on the inclinations of the two Independents), a Republican minority should be able to block controversial issues such as the Employee Free Choice Act.

On election night, while we watch the states change to red or blue on the electoral college map, it is equally important to follow some of the close Senate races. Without understanding both, one cannot truly decipher what the employment law landscape will look like after January 20, 2009.

Do you know? Ohio’s wage payment statute

Do you know? Ohio has a specific law that details how companies are to pay their employees. O.R.C. 4113.15 provides, in relevant part:

(A) Every individual, firm, partnership, association, or corporation doing business in this state shall, on or before the first day of each month, pay all its employees the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and shall, on or before the fifteenth day of each month, pay such employees the wages earned by them during the last half of the preceding calendar month….

(B) Where wages remain unpaid for thirty days beyond the regularly scheduled payday or, in the case where no regularly scheduled payday is applicable, for sixty days beyond the filing by the employee of a claim or for sixty days beyond the date of the agreement, award, or other act making wages payable and no contest court order or dispute of any wage claim including the assertion of a counterclaim exists accounting for nonpayment, the employer, in addition, as liquidated damages, is liable to the employee in an amount equal to six per cent of the amount of the claim still unpaid and not in contest or disputed or two hundred dollars, whichever is greater….

(D) As used in this section:

(1) “Wage” means the net amount of money payable to an employee, including any guaranteed pay or reimbursement for expenses, less any federal, state, or local taxes withheld; any deductions made pursuant to a written agreement for the purpose of providing the employee with any fringe benefits; and any employee authorized deduction.

In plain English, businesses have to pay their employees at least two time a month, at least as frequently on the 1st and 15th of each month. Of course, employers can choose to pay more frequently, but any less often would violate the statute.

If wages go unpaid for 30 days past a regularly scheduled payday, or 60 days if no payday applies (such as a vacation or bonus payout), the employer could be held liable for liquidated damages of the greater of 6% of the unpaid wages or $200, provided that there is not a legitimate dispute over the payment of the wages. For example, if an employee claims that they are owed unused vacation days on termination, or claims that a bonus is owed, and an employer disputes that claim in good faith (based on a policy, for example), the liquidated damages provision would not apply.

This law does specifically speak to the handling of unpaid wages on termination. One reasonable reading of the statute would make them due on the first regularly scheduled payday following the last day of employment. Another reasonable reading would make them due within 60 days after the last date of employment. The more prudent interpretation of the statute would suggest that employers make a habit of including final paychecks with the next regular payroll. However, under 4113.15(B), the employer will not incur any potential liability until 30 days after that next payroll.

Comment about employee’s job security leads to reversal of summary judgment in FMLA retaliation case

A maintenance technician with a history of back problems suffers from unpredictable episodes of back pain that temporarily rendered him unable to perform his job duties. As a result, his employer granted him intermittent FMLA leave. The problem worsened to the point that he needed FMLA leave of more significant duration. Prior to taking the leave, the employee claims that his employer’s HR Director told him “if I took that FMLA for that period of time, there would not be a job waiting for me, when I returned.” Shortly after the FMLA leave began, the company experienced a layoff, which required the company to let go one maintenance technician. The employee on FMLA leave was the least senior maintenance tech and was selected for the layoff.

He sues for FMLA retaliation, but the district court grants the employer’s motion for summary judgment and dismisses the claim. In Daugherty v. Sajar Plastics (6th Cir. 10/16/08), the 6th Circuit reversed the grant of summary judgment on the FMLA retaliation claim, finding that the HR Director’s comment was direct evidence of the company’s retaliatory intent:

Clearly, this unambiguous comment, which we must take as true at the summary judgment stage, constitutes direct evidence that Daugherty’s termination was motivated by unlawful, discriminatory animus. Alexander was Daugherty’s immediate supervisor and a decision maker at Sajar. A fact finder would not be required to draw any inferences to determine that Alexander retaliated against Daugherty when Alexander explicitly threatened such retaliation and the threat – that Daugherty would not have a job waiting for him when he returned from leave – was realized….

For its part, the company had valid reasons to lay-off and not recall Daugherty: he was the least senior employee in a bloated department, and he refused to provide medical certification when Sajar Plastics tried to recall him a few months later. One comment, however, from a person in a position of authority over Daugherty’s job, casts enough doubt on the company’s motive to cloud the legitimacy of its justifications and create an issue for trial. Let this case serve a cautionary story – be very careful in the words you select whenever dealing with anyone remotely engaging in protected activity.

WIRTW #52

Happy 1-year anniversary to my first attempt at a weekly column, What I'm Reading This Week. Thanks to all of my fellow bloggers who have given me ample links to post each and every week. On to this week's batch of links for everyone's betterment.

Work Matters reminds everyone to beware the dreaded "cc:" on company e-mails.

The Non-Compete and Restrictive Covenants Blog gives some practical information of the dangers in trying to enforce a non-compete agreement.

Wage & Hour - Developments & Highlights reports on the spate of class action lawsuits affecting the financial services industry, as if that sector needs another worry.

The steady and reliable Connecticut Employment Law Blog digests the new federal rules on attorney-client privilege.

World of Work discusses pending legislation that could become a reality after January, the Employee Misclassification Prevention Act.

The Pennsylvania Labor & Employment Blog, meanwhile, discusses another employee-friendly piece of legislation, the RESPECT Act.

The FMLA Blog reports on a case that I hope is an anomaly, in which an employer was put on notice of an employee's need for FMLA leave because she was crying.

The HR Lawyer's Blog warns against the dangers of snooping on employees' private e-mails and other electronic information.

The Word points out the distinction between gender differences and gender discrimination.

Old news is bad news for businesses: Labor & Employment cases remain most popular targets

Fulbright & Jaworski has published its annual report on litigation trends, and the news is scary for American businesses. Labor and employment cases remain the most numerous type of case pending in 2008. 47% of U.S. companies surveyed reported being sued in a labor or employment case. When you focus just on the Midwest, the number jumps to 54%.

Other highlights of interest to employers:

• Wage-and-hour lawsuits spiked 19%.
• After wage-and-hour, companies saw big increases in five other areas of workplace litigation: discrimination, employee privacy, ERISA, disability claims, and age discrimination.
• Of all of the different types of employment litigation, U.S. companies singled out race discrimination cases as creating the highest financial exposure, followed by sex discrimination, wage-and-hour violations, age claims, harassment, retaliation, disability, non-compete cases, and FMLA violations.

There are a lot of lessons that businesses can draw from these findings. I'd like to focus on two. First, especially in a down economy, it is naive for employers to think that claims brought by employees will decrease or even flat-line in 2009. If anything, these claims will increase even more.

There is no way to prevent yourself from being sued. But, there is one surefire way to limit the risk, which brings me to my second lesson -- training and preventative measures are key. Has your handbook recently been reviewed and updated? Have you done harassment and EEO training in the past two years? Are you supervisors and managers up to date on how to effectively discipline employees? Will your myriad wage and hour practices pass legal muster? If you answer "no" to even one of these questions, your company is at risk in becoming a stat in Fulbright's 2009 survey.

Think before you e-mail

E-mail is a dangerous thing. It's impulsive, it's hard to get rid of, and when you get rid of it judges use nasty words like spoliation. It's exactly because it's so easy that it has quickly become the preferred mode of business communication. Often, it used for a lot of things it shouldn't be used for, like stealing trade secrets, disparaging the boss, and sexually harassing co-workers. And don't get me started on the dangers of "reply all." A good rule of thumb is before you send any e-mail that might be the least bit controversial or dangerous, save it in a draft folder for 24 hours and revisit the next day when you've cooled off and can decide whether you really want to send it.

Now, Google thinks it has the answer, "Mail Goggles":

Sometimes I send messages I shouldn't send. Like the time I told that girl I had a crush on her over text message. Or the time I sent that late night email to my ex-girlfriend that we should get back together. Gmail can't always prevent you from sending messages you might later regret, but today we're launching a new Labs feature I wrote called Mail Goggles which may help.

When you enable Mail Goggles, it will check that you're really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you're in the right state of mind?

Is this tongue in cheek? I think it's a legitimate tool, but I'm not really sure. But the lesson in a good one to take to heart. E-mail is a powerful tool that I cannot imagine how I lived without (like my DVR and HDTV, but for very different reasons). With great power, though, comes the responsibility. Think before you email, always. Your company's risk manager will thank you for it.

[Hat tip: Lowering the Bar]

Do you know? Breastfeeding at work

Today, I start what will become a weekly feature, which I am calling, “Do you know?” I have a lot of different sources from where I get ideas – recent cases, newspaper articles, other blogs, search terms, or something else that happened to catch my eye. Often, I use one of these sources to give people some general information about a specific area of employment law. For example, take a look at recent posts on FMLA intermittent leave, or meal and rest breaks under the FLSA.

Starting today, and hopefully every Tuesday from now on, I’m going to be presenting a general refresher on a different topic. Today’s topic: breastfeeding employees.

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Did you know? Ohio has one of the most liberal breastfeeding laws in the country. R.C. 3781.55 provides:

A mother is entitled to breast-feed her baby in any location of a place of public accommodation wherein the mother otherwise is permitted. “Place of public accommodation” has the same meaning as in section 4112.01 of the Revised Code.

In April 2007, the Ohio Civil Rights Commission issued its first probable cause finding under this statute, against a fitness club that prohibited a member from breast-feeding her 6-month-old son in its daycare area.

Does this provision prohibit an employer from stopping a lactating employee from taking time out of her day to nurse or pump. Under 3781.55, the question hinges on the definition of a “public accommodation.” A “place of public accommodation” is any “inn, restaurant, eating house, barbershop, public conveyance by air, land, or water, theater, store, other place for the sale of merchandise, or any other place of public accommodation or amusement of which the accommodations, advantages, facilities, or privileges are available to the public.” This provision typically covers public areas that have to be accessible to the disabled. Because private work areas are not generally open to the public, this provision typically does not apply to employees. So, although there are cases on this issue, my best guess is that 3781.55 does not apply to the employer/employee relationship.

Just because 3781.55 might not protect a mother’s right to nurse at work does not mean that a company should immediately prohibit the activity. To the contrary, a company has to take a look at its other similar policies. A no-breast-feeding policy will, by its very nature, only apply to women. What other similar policies might a company have? Does it allow bathroom breaks during the work day? Smoke breaks? Other personal time? If so, a ban on nursing during the work day very well might be deemed discriminatory on its face, because it is necessarily targeted only at women. In other words, before you discipline that employee for taking break to pump, stop and think whether you want to risk the likely lawsuit and the bad publicity that will probably go along with it.

Spurned employee loses retaliation lawsuit for lack of protected activity

Alshafi Tate cleaned offices for Executive Management Services. He also had a year-long sexual relationship with his supervisor, Dawn Burban. Indeed, according to Tate, he and Burban had consensual sex two or three times per week, sometimes at work and other times at the home of a co-worker.(1) Tate decided to end the relationship after he got married, but Burban would repeatedly call his home, and would tell him that if the relationship ended, he would lose his job. When Tate rejected her ultimatum, Burban instigated an altercation that ultimately led to his termination for insubordination.

Tate sued the company for sexual harassment and retaliation. A jury found against Tate on the harassment claim, but in his favor on the retaliation claim. Despite the favorable verdict on the retaliation claim, the jury awarded him $0 in compensatory damages. The judge later awarded him $7,830 in back pay, and his lawyers $65,129.39 in fees and costs.

EMS appealed the verdict on the retaliation claim. In Tate v. Executive Mgmt. Servs., Inc. (7th Cir. 10/10/08), the 7th Circuit reversed the verdict on the retaliation claim, finding that Tate had not engaged in a protected activity:

In order to engage in protected conduct, Tate only has to show that he reasonably believed in good faith the practice he opposed violated Title VII. ...

Even if we assume, for purposes of argument, that there may be circumstances in which a person who rejects his supervisor's sexual advances has engaged in a protected activity, Tate has not shown that he "reasonably believed in good faith the practice [he] opposed violated Title VII." ... There is simply no evidence in the record that Tate believed that Burban's actions were unlawful. In fact, the only statements that Tate made to Burban were that they "were not good with each other" and he "was not messing with her anymore," statements which do not indicate that Tate believed he was being sexually harassed. ...

We do not dispute that Tate protested about Burban's behavior; the problem is that he did not necessarily believe that her behavior was illegal at the time. ...

The Court dodged the real issue - whether a person who rejects a supervisor’s sexual advances has engaged in a protected activity. More often than not, I think they would be.

This case, however, points out the importance of character in employment cases. An employment lawsuit often is a morality play, and the judge and jury will determine the case on the character of the actors. Did the employee perform worthy of keeping his or her job? Did they employee behave as the jurors would have in his or her situation? Did the employer treat the employee fairly? Did the employer treat the employee as the jurors would have liked to be treated?

In this case, there is little doubt that the jurors punished Tate for what it perceived as amoral behavior. He slept with his boss, cheated on his wife, and then sued only when it backfired on him. He was not a sympathetic character to whom the jury could relate. While the jury may have believed that the employer did not fairly treat him, they were more put off by Tate's own misconduct. Thus, the zero dollar verdict, and the appellate opinion that skirted the real issue.

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(1) I'm reminded of the following exchange from the Seinfeld episode, The Red Dot:

Mr. Lippman: It's come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
George: Who said that?
Mr. Lippman: She did.
George: Was that wrong? Should I not have done that? I tell you, I gotta plead ignorance on this thing, because if anyone had said anything to me at all when I first started here that that sort of thing is frowned upon... you know, cause I've worked in a lot of offices, and I tell you, people do that all the time.

WIRTW #51

It's impossible to escape news about the economy. The Connecticut Employment Law Blog lists 5 laws employers should be thinking about in today's economy. Meanwhile, Know HR lists 5 things employers should be telling their employees about their 401(K)s.

I've written previously on the ADA Amendments Act. Overlawyered discusses one attorney's argument that under the new ADA amendments, "being male" might qualify as a protected disability. Let me be the first to say that I'll eat my hat if any court ever says that my maleness qualifies as a disability.

The Delaware Employment Law Blog instructs on the handling of permanent replacement employees during a labor strike.

The Workplace Prof Blog discusses oral argument in a 3rd Circuit case on the issue of gender stereotyping under Title VII versus sexual orientation discrimination. The male plaintiff, who by all accounts acted very effeminate, argued that he was discriminated against because he did not conform to his co-workers' sexual stereotypes. The district court dismissed his sexual harassment claim because discrimination on the basis of sexual orientation is not unlawful. The appellate court will decide whether anti-gay discrimination is more based on sexual orientation or gender stereotyping. For my thoughts on this issue, see D.C. Court rules in favor of transgendered job applicant.

Work Matters argues that women should stop taking advantage of their sexuality by making bogus harassment claims to take revenge on men that had jilted them.

George's Employment Blawg talks about the importance of defining the terms of an independent contractor arrangement in a written agreement. I've also written before on this issue.

HRWorld writes on working through cancer.

The Privacy Law Blog reports on a 3rd Circuit decision which held that it was illegal for a labor union to access driver records for union organizing purposes.

Next week we'll celebrate the 1 year anniversary of this column, and announce a new weekly feature that will be joining the blog.

Supreme Court hears oral argument in Crawford v. Nashville - asks whether participating in an investigation equal protected activity

The Supreme Court started its term this week, and wasted no time hearing its first employment case. Yesterday it heard oral argument in Crawford v. Metropolitan Government of Nashville, which is out of the 6th Circuit. Crawford asks if Title VII's anti-retaliation provision protects an employee from being fired because she cooperated with her employer's internal sexual harassment investigation.

Vicki Crawford was terminated after she participated in an internal investigation of a sexual harassment claim made by a co-worker. The 6th Circuit held that her employer had no retaliated against her because participation in a purely internal, in-house investigation, in the absence of any pending EEOC charge, is not a protected activity. The Court reasoned that a contrary result would chill employers' investigations because they would not interview witnesses for fear of potential retaliation liability. Crawford, not surprisingly, has argued the converse, that employees will likely avoid aiding employers with internal investigations if they believe they can be fired for do so, which will chill the investigations.

The Workplace Prof Blog has a thorough analysis of the oral argument. The Justices' questioning seems to indicate that case can go either way. The Justices were clearly bothered by a couple of things. First, the opposition clause would only protect those who take the employee's side, and not those that might support the employer. Practically, this should be a non-issue because those employees that support the employer should not have to fear retaliation. Secondly, the Justices expressed a real fear about opening the floodgates to federal court with a slew of retaliation claims based on purely internal investigations.

It is here that I agree with Professor McCormick from the Workplace Prof Blog. Ultimately, this is a policy driven, and not statutory driven, case. It should come down to whether five of the Justices value protecting the sanctity of internal workplace investigations. It seems that the employee has the better of the argument. Employees already perceive that they can be fired if the company doesn't like what they have to say. As one who's done his fair share of internal investigations, take it from me that it's hard enough as is to get employees to voluntarily cooperate. Assurances of no-retaliation are usually necessary to get them to open up, if at all. A ruling for the employer in this case would make internal investigations all that much harder to conduct. Because internal investigations are essential to our harassment jurisprudence, the Court would be sending the wrong message by coming down on the employer's side in this case.

A call for the reform of ballot measures

It's so nice when labor and business gets together to make a common sense decision for the betterment of all. Last month, Ohio's labor unions and business organizations compromised on the removal of the Healthy Families Act from November's ballot. Now, Colorado's unions and employers have done the same on its four controversial ballot measures.
The Denver Post reports that labor and management have reached an accord that will remove the following four issues from its ballot:

1. Eliminating "at will" employment and requiring private employers to have a "just cause" with supporting documentation before terminating employees.
2. Mandating that all companies with 20 or more employees provide health insurance for workers and dependents.
3. Removing workers compensation's "exclusive remedy" provision, and permitting injured workers to collect workers comp benefits and sue their employer.
4. Holding corporate officials criminally liable for illegal company activities.

Look, these ballot initiatives are scary. In Ohio, one labor organization only needed 250,000 signatures to place the populist, yet very dangerous, Healthy Families Act on the ballot. A system that can be so easily hijacked by special interests looking to push an agenda needs to be fixed. Supposedly, we elect legislators to enact, and a governor to sign or veto, legislation. They are supposed to speak as the collective majority will of the electorate. Yet, the legislature and the governor would have had no say-so if 50% plus 1 voted in favor of the Healthy Families Act.
One possible fix is a super-majority (60%?) to pass a ballot initiative. Another is to require many more signatures than the relatively small number that currently suffices. A third option is to eliminate ballot initiatives altogether. On balance, the super-majority option seems to makes the most sense - it preserves the sanctity of our separation of powers, allows the populace to still have a direct say on issues they it deems to be of great importance, and limits the ability of dangerous laws to play to populist sentiments.
This change is necessary to protect our state's economy from what is coming down the pike in two years when labor unions begin gathering signatures for the next anti-business ballot measures, such as those that were recently removed in Colorado.

Determining the 12-month period for FMLA leave

The FMLA allows eligible employees to take 12 weeks of unpaid leave during any 12-month period. Don't assume, however, that the FMLA's 12-month period equates to a calendar year. In fact, the FMLA allows employers to choose from four different methods of calculating the 12-month period:

1. The calendar year.
2. Any fixed 12-month "leave year," such as a fiscal year, a year
   required by State law, or a year starting on an employee's
   anniversary date.
3. The 12-month period measured forward from the date any
   employee's first FMLA leave begins.
4. A "rolling" 12-month period measured backward from the date an
   employee uses any FMLA leave.

Employers are free to choose any one of these four methods, as long as the choice is applied consistently and uniformly to all employees. Once a company picks one, it cannot change to another without first giving all employees at least 60 days notice, and only if the change does not cause any employees to lose any leave time.

There are pluses and minuses to each of these options. The first two  options are definitely the easiest to administer. However, they could allow for employees' double-dipping. An employee with a serious health condition could take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year (provided the employee recertifies the need for the leave). The same 24-week problem could impact option three.

Under option four, each time an employee takes FMLA leave the remaining leave entitlement would equal any balance of the 12 weeks that had not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, four weeks beginning June 1, and four weeks beginning December 1, the employee would not be entitled to any additional leave until February 1 of the next year. However, beginning on the next February 1, the employee would only be entitled to four weeks of leave, with an additional four to accrue on June 1. and then again on December 1. This method offers employers the most flexibility, but is clearly the most difficult to administer and track.

Importantly, you have to designate one of these options. If an employer fails to do so, a court will apply the option that provides the most beneficial outcome for the employee.